Nos. 05-05-00632-CR, 05-05-00633-CR
Opinion issued March 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause Nos. 22310-422, 22311-422. Affirmed.
Before Chief Justice THOMAS and Justices O'NEILL and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant Melvin Clarence Hall appeals his convictions for forgery and tampering with a governmental record. After finding appellant guilty of each offense, the jury assessed appellant's punishment in the forgery case at two years' confinement in a state jail facility. In the tampering with a governmental record case, the jury assessed punishment, enhanced by two prior felony convictions, at fifty years' imprisonment. In two issues, appellant contends the trial court abused its discretion in allowing the arresting officer to testify as an expert witness that the driver's license was fictitious and that the trial court abused its discretion in admitting various penitentiary packets into evidence regarding the enhancement paragraphs. We affirm the trial court's judgments.
See Tex. Pen. Code Ann. §§ 32.21 (forgery); 37.10 (tampering with a governmental record) (Vernon Supp. 2005).
Although appellant couches his point in terms of sufficiency of the evidence, the substance of appellant's argument is that the trial court erred in admitting the various penitentiary packets into evidence in support of the State's allegations in two enhancement paragraphs that appellant had previously been convicted and imprisoned twice. We, therefore, construe appellant's point as an evidentiary point complaining of relevancy, not as a challenge to the sufficiency of the evidence to support the prior convictions. See Rosales v. State, 867 S.W.2d 70, 72 (Tex.App.-El Paso 1993, no pet.) (explaining that trial court evidentiary error is procedural and primarily one of conditional relevancy, while a claim evidence is insufficient to prove prior conviction is sufficiency challenge).
Background
In 2003, William L. McCullough, the complainant, ordered replacement checks from his bank to be delivered to his Arlington home. The checks, however, never arrived. On November 11, 2003, appellant attempted to pass one of the missing checks in Terrell, Kaufman County, Texas. The check was made payable to Home Depot in the amount of $1187.50 and was presented to the check-out clerk by appellant as payment for a generator/welder. With the check, appellant presented a driver license bearing his photograph and the name William L. McCullough. The store manager was suspicious and called the Terrell police. Terrell police officer Kenneth Moore responded to the call and arrived while appellant was still in the check-out line. The clerk gave Moore the check appellant had attempted to pass and the driver license appellant had presented. The driver license reflected appellant's photograph and the name William L. McCullough (McCullough license). At first, appellant insisted he was McCullough. Moore obtained appellant's consent to search his wallet. During the search, Moore found an identification card bearing appellant's photograph and the name Melvin C. Hall. Only then did appellant admit he was not McCullough. Moore determined the McCullough license was fictitious because the back strip was not raised as it would be on an authentic license and because the word "Texas" was misplaced on the front of the license. Appellant was arrested and charged with forgery and tampering with a governmental record. The welder was recovered and returned to the store. Also recovered was a Wells Fargo checkbook with checks bearing the name of William L. McCullough. At trial, Moore identified the check and the McCullough license as the same ones he obtained from the store clerk to whom appellant had presented them, and the State offered the check and the McCullough license into evidence. Appellant first objected to the admission of the exhibits on the basis there was no predicate "for the witness to testify about the driver's license." The trial court sustained appellant's objection. Thereafter, the State developed testimony about Moore's training and experience in detecting fictitious documents. Moore testified he had received on-site training from another officer with expertise in fictitious licenses, had reviewed documentation from the State showing different areas of a fictitious license, and had experience from several previous occasions in detecting fictitious licenses. Moore examined the documents in light of his training and experience and determined they were fictitious. The trial court overruled appellant's objection and admitted both the check and the McCullough license into evidence. William L. McCullough testified that he has lived in Arlington for thirty-seven years and works for American Airlines. He ordered new checks over the telephone to be sent to his home. McCullough expected a box of checks to arrive in November 2003, but the checks never arrived. McCullough identified State's Exhibit no. 2 as being the same type check and from the same series of checks he had ordered from his bank. The check reflected McCullough's address and cell phone number. McCullough testified he neither signed the check nor authorized anyone else to sign the check or to otherwise use his identity. McCullough testified the check showed his address in Arlington but the license presented was not his driver license nor had he authorized anyone to use his driver license. After the State rested its case in chief, appellant took the stand out of the jury's presence and testified that he understood he had a right to testify before the jury, but he did not want to testify. Without presenting any evidence, appellant rested. Admission of Expert Testimony
In each case, appellant complains the trial court erred by permitting Moore to state his "expert opinion" that McCullough did not sign the check and that the McCullough license was fictitious. Appellant also argues the trial court abused its discretion by allowing the State to rely on Moore's "expert opinion" in offering the check and the McCullough license into evidence. The State responds that appellant failed to preserve error about the McCullough license and the check because his complaint on appeal does not comport with any objection made at trial on which appellant received an adverse ruling. The State also contends that even if error is preserved, the trial court did not abuse its discretion in admitting the complained-of items, and even if there was error, it was harmless error because the items were admissible, without expert testimony, as instrumentalities of the crime. Finally, relying on Cooper v. State, 23 Tex. 331, 342-43 (1859), the State argues "[t]here was no need for an expert opinion that the handwriting was not appellant's when the license used to pass the check was fictitious and when the complainant testified that he did not sign the check; expert opinions are not required to establish what `any fool can plainly see.'" We agree with the State. McCullough testified explicitly that the signature on the check was not his nor was it authorized by him. He also testified that the McCullough license was not his license. Therefore, there was evidence from a fact witness that the check and McCullough license were fictitious, and expert opinion evidence was unnecessary. We conclude, therefore, that the trial court did not abuse its discretion in allowing Moore to testify and admitting the check and the McCullough license into evidence. We resolve appellant's first issue in each case against him. Admission of Penitentiary Packets
In the tampering with a governmental record case, appellant's punishment was enhanced by two prior felony convictions. Appellant complains the trial court erred in admitting into evidence the penitentiary packets reflecting the prior convictions because the fingerprints were insufficient to establish his identity and because there was a discrepancy in appellant's stated date of birth. The State responds that appellant's complaint about the penitentiary packets has been waived for various reasons. The State argues that appellant's complaints on appeal about State's Exhibit no. 8 is waived because his objection at trial does not comport with his appellate objection. As for appellant's complaints about State's Exhibit nos. 6 and 7, the State contends they are waived because appellant failed to object at trial to State's Exhibit no. 8, which contained the photographs and physical descriptions, including details about appellant's scars, on the same grounds raised about State's Exhibit nos. 6 and 7, i.e., due to the lack of clarity of or absence of the fingerprints. In other words, the State contends, appellant's objections are waived as to State's Exhibit nos. 6 and 7 because the same facts were proved by evidence later admitted without objection through State's Exhibit no. 8. In support of its argument, the State relies on Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App. 1993) (op. on reh'g). Alternatively, the State contends that even if appellant's complaint is not waived, the trial court did not abuse its discretion in admitting the exhibits. The State asserts that even without fingerprint comparison, there were sufficient identifiers to establish appellant was the same person named in those penitentiary packets. When properly authenticated copies of the convicting court's judgment and sentence are used, they are admissible at trial; however, the relevance of records showing a prior criminal conviction is conditioned upon the introduction of evidence sufficient to support a finding that the defendant on trial is the same person as the one previously convicted. See Rosales v. State, 867 S.W.2d 70, 72 (Tex.App.-El Paso 1993, no pet.). Although proving relevancy through a fingerprint match may be the most popular method of proving prior convictions for enhancement of punishment, it is only one method of proving prior convictions. See id. The State may also employ other methods such as matching a photograph of the defendant in a penitentiary packet or other official record to the defendant at trial. See Littles v. State, 726 S.W.2d 26, 31 (Tex.Crim.App. 1986) (op. on reh'g); Beck v. State, 719 S.W.2d 205, 209-10 (Tex.Crim.App. 1986). As proof of the prior convictions, the State offered and the trial court admitted, into evidence several exhibits. State's Exhibit no. 4 was identified as appellant's known fingerprints taken by Jim Lane and reflecting information given to Lane by appellant. That exhibit reflects the name Melvin Clarence Hall, a social security number, a date of birth of 7-25-52, and describes appellant as a black male, 5'10", brown eyes, black hair who was born in Texas. State's Exhibit no. 5 is certified to be a true and correct copy of appellant's arrest report containing sixteen pages as the same appears on file and of record in the office of the Kaufman County Sheriff's Department. It reflects a photograph dated 8-20-2004, fingerprints, a date of birth of 7-25-52 and the same, and different, social security number and physical description reflected on State's Exhibit no. 4. It shows appellant's address to be 2627 Maryland Avenue, Dallas, Texas 75216, and lists Maxine Hall, at the same address, as an emergency contact. Also within that exhibit is a "Pauper's Oath Application" bearing the name Melvin Clarence Hall, a date of birth of 7-25-52, place of birth Dallas, Texas, an address of 2747 Maryland Avenue, Dallas, Texas, and a home telephone number of 214-375-9719. It shows his nearest relative to be Maxine Hall with the same telephone number, and is dated 1-6-05. State's Exhibit no. 6 is a penitentiary packet with a cover letter dated March 18, 2004, referencing Melvin Hall, TDCJ # 311127, and explaining that after a diligent search the photograph could not be located. It references cause number F80-9957-MR, and shows a judgment of conviction of a Melvin Clarence Hall for aggravated assault, a third-degree felony, and punishment of 2 years in the penitentiary, a physical description, and a date of birth of 7-25-48. State's Exhibit no. 7 contains a cover letter for a requested penitentiary packet from the custodian of records of the Texas Department of Corrections explaining that it is complete except for the fingerprint card. It bears an inmate number of 268440, and references cause numbers F77-2874-JI and F76-4265-PI. It also contains a photograph and contains a judgment of conviction of a Melvin Clarence Hall for burglary of a habitation, a first-degree felony, and a sentence of three years, and an Order Revoking Probation. Also contained in that exhibit is a personal data sheet containing an emergency contact of Maxine Hall (mother) at 2647 Maryland Drive, Dallas, Texas, a date of birth of 7-25-48, a physical description similar to that contained in the other exhibits, and the following notations: "Marks and Scars: SC CHEST, SC CHEST, NM L ARM, SC NECK — Surg scar from lwr ctr chest to ctr lft sd neck, Needle tracks ind bend lft arm, Burn scar rt sd chest." State's Exhibit no. 8 concerns cause numbers F-9029120-RI, F-9000173-HI, F87-88280-HT, F8276247-LS and a photograph dated July 1990 and bears the TDCJ/BPP number of 335579. It reflects a judgment of conviction signed by Kelly Loving of Melvin Clarence Hall for the offense of burglary of a building in cause number F-82-76247-LS and a sentence of twelve years. It also contains a judgment of plea of guilty signed by Larry W. Baraka in cause number F-9029120-RI in Criminal District Court Number 2 of Dallas County for the offense of aggravated assault and punishment of five years in the penitentiary and a fine of $750. Also contained therein is a judgment on plea of guilty signed by Larry W. Baraka in cause number F-9000173-HI and a sentence of five years in the penitentiary and a $750 fine and dated August 29, 1996. Also contained therein is a judgment on plea of guilty in cause number F87-88280-HT signed by Jack Hampton reflecting a conviction of Melvin Clarence Hall for theft of property of the value of $750 or more but less than $20,000, and a sentence of eight years and a $300 fine dated January 20, 1988. Finally, that exhibit also contains a judgment signed by Kelly Loving in cause number F-82-76247-LS showing a Melvin Clarence Hall to have been convicted of burglary of a building and a sentence of twelve years. Also contained is a fingerprint card showing a birth date of 7-25-48, essentially the same physical description, TDCJ #335579, AND THE FOLLOWING NOTATION: "oper scars ctr chst/abdm tat WILD CHILD LEO insd rt f/arm." State's Exhibit no. 9 is a certified "abstract of birth facts" of Melvin Clarence Hall, reflecting a date of birth of 7-25-52 in Dallas County, Texas, father, Travis Clarence Hall and mother, Maxine Campbell. Jimmy Lane, Chief Investigator for the Kaufman County District Attorney, was the sponsoring witness of the penitentiary packets offered in support of the alleged prior convictions. Lane testified the fingerprints contained in the penitentiary packets were insufficiently legible to definitively compare to the appellant's known prints, and, further, that the date of birth reflected in those penitentiary packets was 12-25-48, not 12-25-52, as reflected on appellant's official birth certificate, which Lane had obtained. Appellant does not challenge the authentication of any of these documents. He only complains that because of illegible fingerprints and a discrepancy in the date of birth, the State did not sufficiently show he was the defendant shown to have been previously convicted, and, thereby, the conditional relevance of the documents. We conclude the record before the Court contains sufficient independent evidence to show appellant was the person named in the penitentiary packets regarding the 1977, 1982, 1988, and 1996 convictions. See Zimmer v. State, 989 S.W.2d 48, 51 (Tex.App.-San Antonio 1998, pet. ref'd) (citing Littles, 726 S.W.2d at 31). Therefore, even if the trial court erred in admitting into evidence the penitentiary packet for the 1980 conviction, trial court no. F-80-9957-MR, because it was not adequately linked to appellant, we conclude the error did not affect appellant's substantial rights and was, therefore, harmless. See Tex.R.App.P. 44.2(b). We resolve appellant's second issue against him. We affirm the trial court's judgments.