Arturo Reyes v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ARTURO REYES,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00165-CR

Appeal from the

346th District Court

of El Paso County, Texas

(TC# 20030D01588)

O P I N I O N

This is an appeal from a jury conviction for the offense of indecency with a child. The jury found two enhancement allegations to be true and assessed punishment at fifty years imprisonment. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Prior to trial, the State filed a notice of enhancement and habitualization stating that Appellant had been previously convicted of two felonies. The notice stated that Appellant had been convicted of delivery of cocaine in 1993 in Dallas County, Texas, and that he had been convicted of involuntary deviate sexual intercourse in 1986 in Cumberland County, Pennsylvania.

One day prior to trial, Appellant filed a motion to quash the allegation of the Pennsylvania conviction. Appellant asserted that: (1) the Pennsylvania penitentiary packet contained an indeterminate sentence of three to ten years; accordingly, the conviction could not be considered final and could not be used for enhancement because Texas law did not provide for indeterminate sentences; therefore, it must be presumed that Pennsylvania law was the same as Texas Law; (2) the use of the Pennsylvania conviction violated Appellant s equal protection guarantee in that the conduct constituting the offense in Pennsylvania might not have constituted an offense under Texas Law; and (3) the Pennsylvania statute was unconstitutionally vague on its face which rendered the Pennsylvania conviction void. The trial court ultimately denied the motion to quash.

The jury found Appellant guilty of the charged offense. Prior to the presentation of the evidence at the punishment stage of trial, Appellant filed a motion in limine requesting a hearing before evidence of the Pennsylvania conviction was offered in order to determine its validity and whether or not Appellant was the individual convicted of that offense in that there were no fingerprints in that penitentiary packet from Pennsylvania.

The State responded that as the Pennsylvania penitentiary packet contained Appellant s date of birth and photographs, the packet was admissible. The State also maintained that the jury could compare the photograph in the Pennsylvania packet to Appellant and then to the photographs contained in a Dallas County penitentiary packet which would be linked to Appellant by a fingerprint comparison. The court ruled that the Pennsylvania penitentiary packet was admissible. //

The State called a fingerprint expert to the stand who matched up a set of inked fingerprints from Appellant to the fingerprint contained in the Dallas County penitentiary conviction. He also matched Appellant s fingerprints to prints contained on the three misdemeanor convictions. Those four convictions as well as the Pennsylvania convictions were admitted into evidence.

II. DISCUSSION

In Issue No. One, Appellant asserts that the court erred in allowing the State to use a 1986 Pennsylvania conviction to enhance his punishment because the State failed to prove that Appellant was the person who was convicted of that offense. In order to prove jurisdiction, the State could prove the prior convictions by offering certified copies of the judgments and sentences, along with independent evidence showing Appellant was the same person named in the previous convictions. See Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986). Such independent evidence could include expert testimony matching Appellant s fingerprints to the fingerprints on the judgments, testimony of a witness who knew Appellant and knew of the prior convictions, or a judicial stipulation. Id.; Zimmer v. State, 989 S.W.2d 48, 50 (Tex. App.--San Antonio 1998, pet. ref d). It could also include photographs of the convicted individual for comparison with Appellant or identification information such as name, gender, height, eye color, hair color, and date of birth. Williams v. State, 946 S.W.2d 886, 895 (Tex. App.--Waco 1997, no pet.).

Permitting the fact finder to compare the visage of Appellant while in court with that appearing in photographs included in the pen packet has been held sufficient to establish identity. Zimmer, 989 S.W.2d at 51-52; Williams, 946 S.W.2d at 895; Yeager v. State, 737 S.W.2d 948, 951-52 (Tex. App.--Fort Worth 1987, no pet.); Felton v. State, 659 S.W.2d 482, 486 (Tex. App.--Dallas 1983, pet. ref d). In Littles v. State, 726 S.W.2d 26 (Tex. Crim. App. 1984) (op. on reh g), the Court held the State had properly proved the defendant s identity as to the first conviction through the use of fingerprints. As to the second conviction, the court reasoned that the jury had the capability to compare the photographs contained in the two exhibits and to conclude the photographs depicted the same individual. Id. at 32. Additionally, the Littles court pointed out the strength of a photograph comparison as compared to a written description.

In the present case, the Pennsylvania penitentiary packet contained front and side photographs which could be compared to the photographs in the Dallas County penitentiary packet and to Appellant in the courtroom. We find that Appellant s identity in the 1986 penitentiary packet was sufficiently proven. // Issue No. One is overruled.

In Issue No. Two, Appellant contends that the court erred in denying Appellant s motion to quash the enhancement allegation regarding the 1986 Pennsylvania conviction because it reflected an indeterminate sentence which is not allowed under Texas law. As stated, the sentence in the Pennsylvania conviction provided for an indeterminate sentence of three to ten years.

In Texas, indeterminate sentencing was abolished effective September 1, 1981. Manz v. State, 787 S.W.2d 580, 582 (Tex. App.--Houston [1st Dist.] 1990, no pet.); Morgan v. State, 703 S.W.2d 339, 341 (Tex. App.--Dallas 1985, no pet.); Lane v. State, 659 S.W.2d 450, 455 (Tex. App.--Houston [14th Dist.] 1983, no pet.). However, as Appellant s contention constitutes a collateral attack on the validity of the conviction, the burden is on him to show the conviction was invalid under Pennsylvania law. See Johnson v. State, 740 S.W.2d 868, 872 (Tex. App.--Houston [14th Dist.] 1987, pet. ref d). In Johnson, the accused challenged a prior New York conviction because it revealed he had received an indeterminate sentence. The Court held that because the sentence was proper under New York law, the prior conviction could be used in Texas for enhancement purposes. See id.

Pennsylvania law requires that in sentencing, a court must specify a maximum term of imprisonment and a minimum term, which cannot exceed one-half of the maximum sentence imposed. See 42 Pa. C.S.A. 9756 (a-b) (2006); Commonwealth v. Barzyk, 692 A.2d 211, 215-16 (Pa. Super. Ct. 1997); Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. Super. Ct. 1994); Gundy v. Commonwealth, 478 A.2d 139, 141 (Pa. Commw. Ct. 1984). As Appellant has failed to meet his burden to prove that the Pennsylvania conviction is invalid, we overrule Issue No. Two.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

March 30, 2006

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)