SHANE MANTHE v. THE STATE OF TEXAS--Appeal from 411th District Court of Polk County

NUMBER 13-01-00258-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

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SHANE MANTHE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 411th District Court of Polk County, Texas.

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O P I N I O N

Before Justices Dorsey, Ya ez, and Baird[1]

Opinion by Justice Baird

Appellant was charged by indictment with the felony offense of driving while intoxicated. A jury convicted appellant of the charged offense, and the trial court assessed punishment at six years confinement in the Texas Department of Criminal Justice--Institutional Division. Appellant raises one point of error. We affirm.

Appellant contends the evidence is insufficient to prove he is the same individual previously convicted of the misdemeanor offense of driving while intoxicated on November 4, 1998, in cause no. 98-4227, as alleged in the indictment. The State called Detective Ken Bohnert, a fingerprint analyst, who compared appellant=s known fingerprints with a fingerprint on State=s exhibit 4, the judgment in cause no. 98-4227. Although Bohnert formed an opinion as to whether the fingerprints were from the same individual, he did not state that opinion. Nevertheless, the State offered the exhibit and it was admitted without objection.

In his brief, appellant argues the failure of Bohnert to testify that appellant was the same individual convicted in cause no. 98-4227 renders the evidence insufficient. However, at oral argument, counsel for appellant conceded this issue is controlled by several cases which hold there is a distinction between a determination that a prior conviction has been sufficiently linked to a defendant to permit its admission, and a determination that the evidence is sufficient to prove a prior conviction. Rosales v. State, 867 S.W.2d 70, 72 (Tex. App.BEl Paso 1993, no writ). The first inquiry is one of conditional relevancy, while the second inquiry is one of sufficiency. Id.; see also Smith v. State, 998 S.W.2d 683, 687 (Tex. App.BCorpus Christi 1999, pet. ref'd) (AEstablishing the identity of the defendant is a procedural matter entailing a question of conditional relevance.@). Under the doctrine of conditional relevance, a trial judge may admit evidence lacking authentication on the condition that the offering party authenticate the evidence, or connect it up, at a later time. Tex. R. Evid. 104(b); Fuller v. State, 829 S.W.2d 191, 198 99 (Tex. Crim. App. 1992). If sufficient authentication or connection does not appear by the close of the proponent's evidence, the opposing party must renew the original objection by a motion to strike the conditionally admitted evidence. Heidelberg v. State, 36 S.W.3d 668, 673 (Tex. App.BHouston [14th Dist.] 2001, no pet.). Failure to do so constitutes waiver by the opposing party for purposes of appeal. Id.

In reviewing the sufficiency of the evidence, the appellate court must look at all the evidence. This is true even when the evidence is improperly or erroneously admitted. Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996); Alexander v. State, 866 S.W.2d 1, 3 (Tex. Crim. App. 1993). Therefore, we must consider State=s exhibit four in our sufficiency determination even though at the time of its admission it was not relevant because it had not been linked to appellant. Rosales, 867 S.W.2d 72-3 (A[T]he 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.@) When State=s exhibit four is considered in our sufficiency analysis, we hold the evidence is sufficient to sustain the jury=s verdict. Jackson v. Virginia, 443 U.S. 307, 318 19 (1979). Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 20th day of June, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).