William Smith A/K/A Bill Smith v. State ( 2016 )

NUMBER 13-11-00694-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM SMITH A/K/A
BILL SMITH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION ON REMAND
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
This case is before us on remand. On November 13, 2014, this Court issued an
opinion reversing appellant William Smith’s conviction for driving while intoxicated—third
offense,1 see TEX. PENAL CODE ANN. §§ 49.04, (West, Westlaw through 2015 R.S.), a
1 Appellant was previously convicted of two offenses relating to the operation of a motor vehicle
while intoxicated: (1) On March 10, 2006, in Cause No. 63519, in the County Court at Law of San Patricio
County, Texas; and (2) On March 28, 2008 in Cause No. 2007-9764-3 in the County Court at Law No. 3 of
third-degree felony enhanced to a habitual felony offender. See id. §§ 12.42, 49.09(b)(2)
(West, Westlaw through 2015 R.S.); Smith v. State, ___ S.W.3d ___, ___, 2014 WL
5901759, at *1 (Tex. App.—Corpus Christi Nov. 13, 2014), rev’d ___ S.W.3d ___, 2016
WL 3193479 (Tex. Crim. App. June 8, 2016). On June 8, 2016, the Texas Court of
Criminal Appeals vacated our judgment after concluding that appellant failed to preserve
error concerning the admission of blood-test results. See Smith v. State, ___ S.W.3d
___, ___, 2016 WL 3193479, at **4–5 (Tex. Crim. App. June 8, 2016). The Court
remanded the case “to consider appellant’s remaining points of error.” Id.By his remaining issues, appellant complains: (1) the trial court erred by refusing
to appoint a new attorney on the first day of trial; (2) the trial court erred by overruling
objections to the fingerprint expert’s opinions and admitting the two prior judgments into
evidence; and (3) there was insufficient evidence to show the existence of two prior felony
convictions charged in the indictment. After full consideration on remand, we affirm.
I. FAILURE TO APPOINT NEW TRIAL COUNSEL2
By his first issue, appellant contends the trial court erred “by forcing appellant to
trial with appointed counsel to whom appellant objected.” Appellant’s issue inquires
whether appointed counsel had a duty to timely relay appellant’s request for new counsel
to the court and whether appellant is entitled to rely on appointed counsel in discharging
Nueces County, Texas.
2 As this is a memorandum opinion on remand and the parties are familiar with the factual and
procedural histories of this case, we will not recite them here except as necessary to advise the parties of
the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.1. For a more detailed recitation
of the factual and procedural backgrounds of this case, see Smith v. State, ___ S.W.3d ___, ___, 2014 WL
5901759, at *1 (Tex. App.—Corpus Christi Nov. 13, 2014) rev’d ___ S.W.3d ___, 2016 WL 3193479 (Tex.
Crim. App. June 8, 2016). We have reordered appellant’s issues on appeal for clarity.
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his duties. Appellant, however, does not cite any authority that supports his argument
for reversal based upon defense counsel’s alleged duty to notify the trial court concerning
appellant’s desire for the appointment of other counsel.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a motion for withdrawal and replacement of
appointed counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556,
566 (Tex. Crim. App. 2000) (en banc). As expressed in King:
[T]he right to counsel may not be manipulated so as to obstruct the judicial
process or interfere with the administration of justice. Further, personality
conflicts and disagreements concerning trial strategy are typically not valid
grounds for withdrawal. A trial court has no duty to search for counsel
agreeable to the defendant.
Id. (citations omitted).
Once a trial court appoints an attorney to represent an indigent defendant, the
defendant has been accorded the protections provided under the Sixth and Fourteenth
Amendments to the United States Constitution and Article 26.04 of the Texas Code of
Criminal Procedure; the defendant then carries the burden of proving entitlement to a
change of counsel. See U.S. CONST. amend. VI, XIV; TEX. CODE CRIM. PROC. ANN. art.
26.04 (West, Westlaw through 2015 R.S.); Barnett v. State, 344 S.W.3d 6, 24 (Tex.
App.—Texarkana 2011, pet. ref’d) (citing Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim.
App. 1976)); see also Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Watkins
v. State, 333 S.W.3d 771, 775 (Tex. App.—Waco 2010, pet. ref’d); Maes v. State, 275
S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.) (defendant is responsible for
“making the trial court aware of his dissatisfaction with counsel, stating his grounds for
his dissatisfaction, and offering evidence in support of his complaint”). A defendant may
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not wait until the day of trial to demand different counsel or to request counsel be
dismissed so he may retain other counsel. Webb, 533 S.W.2d at 784; Gilmore v. State,
323 S.W.3d 250, 264 (Tex. App.—Texarkana 2010, pet. ref’d).
B. Analysis
During a break in the State’s first witness’s testimony, appellant informed the trial
court that “everything has happened so fast lately, and I really—I didn’t feel that I was
being represented in the way that I need to be.” Appellant stated he was present in court
under duress because he was not being represented in the manner that he preferred and
that his attorney refused to “relieve himself” despite appellant’s persistent requests. The
record is otherwise silent in this regard. The trial court denied appellant’s motion to
dismiss his attorney and to appoint a new one, noting that the case was “seven months
old” and that appellant had never written the trial court or in any manner communicated
his alleged duress prior to that moment.
We conclude that appellant’s conclusory and untimely claim that his attorney was
not satisfactorily representing him did not show appellant was entitled to a change of
counsel. See Hill, 686 S.W.2d at 187; Watkins, 333 S.W.3d at 775; Maes, 275 S.W.3d
at 71. The trial court did not abuse its discretion by denying his day-of-trial request. See
Webb, 533 S.W.2d at 784; Gilmore, 323 S.W.3d at 264. We overrule appellant’s first
issue.
II. ADMISSIBILITY OF FINGERPRINT EVIDENCE
By his second issue, appellant argues the trial court erred by “overruling objections
to the opinions of the fingerprint expert and admitting prior judgments into evidence.”
Appellant complains that the fingerprint expert gave mere summary testimony regarding
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general matching characteristics. Specifically, appellant complains that the expert’s
testimony failed to adequately demonstrate the following: (1) the particular techniques
the expert used and the techniques’ acceptance in the community to establish reliability;
and (2) the specific matching markings that the expert found to identify fingerprints.
A. Standard of Review
The admission of expert testimony is reviewed on appeal for an abuse of
discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010) (citing Lagrone
v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997)). Texas Rule of Evidence 702
provides: “If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify thereto in the
form of an opinion or otherwise.” TEX. R. EVID. 702. Under Rule 702, it is the trial court's
responsibility to determine whether proffered scientific evidence is sufficiently reliable and
relevant to assist the jury. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App.
2005); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).
The proponent of scientific evidence must persuade the trial court through clear
and convincing evidence that the proposed evidence is reliable by establishing: (1) the
underlying scientific theory is valid; (2) the technique applying the theory is valid; and
(3) the technique was properly applied on the occasion in question. Somers v. State,
368 S.W.3d 528, 536 (Tex. Crim. App. 2012); Kelley v. State, 824 S.W.2d 568, 573 (Tex.
Crim. App. 1992).
B. Pertinent Facts
1. Guilt-Innocence Phase
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Nueces County Sheriff’s Deputy Fred Flores testified that he was a fingerprint
identification expert with extensive training and experience. Deputy Flores explained
that he compared known fingerprints taken from appellant with fingerprints found in
State’s Exhibit 4 containing two prior DWI convictions. Without objection, Deputy Flores
testified, “Based on the comparison of the fingerprints on Exhibit No. 4 to the known
fingerprints that I took . . . of [appellant] this morning, they are one in [sic] the same
individual[.]”
The State moved to admit Exhibit 4, at which time appellant took Deputy Flores on
voir dire to question him concerning his fingerprint comparison. Deputy Flores then
explained that he identified appellant’s fingerprints by comparing “numerous ridge
endings, cores, deltas, bifurcations, converging ridges, mostly deltas.” Appellant
objected to the introduction of State’s Exhibit 4, arguing that Deputy Flores’s opinion
regarding the fingerprint comparison was not “rationally based upon human perception.”
The trial court overruled the objection and admitted State’s Exhibit 4.
2. Sentencing Phase
During the sentencing phase, Deputy Flores testified concerning fingerprints found
in judgments for two prior felony convictions, labeled State’s Exhibits 5 and 6. He
testified that he received “pen packets” from the “Texas Department of Corrections” which
contained a judgment, sentence, photograph and fingerprints of “[appellant] or individual
that was processed and housed at the unit.” Deputy Flores testified that the fingerprints
in the “pen packets” matched known fingerprints taken from appellant. Without objection
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Deputy Flores stated, “After comparing the known fingerprints of [appellant] to the pen
packets in Exhibits 6 and 5, it was determined based on that . . . comparison, that they’re
one in [sic] the same individual, [appellant].”
On cross-examination, Deputy Flores explained that he compared “ridge
characteristics, bifurcation, converging ridges, diverging ridges, cores, deltas, ridge
endings, and dots.” He further testified as follows regarding his comparison of those
characteristics:
All—all those factors were in those fingerprints, the cores, the deltas; and
then, of course, you go back and forth from the known prints to the—to the
exhibits until you make a determination as to whether they’re one and the
same, and you—you find a specific point on the fingerprint and then go from
one exhibit to the other until you find sufficient number of characteristics that
determine that it’s one in [sic] the same.
The State moved to admit Exhibits 5 and 6. Appellant objected, arguing that “the
testimony wasn’t specific enough regarding the comparison points, plus there’s no written
reports.” The trial court overruled appellant’s objection and admitted the exhibits.
C. Preservation
At trial, appellant objected to the admission of State’s Exhibits 4, 5, and 6. On
appeal, appellant’s issue focuses on Deputy Flores’s testimony. Appellant principally
complains “there is no evidence from which the trial court could determine the technique
or methodology applying the theory was valid or [that] the technique was properly applied
in this case.”
A complaint is not preserved for appeal unless it was made to the trial court by a
timely request, objection or motion that stated the grounds for the ruling that the
complaining party sought from the trial court. Resendez v. State, 306 S.W.3d 308, 312
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(Tex. Crim. App. 2009) (citing TEX. R. APP. P. 33.1(a)(1)(A)). A “point of error on appeal
must comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).
Deputy Flores testified, without objection, regarding his comparison of appellant’s
fingerprints with those fingerprints in the various exhibits. Appellant had the opportunity
to cross-examine Deputy Flores, but he never objected to his testimony. Instead,
appellant objected to the admission of State’s Exhibits 4, 5, and 6. Appellant’s objections
at trial do not comport with his argument on appeal. See Heidelberg v. State, 144 S.W.3d
535, 537 (Tex. Crim. App. 2004) (holding that the “legal basis of a complaint raised on
appeal cannot vary from that raised at trial”). Appellant’s issues therefore have not been
preserved for appellate review. See TEX. R. APP. P. 33.1.
D. Analysis
However, even if appellant preserved his challenge to Deputy Flores’s testimony,
we would not find error occurred under the facts of this case. The Texas Court of
Criminal Appeals has held that fingerprint comparison testimony is generally admissible
“because it is reliable and it assists the trier of fact in its task of determining whether a
latent fingerprint is that of a particular person.” Russeau, 171 S.W.3d at 883. Appellant
complains generally about Deputy Flores’s fingerprint comparison testimony, but he fails
to explain how Deputy Flores’s technique was not valid or how Deputy Flores’s application
of the technique was incorrect. See Somers, 368 S.W.3d at 536. We note that Deputy
Flores described multiple distinct fingerprint patterns used in his analysis and testified
that the fingerprints in question matched the known fingerprints taken from appellant.
Based on this testimony, the trial court did not abuse its discretion in overruling appellant’s
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subsequent objection to the admission of State’s Exhibits 4, 5, and 6.3 See Russeau,
171 S.W.3d at 883; see also Dominguez v. State, No. 08-13-00143-CR, 2015 WL
1137742, at *4 (Tex. App.—El Paso Mar. 11, 2015, no pet.) (mem. op., not designated
for publication) (trial court did not abuse its discretion allowing expert fingerprint testimony
where witness “described three distinct fingerprint patterns used in the analysis (loops,
whorls, and arches) and testified that he found a match in the whorls found on [the
defendant’s] right thumb prints”). We overrule appellant’s second issue.
III. SUFFICIENCY OF EVIDENCE TO PROVE PRIOR FELONIES
By his third issue, appellant argues the evidence is insufficient to show that he
committed the two prior felonies alleged in the indictment.
A. Standard of Review and Applicable Law
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);
see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The
fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be
given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,
3 We also note that the challenged exhibits contain certified copies of a judgment and sentence,
which are admissible pursuant to Texas Rule of Evidence 901 as a certified copy of a public record. See
TEX. R. EVID. 901(b)(7); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986). However, such
documents, standing alone, are not sufficient to prove a prior conviction. Beck, 719 S.W.2d at 210.
Whether the State has linked a defendant to a prior conviction is reviewed under a sufficiency of the
evidence standard, which we discuss later in this opinion in addressing appellant’s third issue.
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707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-
finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).
We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State,
767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).
To establish that a defendant has been convicted of a prior offense, the State must
prove beyond a reasonable doubt (1) a prior conviction exists, and (2) the defendant is
linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
No specific document or mode of proof is required to prove these two elements. Id. A
certified copy of a final judgment and sentence is one method of proving them. See id.The factfinder “fits the pieces of the jigsaw puzzle together and weighs the credibility of
each piece,” looking to the totality of the evidence to determine whether both elements
are proven beyond a reasonable doubt. Id. at 923.
B. Analysis
The State alleged in the indictment that appellant had two prior convictions: (1)
“Burglary of a Habitation, on June 7, 1989, in Cause No. 88-CR-1586-A,” from the 28th
District Court of Nueces County; and (2) “Burglary of a Habitation, on February 19, 1992,
in Cause No. 2870-1” from the 156th District Court of Live Oak County, Texas. During
the sentencing phase, the trial court admitted State’s Exhibit Numbers 3, 5, and 6.
State’s Exhibit 3 was a fingerprint card with appellant’s prints that Deputy Flores took from
appellant. State’s Exhibits 5 and 6 were the earlier judgments’ “pen packs.”
State’s Exhibit 5 contained a certified copy of a felony conviction and sentence for
burglary of a habitation in cause number 2870-1, rendered by the 156th District Court of
Live Oak County, Texas on February 19, 1992. The defendant’s name on the judgment
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is “William Perry Smith,” and the exhibit included pictures of the defendant and his
fingerprints. State’s Exhibit 6 contained certified copies of two judgments, including a
felony conviction and a sentence for burglary of a habitation in cause number 88-CR-
1586-A, rendered by the 28th District Court of Nueces County, Texas on June 7, 1989.
The defendant in the judgment is “William Smith,” and the exhibit included the defendant’s
picture and his fingerprints. Deputy Flores testified that “[a]fter comparing the known
fingerprints of the Defendant William Bill Smith [appellant] to the pen packets in Exhibits
6 and 5, it was determined based on . . . that comparison, that they’re one in the same
individual, William Bill Smith.”
Texas law has long recognized that matching an accused’s fingerprints to a set of
fingerprints in a “pen packet” is sufficient to prove the accused is the person convicted in
the prior conviction. See Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984) (en
banc); Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972); Allen v. State, 451
S.W.2d 484, 484 (Tex. Crim. App. 1970); Williams v. State, 356 S.W.3d 508, 517 (Tex.
App.—Texarkana 2011, pet. ref’d); Cleveland v. State, 814 S.W.2d 140, 142 (Tex. App.—
Houston [14th Dist.] 1991, no pet.); Lancaster v. State, 734 S.W.2d 161, 165 (Tex. App.—
Fort Worth 1987, pet. ref’d). Additionally, allowing the factfinder to compare photographs
included in pen packets with the defendant can alone be sufficient to prove that the
defendant is the same person as the one in the photograph. Forward v. State, 406
S.W.3d 601, 606 (Tex. App.—Eastland 2013, no pet.) (citing Littles, 726 S.W.2d at 31–
32).
After viewing the evidence in the light most favorable to the prosecution, we hold
that a rational factfinder could have found that two prior convictions existed and that
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appellant was the person convicted. See Johnson, 364 S.W.3d at 293–94. We overrule
appellant’s third issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of December, 2016.
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