J.B. Degrassa, Jr. v. State ( 2014 )

Opinion issued February 4, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00162-CR
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J.B. DEGRASSA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 11CR0210
MEMORANDUM OPINION
J. B. Degrassa, Jr. was convicted of theft of copper, a state jail felony. 1
During the sentencing phase of his trial, the State introduced evidence of two prior
felony convictions that were used to enhance the range of punishment. 2 The jury
found both enhancement paragraphs to be true and assessed Degrassa’s
punishment at fifteen years’ confinement. In a single appellate issue, Degrassa
contends that the evidence is legally insufficient to support the jury’s finding of
“true” with regard to the first enhancement paragraph. We affirm.
Background
The State provided pre-trial notice of its intent to enhance the range of
punishment in this case using Degrassa’s prior convictions for Attempted Burglary
of a Habitation 3 and Burglary of a Habitation. 4
During the sentencing phase of Degrassa’s trial, the State introduced a
certified copy of the judgment and sentence from the 1991 felony conviction for
Burglary of a Habitation without objection. Through the testimony of a fingerprint
1
See TEX. PENAL CODE ANN. § 31.03(e)(4)(F)(iii) (West 2012) (theft of less than
$20,000 worth of copper is state jail felony).
2
See TEX. PENAL CODE ANN. § 12.425(b) (West 2012) (enhancing punishment for
state jail felony to second degree felony if shown that defendant has two prior,
consecutive felony convictions, other than state jail felonies punishable under
Penal Code section 12.35(a)).
3
March 11, 1987, cause number 86CR0811, 10th Judicial District, Galveston
County, Texas.
4
August 20, 1991, cause number 91CR0551, 212th Judicial District of Galveston
County, Texas.
2
expert, the 1991 judgment was linked to Degrassa by matching the fingerprint on
the judgment with Degrassa’s fingerprint sample taken before the beginning of the
punishment phase. The 1991 judgment included a plea of “true” to the March 11,
1987 judgment for the Attempted Burglary of a Habitation.
The State also introduced certified copies of the indictments in the Burglary
of a Habitation case and the Attempted Burglary of a Habitation case, and a
judgment and sentence for the 1987 conviction for Attempted Burglary of a
Habitation. Defense counsel objected to these three exhibits arguing that they did
not include fingerprints of the person convicted, were improperly authenticated,
were not relevant, and contained hearsay. In both indictments, the defendant is
identified as “J.B. Degrassa, Jr.” and both indictments bear the SPN number
100936.5
Elias Cazaras, an investigator with the Galveston County Sheriff’s
Department, testified that a SPN number is a unique number assigned to an
individual housed in the Galveston County Jail. According to Cazaras, although an
inmate may have more than one SPN number, particularly if that person uses
aliases, no two people will have the same SPN number. Following his review of
the 1987 and 1991 indictments, Cazaras verified that the SPN numbers listed on
the back of each were the same and that the cause numbers and offense dates listed
5
The 1987 and 1991 indictments (State’s Exhibits 12 and 13) are two-sided
documents.
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in two indictments matched the cause numbers and offense dates recited in the two
judgments. All these exhibits, over objection, were admitted.
The jury charge on punishment identified the first enhancement as a March
11, 1987 conviction for the offense of “Burglary of a Habitation” in cause number
86CR0811, in the 10th Judicial District of Galveston County, Texas, and the
second enhancement as an August 20, 1991 conviction for the offense of “Burglary
of a Habitation” in cause number 91CR0551, in the 212th District Court of
Galveston County, Texas. The jury found both enhancements to be true.
Legal Sufficiency
Degrassa argues the evidence is legally insufficient to support the jury’s
finding of “true” with regard to the first enhancement paragraph (i.e., that he had
previously been convicted of Burglary of a Habitation in 1987 as stated in the jury
charge on punishment).
A. Standard of Review
In a challenge to the sufficiency of the evidence, we examine all the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010)
(plurality op.). We are required to defer to the jury’s credibility and weight
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determinations, because the jury is the sole judge of the witnesses’ credibility and
the weight to be given their testimony. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; see also Brooks, 323 S.W.3d at 899 (stating jurors are exclusive judges of
facts, witnesses’ credibility, and weight given to witnesses’ testimony). “[Further,
t]he standard of review on appeal is the same for both direct and circumstantial
evidence.” King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (en banc);
see also Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2010,
pet. ref’d).
We also test the legal sufficiency of the evidence against the allegations
contained in a hypothetically correct jury charge. Gollihar v. State, 46 S.W.3d
243, 252 (Tex. Crim. App. 2001); see also Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997) (en banc). Moreover, these requirements apply
irrespective of whether the defendant attacks the sufficiency of the evidence
underlying the current conviction or the establishment of the allegations in an
enhancement paragraph. See Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App.
2000) (stating that Malik’s principles apply equally to affirmative findings
necessary to sustain imposition of enhanced punishment).
B. Applicable Law
“To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a conviction exists, and (2) the
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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. Although evidence of a certified copy of a final
judgment and sentence may be a preferred and convenient means, the State may
prove both of these elements in a number of different, unorthodox ways, including
(1) the defendant’s admission or stipulation, (2) testimony by a person who was
present when the person was convicted of the specified crime and can identify the
defendant as that person, or (3) documentary proof (such as a judgment) that
contains sufficient information to establish both the existence of a prior conviction
and the defendant’s identity as the person convicted. Id. at 921–22. “Any type of
evidence, documentary or testimonial, might suffice.” Id. at 922. Further, the
State may use circumstantial evidence to prove the defendant is the same person
named in the alleged prior convictions. See Human v. State, 749 S.W.2d 832, 835–
36, 839 (Tex. Crim. App. 1988) (en banc); see also Orsag v. State, 312 S.W.3d
105, 116 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The factfinder looks
at the totality of the evidence to determine whether the State proved the prior
conviction beyond a reasonable doubt. Orsag, 312 S.W.3d at 115 (citing Flowers,
220 S.W.3d at 923).
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C. Analysis
Degrassa contends that the evidence introduced by the State during the
punishment phase was insufficient to prove the veracity of the first enhancement
paragraph (i.e., that he had been convicted of Burglary of a Habitation in 1987)
because the only evidence linking him to the 1987 judgment was a SPN number
written on the indictments in cause numbers 86CR0811 and 91CR0551, and that,
at most, the evidence merely showed that he had been convicted of Criminal
Attempt Burglary of a Habitation in 1987, not Burglary of a Habitation, as alleged
in the enhancement and set forth in the jury charge.
This case is similar to Mitchell v. State, Nos. 05–12–00876–CR, 05–12–
00877–CR, 05–12–00878–CR, 2013 WL 3929212, at *6 (Tex. App.—Dallas Jul.
26, 2013, no pet.) (not designated for publication) with respect to the discrepancy
between the jury charge and evidence. In Mitchell, the jury charge on punishment
asked whether the defendant had been convicted of “delivery” of a controlled
substance, and the jury answered yes. The evidence, however, showed that the
defendant had actually been convicted of “possession” of a controlled substance.
The Dallas Court of Appeals held that the hypothetically correct jury charge would
have asked whether the defendant had been convicted of possession, not delivery,
of a controlled substance, and it affirmed the trial court’s judgment. Id.; see also
Harrison v. State, No. 07–08–0155–CR, 2008 WL 4755663, at *1 (Tex. App.—
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Amarillo Oct. 30, 2008, pet. ref’d) (mem. op., not designated for publication)
(affirming judgment even though evidence proved defendant was convicted of
burglarizing a habitation in Tarrant County and punishment jury charge alleged
that defendant had been convicted of same offense, in same cause number, in
Dallas County); Ricks v. State, No. 06–08–00147–CR, 2009 WL 996043, at *3
(Tex. App.—Texarkana Apr. 15, 2009, pet. ref’d) (mem. op., not designated for
publication) (affirming judgment even though evidence proved prior conviction
under cause number different from that listed in punishment jury charge).
We measure the sufficiency of the evidence against a hypothetically correct
jury charge. See Malik, 953 S.W.2d at 240; see also Young, 14 S.W.3d at 750
(applying Malik to punishment phase). Similar to Mitchell, the hypothetically
correct jury charge in this case would have asked whether Degrassa had been
previously convicted of Criminal Attempt Burglary of a Habitation in 1987, not
Burglary of a Habitation.
Here, the record reflects that the State proved the first enhancement (1987
conviction/86CR0811) through some of the same evidence used to prove the
second enhancement (1991 conviction/91CR0551). The State proved the second
enhancement by introducing a certified copy of the judgment in 91CR0551, which
contains the defendant’s fingerprint, identifies “J.B. Degrassa, Jr.” as the defendant
in the case, and contains the same cause number, court, offense, and date of
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conviction as alleged in the enhancement. The State linked the 1991 judgment to
Degrassa through a fingerprint expert who testified that the fingerprint on the 1991
judgment matched a fingerprint sample taken from Degrassa.
The State also introduced an indictment in cause number 91CR0551, which
also identifies “J.B. Degrassa, Jr.” as the defendant, and contains the same cause
number, court, and offense, as set forth in the 1991 judgment with Degrassa’s
fingerprint. The indictment also contains a SPN number which, according to
Cazaras, is a unique number assigned to a Galveston County Jail inmate. The SPN
number on the 1991 indictment matches the SPN number on the 1987 indictment
for Criminal Attempt Burglary of a Habitation in 1987 (State’s Exhibit 13). The
1987 indictment also identifies “J.B. Degrassa, Jr.” as the defendant, and contains
the same cause number, court, and offense, as set forth in the March 11, 1987
judgment of conviction for Criminal Attempt Burglary of a Habitation. When
considered as a whole, the evidence in this case is legally sufficient to support an
affirmative answer to the hypothetically correct jury charge on Criminal Attempt
Burglary of a Habitation in 1987. See Orsag, 312 S.W.3d at 115 (stating factfinder
looks at totality of evidence to determine whether State proved prior conviction
beyond reasonable doubt).
Degrassa questions the reliability of SPN numbers and argues that because a
person can be assigned multiple SPN numbers, this creates the possibility of error
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in relying on identification through the means of a SPN number only. Degrassa’s
argument, unsupported by any evidence, is not persuasive. First, although Cazaras
testified that an incarcerated person may have more than one SPN number, he also
testified that no two people will have the same SPN number. Second, the SPN
number is not the only identifying information linking Degrassa to the 1987
indictment and the corresponding 1987 judgment. The 1987 indictment and
judgment both identify “J.B. Degrassa, Jr.” as the defendant, and contain the same
cause number and court as alleged in the enhancement. The 1991 judgment, linked
to Degrassa by a fingerprint comparison, also indicates that Degrassa pled “true” to
an enhancement in that case alleging that he had been convicted in “felony Cause
Number 86CR0811, Criminal Attempt Burglary of a Habitation” on March 11,
1987, in the 10th Judicial District Court of Galveston, County, Texas. This is the
same cause number, offense, date of conviction, and court as the 1987 judgment.
Although the State could have proven the first enhancement by other means
as Degrassa argues, including the admission of Degrassa’s penitentiary packet for
the 1987 conviction, that does not mean that the evidence in this case is
insufficient. See Flowers, 220 S.W.3d at 921–22 (stating that no specific
document or mode of proof required to prove prior conviction; process of proving
up enhancement resembles completing puzzle, stating “[t]he pieces standing alone
usually have little meaning. However, when the pieces are fitted together, they
10
usually form the picture of the person who committed that alleged prior conviction
or convictions”); see also Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App.
1984) (en banc) (“[W]here as in the instant case, the proof [of the defendant’s prior
conviction] though unorthodox, was clearly sufficient, no error will be found.”).
We overrule Degrassa’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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