Ryan J. Prihoda v. State ( 2011 )

OPINION
No. 04-10-00552-CR
Ryan PRIHODA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 217408
Honorable Claude D. Davis, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 31, 2011
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Ryan Prihoda was convicted of a second offense of driving while intoxicated. On appeal,
Prihoda contends: (1) he was deprived of his right to a fair trial, due course of law, and proper
confrontation of the State’s witness; (2) the evidence is legally insufficient; (3) the State failed to
prove his prior conviction; and (4) the trial court abused its discretion in denying his motion to
dismiss based on his right to a speedy trial. We affirm the judgment of conviction; however we
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reverse the trial court’s judgment as to punishment and remand the cause for a new punishment
hearing.
WITNESS TESTIMONY
The arresting officer, Officer Mark Anthony Salazar, was the only witness who testified
at trial. Prihoda’s first and second points of error relate to Officer Salazar’s testimony.
The State contends that Prihoda’s first point of error is multifarious. We agree.
Prihoda’s complaint is multifarious because it is based on more than one legal theory and raises
more than one specific complaint. See Davis v. State, 329 S.W.3d 798, 820 (Tex. Crim. App.
2010), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 12, 2011) (No. 10-10063); Mays v.
State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 1606 (2011). In the
actual point of error, Prihoda contends that Officer Salazar’s inability to recall the events leading
to Prihoda’s arrest: (1) deprived him of his right to a fair trial and due course of law; and (2)
deprived him of proper confrontation of the State’s witness as constitutionally guaranteed. In his
briefing of this point of error, Prihoda asserts that Officer Salazar’s inability to recall the events:
(1) resulted in the evidence being legally insufficient to support his conviction and required the
trial court to grant a directed verdict; (2) resulted in the evidence being legally insufficient to
justify Prihoda’s stop and arrest; (3) deprived him of his right of confrontation under the United
States and Texas Constitutions; and (4) made cross-examination a “meaningless exercise.” “By
combining more than one contention in a single point of error, an appellant risks denial on the
ground that the issue is multifarious and presents nothing for review.” Sparkman v. State, 55
S.W.3d 625, 630-31 (Tex. App.—San Antonio 2000, no pet.); see also Mays, 318 S.W.3d at 385
(noting multifarious issue “risks rejection on that basis alone”). As an appellate court, we may
refuse to review a multifarious issue or we may elect to consider the issue if we are able to
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determine, with reasonable certainty, the alleged error about which the complaint is made. Stults
v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Shull v. United
Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). The basis for all of
the complaints made by Prihoda in his first point of error is his contention that Officer Salazar
had no recollection of the events leading to Prihoda’s arrest. In the interest of justice, we elect to
consider this contention.
Officer Salazar is a fourteen-year veteran with the San Antonio Police Department.
Officer Salazar observed Prihoda driving a vehicle traveling 60 miles per hour in an area where
the speed limit was 45 miles per hour. Officer Salazar further observed the vehicle being driven
in an erratic and dangerous manner as it was weaving through traffic without signaling any lane
changes. Officer Salazar activated his overhead lights and pulled over the vehicle. When
Officer Salazar approached the driver’s window, he could smell the odor of alcoholic beverages
coming from the vehicle. Officer Salazar testified that Prihoda’s eyes appeared to be bloodshot
and glassy, and Prihoda’s speech was slurred and confused. When Prihoda exited the vehicle, he
was somewhat unsteady on his feet. Officer Salazar administered three field sobriety tests and
determined that Prihoda was intoxicated. Officer Salazar stated that Prihoda was compliant
while being arrested. Officer Salazar testified that the wife of one of the two passengers in
Prihoda’s vehicle arrived to pick up the passengers, and the passengers were released. Officer
Salazar identified the DIC-24 form containing Prihoda’s information and testified that Prihoda
refused to give a breath sample and refused to sign the form. Officer Salazar testified that his
vehicle was not equipped with a video, and Salazar refused to be videotaped at the station.
During cross-examination, Officer Salazar testified that when he ran Prihoda’s name and
date of birth through his computer, he discovered that Prihoda had three municipal warrants
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outstanding for tickets. When asked if he had a “finite recollection of exactly what time” he ran
Prihoda’s information through the computer, Officer Salazar stated he did not remember “exactly
when it was.” Officer Salazar testified that he also discovered that Salazar had a prior DWI.
Officer Salazar testified that one of the passengers in Prihoda’s vehicle was sober while the other
passenger was highly intoxicated. Officer Salazar stated that the passenger was “falling down
drunk,” and Officer Salazar thought the passenger probably could not even turn on a car. On a
scale of one to ten in terms of intoxicated state, Officer Salazar testified that the passenger was a
nine or an eight, while Prihoda was probably around a six or a seven. When Officer Salazar was
asked whether he had a “finite recollection” of his observations of Prihoda, he answered, “No,
sir.”
Defense counsel then objected that Officer Salazar’s testimony was not competent
evidence for the trial court to consider, asserting, “It appears he is just reciting hearsay off of the
police report and doesn’t have a finite recollection of any of these issues.” The trial court
granted defense counsel permission to take Officer Salazar on voir dire. Officer Salazar
admitted that the arrest was three years prior to trial and that he had probably arrested 200
individuals for driving while intoxicated since his arrest of Prihoda. Officer Salazar further
stated “without my report, I wouldn’t be able to remember very much.” Defense counsel then
moved for a directed verdict asserting, “The officer needs to have a finite recollection of this
arrest. He can refer to his police report that will refresh his memory, but the officer himself has
just told us it is not refreshing his memory. He has no memory to refresh.” The prosecutor
countered that Officer Salazar was not required to have a “finite memory” and was
“remembering quite a bit of things that [were] not on the report such as [the] passengers and their
condition.” In response to the trial court’s question regarding whether he could remember a little
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or a lot, Officer Salazar stated he did not remember the specifics of the arrest but he “vaguely
remember[ed] the incident because of the fact that there were those passengers that were in
there.” Officer Salazar stated that he remembered the passenger being drunk and the
conversation about the wife of one of the passengers picking them up. Officer Salazar asserted,
“So I remember this incident but not perfectly like [defense counsel] is saying, but I do recall the
incident. I do remember more or less the incident. There was those little things that jarred my
memory.” In response to further questioning by defense counsel, Officer Salazar admitted that
he would not have recognized Prihoda if he had not been sitting in the courtroom. In response to
defense counsel’s question regarding whether he had a “finite recollection” of Prihoda
performing any field sobriety tests, Officer Salazar sated, “I know it happened, but without the
report — In all honesty I couldn’t remember without my report.” In response to defense
counsel’s question about whether Officer Salazar remembered Prihoda and having an interaction
with him in 2007, Officer Salazar responded, “I mean, I remember him after reading the report
and going over the incident that was documented. After that happened, yes, I do remember.”
Officer Salazar further stated, “With the report, I do remember [Prihoda].” Officer Salazar did
admit, however, that he could not identify Prihoda in court as the person he arrested that night.
On re-direct examination, Officer Salazar testified that a mug shot was taken of Prihoda
on the night of his arrest, and a copy of the mug shot was introduced into evidence. Officer
Salazar identified Prihoda as being the person in the mug shot.
On re-cross examination, defense counsel asked Officer Salazar if he had a personal
recollection of arresting Prihoda on June 2, 2007. Officer Salazar responded, “In my mind, I am
confused because with my report I do remember. Without my report, I don’t remember.”
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Officer Salazar further explained, “But with the report, I am able to bring it back from memory
recall.”
Initially, we note “memory loss does not render a witness ‘absent’ for Confrontation
Clause purposes if [the witness] is present in court and testifying.” Woodall v. State, 366 S.W.3d
634, 644 (Tex. Crim. App. 2011). Moreover, as Prihoda acknowledges in his brief, an uncertain
in-court identification will not make a verdict improper for lack of evidence if other evidence
corroborates it. Anderson v. State, 813 S.W.2d 177, 179 (Tex. App.—Dallas 1991, no pet.). In
such a case, “[t]he witness’s uncertainty goes to the weight of the testimony and is for the jury”
to consider, or the trial judge in a bench trial. Id.
Having reviewed Officer Salazar’s testimony, we reject all of Prihoda’s complaints based
on his contention that Officer Salazar was unable to recall the events leading to his arrest.
Officer Salazar was able to independently recall details that were not present in his report. Other
than not being able to specifically identify Prihoda as the person mentioned in the report, which
Prihoda’s mug shot corroborated, Officer Salazar unequivocally stated, “With the report, I do
remember.” Accordingly, Prihoda’s first issue is overruled, and for the reasons previously
stated, Prihoda’s second issue challenging the legal sufficiency of the evidence to support his
conviction is also overruled.
SPEEDY TRIAL
In his fourth issue, Prihoda contends the trial court erred in denying his motion to dismiss
for lack of a speedy trial. Courts must balance four factors when analyzing a speedy trial claim.
Barker v. Wingo, 407 U.S. 514, 530 (1972); Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim.
App. 2008). These factors are: (1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530;
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Cantu, 253 S.W.3d at 280. No single factor is necessary or sufficient to establish a violation of
the right to a speedy trial; rather, they are related factors and must be considered together.
Barker, 407 U.S. at 533. In conducting this balancing test, “the conduct of both the prosecution
and the defendant are [to be] weighed.” Id. at 530.
In an appeal of a trial court’s ruling on a speedy trial claim, we apply an abuse of
discretion standard in reviewing the trial court’s resolution of factual issues; however, we apply a
de novo standard in reviewing legal conclusions. Cantu, 253 S.W.3d at 282. A review of the
four factors necessarily involves factual determinations and legal conclusions, but the balancing
of the four factors as a whole is a purely legal question. Id.
Under the abuse of discretion standard applicable to factual issues, we defer not only to a
trial court’s resolution of disputed facts, but also to the trial court’s right to draw reasonable
inferences from those facts. Id. “In assessing the evidence at a speedy-trial hearing, the trial
judge may completely disregard a witness’s testimony, based on credibility and demeanor
evaluations, even if that testimony is uncontroverted.” Id. “The trial court may disbelieve any
evidence so long as there is a reasonable and articulable basis for doing so[,] [a]nd all of the
evidence must be viewed in the light most favorable to the [trial court’s] ultimate ruling.” Id.
Because Prihoda lost in the trial court on his speedy-trial claim, “we presume that the trial judge
resolved any disputed fact issues in the State’s favor, and we defer to the implied findings of fact
that the record supports.” Id.
“While the State has the burden of justifying the length of delay, the defendant has the
burden of proving the assertion of the right and showing prejudice.” Id. at 280. “The
defendant’s burden of proof on the latter two factors ‘varies inversely’ with the State’s degree of
culpability for the delay.” Id. “Thus, the greater the State’s bad faith or official negligence and
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the longer its actions delay a trial, the less a defendant must show actual prejudice or prove
diligence in asserting his right to a speedy trial.” Id. at 280-81.
A. Length of Delay
The length of delay is the “triggering mechanism” for an analysis of the remaining factors
and is measured from the date the defendant is arrested or formally accused. Id. at 281. The
balancing test is triggered by a delay that is unreasonable enough to be “presumptively
prejudicial.” Id. “There is no set time element that triggers the analysis, but . . . a delay of four
months is not sufficient while a seventeen-month delay is.” Id. Prihoda was arrested on June 2,
2007, and his trial commenced on July 22, 2010. This almost three-year delay is sufficient to
trigger a speedy trial analysis. See id.
B. Reason for the Delay
Once it is determined that a presumptively prejudicial delay has occurred, the State bears
the burden of justifying the delay. Id. at 280. Intentional prosecutorial delay is weighed heavily
against the State, while more “neutral” reasons, such as negligence or overcrowded dockets, are
weighed less heavily against it. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002)
(quoting Barker, 407 U.S. at 531). “In the absence of an assigned reason for the delay, a court
may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a
valid reason for the delay.” Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).
As previously noted, Prihoda was arrested on June 2, 2007. Based on the representations
made at the speedy-trial hearing, defense counsel asked for a reset on July 23, 2007, to file
motions. On April 4, 2008, defense counsel announced “not ready,” and no motions had been
filed. On October 20, 2008, defense counsel asked for a continuance because he fell off a ladder.
On December 15, 2008, a warrant was issued for Prihoda’s arrest because of an interlock
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violation. On February 19, 2009, the case was set on the docket for June 5, 2009, and a hearing
was held on Prihoda’s motion to suppress. After the motion was denied, the case was set for trial
in January of 2010; however, the trial court had to reset it to July of 2010. Therefore, although
part of the delay is attributable to Prihoda, most of the delay appears to be attributable to the trial
court. As a result, although this factor weighs against the State, it is not weighed heavily against
it.
C. Assertion of the Right
Although it is the State’s duty to bring the defendant to trial, a defendant does have the
responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d at 282. “Whether and how
a defendant asserts this right is closely related to the other three factors because the strength of
his efforts will be shaped by them.” Id. at 282-83. “The more serious the deprivation, the more
likely a defendant is to complain.” Id. at 283. “Therefore, the defendant’s assertion of his
speedy-trial right (or his failure to assert it) is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.” Id. “Filing for a dismissal
instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to
have no trial instead of a speedy one.” Id. “If a defendant fails to first seek a speedy trial before
seeking dismissal of the charges, he should provide cogent reasons for this failure.” Id.
“Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to
make such requests supports an inference that the defendant does not really want a trial, he wants
only a dismissal.” Id.
Prihoda never filed a motion seeking a speedy trial. Instead, three years after his arrest,
he filed a motion to dismiss on the day trial was to commence. This factor weighs heavily
against Prihoda.
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D. Prejudice
The fourth factor in the balancing test examines “whether and to what extent the delay
has prejudiced the defendant.” Id. at 285. “When a court analyzes the prejudice to the
defendant, it must do so in light of the defendant’s interests that the speedy-trial right was
designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize the
accused’s anxiety and concern, and (3) to limit the possibility that the accused’s defense will be
impaired.” Id. The last type of prejudice is the most serious because a defendant’s inability to
adequately prepare his case “skews the fairness” of the system. Id. “To establish particularized
prejudice based on an unavailable witness, a defendant must present proof both of the efforts
made to locate the witness and that the witness would have benefitted his defense.” Dokter v.
State, 281 S.W.3d 152, 160 (Tex. App.—Texarkana 2009, no pet.).
In this case, the only comment made by defense counsel was that “defense has lost two
key witnesses and have [sic] been substantially prejudiced.” No evidence was presented to
establish Prihoda’s efforts to locate the witnesses or that the witnesses would have benefitted his
defense. Based on the highly intoxicated state of one of the witnesses at the time of Prihoda’s
arrest, the trial court could have inferred that the witness would likely have been of no assistance
to Prihoda’s defense. Because Prihoda failed to show any prejudice, this factor weighs against
him.
E. Balancing the Four Factors
Although the three-year delay in this case triggered a speedy trial analysis, the delay was
either attributable to Prihoda or to the trial court. Moreover, Prihoda did not assert his right to a
speedy trial until the day trial commenced and then sought a dismissal. Finally, the record
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contains no evidence that Prihoda was prejudiced by the delay. Having reviewed the four
factors, we conclude the trial court did not err in denying Prihoda’s motion to dismiss.
PROOF OF PRIOR CONVICTION
In the third point of error in his brief, Prihoda contends the State’s proof of his prior
conviction serves the purpose of enhancing the offense, rather than enhancing the punishment.
Prihoda also contends the evidence is insufficient to prove the prior conviction.
A. Element of Offense or Enhancement
During oral argument, Prihoda’s attorney conceded that Prihoda’s prior conviction served
to enhance his punishment and was not an element of the offense. This court has held “when a
defendant is charged with a Class A misdemeanor driving while intoxicated, the prior driving
while intoxicated conviction is treated as an enhancement provision of the information, and not
an element of a separate offense.” Blank v. State, 172 S.W.3d 673, 676 (Tex. App.—San
Antonio 2005, no pet). Because the prior conviction is an enhancement provision, Prihoda’s
contention in his brief is overruled.
B. Proof of Prior Conviction
The State contends that Prihoda waived his complaint relating to the State’s proof of the
prior conviction because the parties informed the court that they had reached an agreement on
punishment before the trial court ruled on whether the State proved the enhancement provision
beyond a reasonable doubt. The record does not support the State’s waiver argument. At the
time the parties informed the court of a partial agreement on punishment (they did not agree on
the amount of the fine to be assessed), the trial court had already ruled on the admissibility of the
judgment of the prior conviction and its connection to Prihoda. After defense counsel objected
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that the State had not proven Prihoda was the person convicted by the judgment being introduced
into evidence, the following exchange occurred:
THE COURT: Any answer to that?
[PROSECUTOR]: Judge, just that I have already stated, the fingerprint is too
smudged. Yesterday was the guilt/innocence phase, then sentencing was just this
morning. We cannot get a pen packet from Travis County. Had it been Bexar
County, we would have been able to get it. But we could not get the pen packet.
But that judgment does have value in that it does have the defendant’s full name,
identifiers. It does have his signature, Your Honor. And so we argue that that
self-authenticated copy from Travis County is enough to prove up the DWI
second.
THE COURT: Okay. I notice the signature, so I [will] allow it in over the
objection about the print. That would be State’s 4, right?
Defense counsel’s objection informed the trial court that defense counsel was contending that the
State had failed to offer any evidence linking Prihoda to the prior conviction. Accordingly, the
trial court’s ruling was not limited to the admissibility of the exhibit but was an implicit finding
that the State had proven the prior conviction beyond a reasonable doubt. Therefore, we hold
that Prihoda preserved this issue for our review. 1
With regard to Prihoda’s assertion that the State failed to prove the prior conviction, the
State is required to prove beyond a reasonable doubt that: (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). However, “[n]o specific document or mode of proof is required to prove these two
elements.” Id. “While evidence of a certified copy of a final judgment and sentence may be a
preferred and convenient means” to prove the fact of the prior conviction, “the State may prove
1
The State cites Schultz v. State, 255 S.W.3d 153 (Tex. App.—San Antonio 2008, no pet.), to support its contention
that Prihoda is precluded from challenging the sufficiency of the evidence to support his prior conviction because he
agreed to the punishment. In Schultz, however, this court noted that Schultz entered into an agreement with the
State following the jury’s guilty verdict “thereby foregoing the punishment phase of trial.” Id. at 154. In this case,
Prihoda did not forego the punishment phase, but instead raised his objection before the trial court was informed of
any agreement.
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both of these elements in a number of ways, including . . . 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.
In general, “the proof that is adduced to establish that the defendant on trial is one and the
same person that is named in an alleged prior criminal conviction or convictions closely
resembles a jigsaw puzzle.” Id. at 923 (quoting Human v. State, 749 S.W.2d 832, 836 (Tex.
Crim. App. 1988)). “The pieces standing alone usually have little meaning.” Id. “However,
when the pieces are fitted together, they usually form the picture of the person who committed
that alleged prior conviction or convictions.” Id. The trier of fact is required to fit the pieces of
the jigsaw puzzle together and weigh the credibility of each piece. Id. “Regardless of the type of
evidentiary puzzle pieces the State offers to establish the existence of a prior conviction and its
link to a specific defendant, the trier of fact determines if these pieces fit together sufficiently to
complete the puzzle.” Id. If the existence of the conviction and its link to the defendant can be
found beyond a reasonable doubt, “then the various pieces used to complete the puzzle are
necessarily legally sufficient to prove a prior conviction.” Id. Since this is a legal sufficiency
review, we consider all the evidence in the light most favorable to the trier of fact’s finding.
Isassi v. State, 330 S.W.3d 633, 639 (Tex. Crim. App. 2010); Littles v. State, 726 S.W.2d 26, 30
(Tex. Crim. App. 1984).
The only evidence in the record linking Prihoda to the prior conviction is: (1) his full
name on the judgment evidencing his prior conviction; (2) his signature on that judgment; and
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(3) the following reference to the prior conviction during the arresting officer’s testimony at the
guilt-innocence phase of the trial: 2
Q. Okay. And at that point were you also made aware that he had a prior
DWI?
A. After — I believe after I checked his driver’s license history there was a
— I don’t remember exactly when, but it [was] somewhere during that course.
Based on existing precedent, we note that a certified copy of the judgment standing alone is
insufficient to prove a prior conviction, and this is true even if the name on the judgment is the
same as the defendant in trial. Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986);
Menefee v. State, 928 S.W.2d 274, 278 (Tex. App.—Tyler 1996, no pet.). The Texas Court of
Criminal Appeals also has held “where handwriting samples are introduced without expert
testimony and the jury alone must make the comparison, and there is no other evidence to
connect the [defendant] with the prior convictions,” the identity of the defendant as the person
previously convicted “has not been sufficiently established.” Cain v. State, 468 S.W.2d 856, 859
(Tex. Crim. App. 1971). Although the State argues that the Texas Court of Criminal Appeals
overruled Cain, the court actually held, “To the extent that Daniels, Cain, Gollin, or any other
case can be read as holding that there are exclusive manners of proof of a defendant’s identity as
to prior felonies used for enhancement, they are overruled.” Littles, 726 S.W.2d at 32 (emphasis
in original). Thus, the actual holding in Cain, that the evidence introduced in that case was
insufficient to prove the prior conviction, was not overruled.
The State cites numerous cases to support its assertion that the evidence in this case is
sufficient to link Prihoda to the prior conviction beyond a reasonable doubt. Because the facts of
2
We note that the underlying trial was a bench trial. A bench trial is a unitary trial, and the decision of the court is
not fixed until it renders judgment on guilt and punishment after all the evidence and arguments are heard. Barfield
v. State, 63 S.W.3d 446, 451 (Tex. Crim. App. 2001).
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each case are unique with regard to the evidence relied upon by the court in determining the
sufficiency of the link, we briefly summarize the evidentiary links in the cited cases.
In the following cases, the evidence was found to be sufficient to link the defendant to the
prior conviction:
Human v. State, 749 S.W.2d 832, 837-40 (Tex. Crim. App. 1988)
• Expert testimony linked fingerprints to two prior convictions
• Additional evidence included photographs with regard to one prior conviction
and personal information, including height, weight, and social security
number
Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984).
• Photographs of defendant in records of both prior convictions
• Fingerprint testimony linked defendant to one of the prior convictions
Benton v. State, 336 S.W.3d 355, 359-60 (Tex. App.—Texarkana 2011, pet. ref’d)
• Full name “Courtney Antoine Benton” – court noted “quite unlikely that
another by the name of Courtney Antoine Benton was convicted in Harris
County, Texas, within the time frames listed in those prior convictions”
• Date of birth
• Mother’s name “Joycelyn Alexander” listed in prior felony conviction as
Benton’s mother and Benton identified Joycelyn Alexander as his mother in
his video confession played for the jury
• Comparison of signatures
Orsag v. State, 312 S.W.3d 105, 116-18 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d)
• Fiancé’s testimony that she had known the defendant for thirteen or fourteen years
and was familiar with his handwriting
• Fiancé’s testimony that she was with the defendant when he was stopped for one of
the prior driving while intoxicated offenses
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• Fiancé’s testimony that she knew about one of defendant’s other driving while
intoxicated offenses
• Fiancé’s testimony that signature on judgment for all three prior driving while
intoxicated convictions was defendant’s signature
• Comparison of signatures
Jones v. State, No. 2-08-00298-CR, 2009 WL 1905372, at * 2-3 (Tex. App.—Fort
Worth July 2, 2009, pet. dism’d) (not designated for publication)
• Conviction records in two prior convictions (exhibit 6 and 7) to which
defendant did not object refer to third prior conviction (exhibit 5) as a prior
conviction
• Defendant admitted he was convicted of the offense in exhibit 7
• Driver’s license and date of birth in all three exhibits matched
• Pen packet for fourth prior conviction contained photograph, date of birth,
height, weight, eye and hair color, skin tone, referred to conviction in exhibit
6, and contained defendant’s distinctive signature
Meek v. State, No. 03-05-00269-CR, 2006 WL 2080644, at *3 (Tex. App.—
Austin July 28, 2006, no pet.) (not designated for publication)
• Photographs, same full name, same SID #, comparison of signatures
Langford v. State, No. 05-98-01901-CR, 1999 WL 1253068, at *2-4 (Tex. App.—
Dallas Dec. 27, 1999, no pet.) (not designated for publication)
• Expert fingerprint testimony
• Evidence of third conviction referred to the other two prior convictions by
date and cause number
• Same name
• Distinctive signature
Coleman v. State, No. 05-97-01096-CR, 1998 WL 787306, at *3 (Tex. App.—
Dallas Nov. 13, 1998, no pet.) (not designated for publication)
• Expert fingerprint testimony linked defendant to two prior convictions
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• Name and address contained in third prior conviction matched name and
address in indictment in one of the other prior convictions
• Motion to quash enhancement listed same address and stated that defendant
received probation for third prior conviction
• Comparison of signatures
Pachecano v. State, 881 S.W.2d 537, 544-45 (Tex. App.—Fort Worth 1994, no pet.)
• Expert fingerprint testimony, photograph, and comparison of signatures
In the following cases, the evidence was found to be insufficient to link the defendant to
the prior conviction:
Smith v. State, 489 S.W.2d 920, 921-22 (Tex. Crim. App. 1973)
• Comparison of signatures
• Unsworn statements made during closing argument by defense counsel
referring to prior convictions after documentary evidence of prior convictions
had been introduced into evidence
Rosales v. State, 867 S.W.2d 70, 73 (Tex. App.—El Paso 1993, no pet.)
• Comparison of signatures
Although we acknowledge that a factfinder’s comparison of signatures generally can be
one piece of the evidentiary puzzle to link a defendant to a prior conviction even absent expert
testimony, we are troubled by using a signature comparison as evidentiary support in this case
because the record does not reflect that the trial judge made an actual comparison of the
signatures. In many of the cases cited above, the opinions reflect that the State introduced
documents from the case in question into evidence to enable the factfinder to make such a
comparison. See, e.g., Benton, 336 S.W.3d at 359-60; Orsag, 312 S.W.3d at 117-18; Coleman,
1998 WL 787306, at *2-3. In the instant case, no such documents were admitted into evidence,
and none of the documents signed by Prihoda in the instant case contains the signature of the
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04-10-00552-CR
trial judge who presided over the punishment hearing. Although we must view the evidence in
the light most favorable to the trial court and acknowledge that the trial court “could” have
compared the signature on the judgment to the signatures on the documents in the file, relying on
such a comparison in this case given the record as a whole raises serious concerns. Even if we
accept that the trial judge made a comparison of Prihoda’s signatures, we hold that the evidence
presented in this case failed to sufficiently link Prihoda to the prior conviction. We note that no
evidence was introduced to show that Prihoda’s name was sufficiently unique to enable the trial
court to rely on his name as a evidentiary link, and Officer Salazar’s vague response to a single
question about a prior DWI would not enable the trial court to fit these pieces of evidence
together to link Prihoda, beyond a reasonable doubt, to the prior conviction.
CONCLUSION
Because we hold the State failed to sufficiently prove Prihoda’s prior conviction, we
affirm the judgment of conviction, but we reverse the trial court’s judgment as to punishment and
remand the cause for a new punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 44.29
(West Supp. 2010).
Catherine Stone, Chief Justice
PUBLISH
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