Joey Harper v. State of Texas ( 2023 )


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  • Opinion issued December 21, 2023
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-22-00249-CR
    NO. 01-22-00250-CR
    ———————————
    JOEY HARPER, Appellant
    V.
    STATE OF TEXAS, Appellee
    On Appeal from the 248th District Court
    Harris County, Texas
    Trial Court Case Nos. 1635582 & 1635583
    MEMORANDUM OPINION
    Appellant Joey Harper appeals his convictions for aggravated assault with a
    deadly weapon and felon in possession of a weapon. See TEX. PENAL CODE
    §§ 22.02(a)(2), 46.04(a). A jury found him guilty of both crimes. After Harper
    pleaded not true to a sentencing enhancement, the jury found it true and sentenced
    him to 24.5 and 10 years’ imprisonment, respectively. The trial court ordered the
    sentences to run concurrently. On appeal, Harper contends that the evidence was
    insufficient to support the jury’s finding regarding the sentencing enhancement.
    We affirm.
    Background
    This case concerns a shooting in the parking lot of a 24 Hour Fitness.
    Harper, who uses a wheelchair after the loss of his legs, was a member of the gym.
    On Father’s Day in 2019, Harper went to the gym’s childcare and attempted to take
    a young girl away with him. At the time, he was on the phone with the girl’s
    mother. He told the employee monitoring the childcare area that the girl’s mother
    gave permission for him to retrieve her daughter. The childcare worker would not
    allow him to take the girl. She told him that the gym’s policy is that the person
    who brings a child must also pick the child up, and she enforced the policy. While
    she was speaking with Harper, the child’s father, Nehemias Olmedo, returned to
    get her. Olmedo and his daughter left the childcare area and left the gym.
    Olmedo and his daughter went to their car in the parking lot. After he
    secured his daughter in her carseat, Olmedo turned around and saw Harper
    pointing a gun at him. Olmedo lunged at Harper to get the gun away from him. At
    that point, Olmedo realized that Harper had shot him because he had no feeling in
    2
    his leg. Olmedo fell to the ground, and Harper fell to the ground and out of his
    wheelchair. Harper got back in his wheelchair and fled. He was later arrested a few
    blocks away. Olmedo was transported to the hospital where surgeons discovered
    two bullets in his body.
    During the guilt-innocence phase of trial, the trial court admitted into
    evidence a certified judgment and sentence naming Joey Harper and convicting
    him of stalking. See TEX. PENAL CODE § 42.072. The document included the date
    of the offense and conviction, cause number, height, weight, tattoos, hair color, and
    eye color. It also contained facial and side profile photographs. The photographs
    showed a tattoo on the left cheek. Among other witnesses, the jury heard from the
    childcare worker at the gym. She stated that she regularly saw Harper at the gym
    and was familiar with him. The childcare worker viewed the exhibit and identified
    the person in the photographs as Harper. She also identified Harper in the
    courtroom.
    The jury found Harper guilty of felon in possession of a weapon and
    aggravated assault with a deadly weapon. During the punishment phase of trial,
    Harper called Greg Gardner to testify. Gardner testified that Harper had been to
    prison for stalking and said he had personal knowledge of the facts of the case. He
    also testified that he met Harper in approximately 2009 and that they met after
    Harper had been to prison for stalking. The State presented the same judgment and
    3
    sentence for the same stalking conviction and alleged it as an enhancement to the
    aggravated assault with a deadly weapon conviction. The jury found the
    enhancement true.
    Sufficiency of the Evidence to Support Enhancement Paragraph
    In one issue on appeal, Harper contends that the evidence is legally
    insufficient to link him to the prior conviction for stalking that was used to enhance
    his punishment. We disagree.
    A.    Standard of Review
    Before a prior conviction may properly be used to enhance a defendant’s
    punishment, the State must prove beyond a reasonable doubt that (1) a prior
    conviction exists, and (2) the defendant is linked to that conviction. Henry v. State,
    
    509 S.W.3d 915
    , 918 (Tex. Crim. App. 2016); Flowers v. State, 
    220 S.W.3d 919
    ,
    921 (Tex. Crim. App. 2007). There is no specific document or mode of proof
    required to prove either element. Henry, 
    509 S.W.3d at 918
    ; Flowers, 
    220 S.W.3d at 921
    . The Court of Criminal Appeals has stated:
    There is no “best evidence” rule in Texas that requires that the fact of
    a prior conviction be proven with any document, much less any
    specific document. While 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 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. Just
    as there is more than one way to skin a cat, there is more than one way
    to prove a prior conviction.
    4
    Flowers, 
    220 S.W.3d at
    921–22. “Any type of evidence, documentary or
    testimonial, might suffice” to prove a conviction. 
    Id. at 922
    .
    The State has the burden to prove the link between the previous conviction
    and defendant by putting forth independent evidence showing that the defendant is
    the same person named in the previous conviction. See Beck v. State, 
    719 S.W.2d 205
    , 210 (Tex. Crim. App. 1986); see also Henry, 
    509 S.W.3d at 920
    . Acceptable
    evidence includes admitting certified copies of a judgment and sentence and
    authenticated copies of Texas Department of Corrections records, including
    fingerprints, (commonly known as a “pen packet”) that is supported by expert
    testimony identifying the prints as identical to known prints of the defendant. See
    Paschall v. State, 
    285 S.W.3d 166
    , 174–75 (Tex. App.—Fort Worth 2009, pet.
    ref’d). While that may be the preferred and most convenient way to establish a
    prior conviction and link it to the defendant, the State may prove these elements in
    several different ways, including the defendant’s admission or stipulation or
    testimony by a person who was present when the defendant was convicted of the
    specified crime who can identify the defendant as that person. Henry, 
    509 S.W.3d at 920
    . When the accused is present in court, the factfinder may compare his
    appearance with documentary proof of the conviction that contains photographs or
    a detailed physical description of the named person. Flowers, 
    220 S.W.3d at 925
    .
    5
    Regardless of the type of evidentiary puzzle pieces the State offers to prove
    the existence of a prior conviction and its link to a defendant, the factfinder
    determines if the pieces fit together sufficiently to complete the puzzle. Flowers,
    
    220 S.W.3d at 923
    ; see also Henry, 
    509 S.W.3d at 919
    . The trier of fact must
    consider the evidence as a whole, as each piece of evidence may provide little
    meaning if considered in isolation. Henry, 
    509 S.W.3d at 919
    . The factfinder looks
    at the totality of evidence admitted concerning the prior conviction to determine
    (1) whether there was a prior conviction, and (2) whether the defendant was the
    person convicted. Flowers, 
    220 S.W.3d at 923
    ; see also Henry, 
    509 S.W.3d at 919
    .
    “If these two elements 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.” Flowers, 
    220 S.W.3d at 923
    .
    In reviewing the legal sufficiency of the evidence presented at trial, a
    reviewing court must view all the evidence in the light most favorable to the State.
    Villareal v. State, 
    286 S.W.3d 321
    , 327 (Tex. Crim. App. 2009). The evidence is
    legally sufficient if based on “the totality of the evidence,” the trier of fact could
    determine beyond a reasonable doubt that there was a previous conviction and that
    the defendant was the one convicted. Flowers, 
    220 S.W.3d at 923
    .
    6
    B.    Analysis
    On appeal, Harper contends that the State did not offer sufficient proof of his
    identity to link him to the stalking conviction because a fingerprint examiner did
    not testify that the fingerprints admitted in the pen packet belong to Harper. He
    also alleges that the pen packet contained only his name as an identifying factor.
    We disagree.
    The State alleged in its indictment for aggravated assault that Harper had a
    prior felony conviction for stalking from July 19, 2013 in the 180th District Court
    of Harris County, Texas in cause number 1334283. The State introduced and the
    trial court admitted State’s Exhibit 32, which is a penitentiary packet or “pen
    packet.” A pen packet consists of records from the Texas Department of
    Corrections or other penal institutions regarding a person’s prior convictions.
    State’s Exhibit 32 included a certified copy of a judgment of conviction for
    stalking against Joey Harper in cause number 1334283 from the 180th District
    Court in Harris County signed on July 19, 2013. The exhibit includes the name,
    date of birth, sex, race, hair color, eye color, height, weight, and tattoos of the
    person convicted. It describes the tattoos to the left wrist, right forearm, and left
    cheek of the person named in the judgment. It also included headshots, taken
    straight on and from a profile view. The photographs show a distinct facial tattoo
    on the left cheek.
    7
    During trial, Harper was in the courtroom. The jury could see Harper and
    compare his appearance to the photographs in the pen packet. The jury could
    observe whether Harper had the same facial tattoos as described and photographed.
    The jury could also compare Harper’s appearance to the description of the person
    in the pen packet, including name, race, hair color, eye color, age, height, and
    weight. See Martin v. State, No. 14-21-00736-CR, 
    2023 WL 3115779
    , at *7 (Tex.
    App.—Houston [14th Dist.] Apr. 27, 2023, no pet.) (mem. op.) (finding sufficient
    evidence to link defendant to prior conviction based on State ID number, name,
    date of birth, and personal descriptors); see also Flowers, 
    220 S.W.3d at 925
    (finding sufficient evidence to link defendant to prior conviction when trial court
    could compare defendant in person with photograph in driver’s license record and
    descriptors found in certified copy of judgment); Dorsett v. State, 
    396 S.W.2d 115
    ,
    116 (Tex. Crim. App. 1965) (finding sufficient evidence to link defendant to prior
    conviction when jury had opportunity to observe defendant and determine by
    comparison with description in the record, including date of birth, race, hair and
    eye color, weight, and height, whether defendant was same person previously
    convicted).
    Additionally, the childcare worker from the 24 Hour Fitness testified that
    she had seen Harper regularly at the gym. She identified him in the courtroom and
    identified him as the person in the photographs in the pen packet. Finally, Gardner
    8
    testified that Harper had been to prison for stalking and that he had been released
    by the time they met. While Gardner did not know the exact year that Harper was
    incarcerated for stalking, his testimony did not conflict with evidence that Harper
    was incarcerated for stalking around 2013, and it fit the puzzle of evidence before
    the jury.* See Henry, 
    509 S.W.3d at 920
     (stating that witness that testified that
    defendant had been convicted of offense but did not provide date of offense was
    insufficient to link defendant to prior conviction but could “serve as one piece of
    evidence to be viewed in conjunction with all other pieces”).
    The evidence was legally sufficient to show beyond a reasonable doubt that
    there was a previous conviction for stalking and that Harper had been convicted.
    Flowers, 
    220 S.W.3d at 923
    .
    Conclusion
    We affirm the judgment of the trial court.
    Peter Kelly
    Justice
    Panel consists of Justices Kelly, Hightower, and Guerra.
    Do not publish. TEX. R. APP. P. 47.2(b).
    *
    Gardner testified that he met Harper in 2009. He also testified that when he met
    Harper, Harper had been released from prison for stalking. When asked if that
    meant he had met Harper later than 2009, he responded affirmatively.
    9
    

Document Info

Docket Number: 01-22-00249-CR

Filed Date: 12/21/2023

Precedential Status: Precedential

Modified Date: 12/25/2023