Reymundo Montiel v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00405-CR
Reymundo Montiel, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF HAYS COUNTY
NO. CR-16-0379-E, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
Reymundo Montiel was charged with two counts of aggravated sexual assault
involving his thirteen-year-old niece B.M. and two counts of indecency with a child by contact
involving his ten-year-old niece Y.M. See Tex. Penal Code §§ 21.11, 22.021. The indictment
also contained four enhancement paragraphs alleging that Montiel was previously convicted
of four counts of aggravated battery in another state. See id. § 12.42(d). The jury convicted
Montiel of all four charges and found that he had previously been convicted of two sequential
felony offenses, and Montiel was sentenced to 99 years’ imprisonment for both aggravated-
sexual-assault charges and to 60 years’ imprisonment for both indecency charges. See id. On
appeal, Montiel contends that the trial court erred during the guilt-innocence phase by allowing
the outcry witnesses to testify, prohibiting him from cross-examining B.M. about the contents of
her juvenile record, and denying his request to question the prosecutor as a witness. Montiel
further argues that the evidence supporting the enhancement allegations was insufficient to
support the jury’s findings and that the trial court erred during the punishment phase by
admitting evidence of prior convictions and allowing an unqualified witness to testify as a
fingerprint-identification expert. We will affirm the trial court’s judgments of conviction.
BACKGROUND
Montiel moved into his sister’s home and lived with her and her children,
including B.M. and Y.M. After Montiel had lived in the home for some time, B.M. informed her
aunt Maria Garcia that Montiel had sexually abused her, and Garcia and B.M. informed B.M.’s
father about the abuse. Around this same time, B.M. was expelled from her school and enrolled
at the Juvenile Justice Alternative Education Program, which was run by the Hays County
Juvenile Probation Department. After being enrolled for a few months, B.M. informed several
school officials that Montiel had sexually abused her. Once the officials learned about the abuse,
they called the police and Child Protective Services. Subsequently, Vanessa Paulini conducted
forensic interviews for B.M. and Y.M. at a child advocacy center. The police arrested Montiel,
and he was charged with two counts of aggravated sexual assault and two counts of indecency
with a child by contact. The indictment alleged that Montiel had been convicted of four prior
felony offenses in Illinois.
Before trial, Garcia was designated as the outcry witness for the offenses
involving B.M., and Paulini was designated as the outcry witness for the offenses involving
Y.M. At trial, B.M., Y.M., their mother, Garcia, Paulini, an employee of Child Protective
Services, several police officers, and expert witnesses testified. After considering the evidence
presented at trial, the jury found Montiel guilty of all four charges.
At the start of the punishment phase, Montiel pleaded “not true” to the
enhancement allegations in the indictment. In the punishment phase, several witnesses testified,
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including Matthew Grantham, a Hays County District Attorney’s Office investigator. Grantham
was designated as an expert in fingerprint identification. During Grantham’s testimony, the
following exhibits were admitted into evidence: Montiel’s booking sheet for the current offenses,
a criminal history from Illinois, multiple judgments of conviction from Illinois, and a pen
packet from Illinois. At the end of the punishment phase, the jury found that Montiel had
previously been convicted of two sequential felony offenses and sentenced him to 99 years’
imprisonment for the aggravated-sexual-assault convictions and to 60 years’ imprisonment for
the indecency convictions.
Montiel appeals the trial court’s judgments of conviction.
DISCUSSION
In his first issue on appeal, Montiel asserts that the trial court erred by admitting
the testimony of the two outcry witnesses. In his second issue on appeal, Montiel contends
that the trial court erred by prohibiting him from cross-examining B.M. regarding her juvenile
record and by preventing him from questioning the prosecutor. In his final issue, Montiel argues
that the evidence supporting the jury’s findings regarding the enhancement allegations was
insufficient, that the trial court erred by admitting during the punishment phase exhibits
pertaining to criminal convictions from another state, and that the trial court erred by allowing
Grantham to testify as an expert witness.
Outcry Witness Testimony
During a hearing outside the presence of the jury, the State indicated that it
wanted to call an outcry witness for each of the victims. First, the State informed the trial court
that it intended to call B.M.’s aunt, Garcia, to testify as an outcry witness regarding B.M.’s
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statements to her. Next, the State informed the trial court that it intended to call Paulini to testify
regarding Y.M’s outcry to her during the forensic interview. During the hearing, both Garcia
and Paulini testified.
In her testimony, Garcia explained that B.M. made an outcry to her by stating that
Montiel “raped her” but that B.M. did not provide any additional information regarding the
allegations. Next, Paulini testified that during the forensic interview, Y.M. stated that Montiel
“touched her in a nasty way” when she was asleep in her room, motioned to her private area
when discussing where Montiel touched her, said Montiel put his hand inside her underwear and
touched “it” with his fingers, related that Montiel also “swiped” her private area with his hand,
and stated that Montiel touched her chest area under her bra. In her testimony, Paulini also
stated that she displayed a drawing of a child during the interview and asked Y.M. to point to the
areas that Montiel touched and that Y.M. pointed to an area that was “outside of th[e] line”
where the vagina was located on the drawing and to the nipple area. After hearing Garcia’s and
Paulini’s testimonies and Montiel’s objections, the trial court overruled Montiel’s objections and
concluded that both witnesses could testify as outcry witnesses.
On appeal, Montiel recognizes that article 38.072 of the Code of Criminal
Procedure specifies that an outcry statement is not inadmissible on hearsay grounds in cases
involving certain sexual offenses against children if the statement “describe[s] . . . the alleged
offense,” is “made by the child,” and is “made to the first person, 18 years of age or older, other
than the defendant, to whom the child . . . made a statement about the offense,” and if the
“trial court finds, in a hearing conducted outside the presence of the jury, that the statement is
reliable based on the time, content, and circumstances of the statement.” See Tex. Code Crim.
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Proc. art. 38.072, §§ 1, 2; see also Tex. R. Evid. 801 (defining hearsay). However, Montiel
contends that the testimony from Garcia and Paulini was too general to qualify as an outcry.
Regarding Garcia’s outcry testimony, Montiel asserts that Garcia generally
testified that B.M. said that he raped her but did not provide any additional details and that
Garcia’s testimony did not show whether B.M. understood what the word rape means. Similarly,
Montiel argues that Paulini’s testimony was not specific enough to tell whether an offense
occurred. On the contrary, Montiel contends that Paulini’s testimony revealed that Y.M. pointed
to the general chest area and to an area outside the vagina on the drawing used in the interview
and urges that this testimony might refer to touching that the Penal Code does not prohibit.
Accordingly, Montiel asserts that Garcia and Paulini were not proper outcry witnesses because
their testimonies indicated that the statements from B.M. and Y.M. were no more than words
giving “a general allusion that something in the area of sexual abuse was going on.” See Garcia
v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); see also Reyes v. State, 274 S.W.3d 724,
727 (Tex. App.—San Antonio 2008, pet. ref’d) (explaining that proper outcry witness is first
adult to whom alleged victim relates “how, when, and where” abuse occurred (quoting Hanson v.
State, 180 S.W.3d 726, 730 (Tex. App.—Waco 2005, no pet.))).
Trial courts have “broad discretion” when deciding what witnesses qualify as
outcry witnesses, and appellate courts review those determinations for an abuse of discretion.
Garcia, 792 S.W.2d at 91-92; see Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas
2014, pet. ref’d); see also Foreman v. State, 995 S.W.2d 854, 859 (Tex. App.—Austin 1999, pet.
ref’d) (noting that prior cases “establish the difficulty that can arise in identifying the proper
outcry witness, and the broad discretion of district courts in making this determination”). Under
that standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly
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wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State, 86 S.W.3d 228,
230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435,
439 (Tex. Crim. App. 2005). When reviewing a trial court’s ruling on the admissibility of an
outcry statement, appellate courts consider the evidence that was before the trial court at the time
of its ruling. See Whitten v. State, No. 07-12-00200-CR, 2013 WL 4711198, at *5 (Tex. App.—
Amarillo Aug. 27, 2013, pet. ref’d) (mem. op., not designated for publication). “If the trial
court’s evidentiary ruling is correct under any applicable theory of law, it will not be disturbed
even if the trial court gave a wrong or insufficient reason for the ruling.” Johnson v. State,
490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
“The admission of inadmissible hearsay constitutes nonconstitutional error.” See
Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
Accordingly, the error must be disregarded unless it affected a defendant’s substantial rights.
See Tex. R. App. P. 44.2(b). Any error stemming from the admission of inadmissible hearsay
“will be considered harmless if, after examining the record as a whole, we are reasonably assured
that the error did not influence the jury’s verdict or had but a slight effect.” Linney v. State,
401 S.W.3d 764, 780 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Moreover, courts have
consistently held that any error from the admission of an outcry witness’s testimony is harmless
if the same evidence is admitted into evidence through other testimony without objection.
See Moody v. State, 543 S.W.3d 309, 314 (Tex. App.—Eastland 2017, pet. ref’d) (mem. op.)
(concluding that defendant was not harmed because “victim testified before the jury without
objection to the same facts”); Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth
2015, pet. ref’d) (determining that any error was harmless where victim provided testimony
corroborating outcry witness’s testimony).
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“We need not determine whether the trial court” abused its discretion by allowing
Garcia and Paulini to testify as outcry witnesses “because we conclude that any error” would
have been harmless. See Hernandez v. State, No. 05-12-01118-CR, 2014 WL 1178303, at *3
(Tex. App.—Dallas Mar. 21, 2014, no pet.) (mem. op., not designated for publication). During
the trial, B.M. and Y.M. testified extensively regarding the abuse and provided even more
details than either of the outcry witnesses did. Cf. Gonzales, 477 S.W.3d at 479 (noting when
explaining that error was harmless that victim “provided greater detail” than outcry witness). In
particular, B.M. testified that Montiel entered her bedroom at night using his cellphone as a light,
got into her bed, removed her shorts, got on top of her while she was on her back, inserted his
penis into her vagina, and began “humping” her. Next, B.M. explained that Montiel got up from
the bed and left the room after he “finished” and that there was a sticky substance on her leg. In
addition, B.M. testified that Montiel engaged in the same conduct on other occasions but that
she did not remember how many times. Regarding other incidents, B.M. explained that Montiel
removed her clothing while she was in the living room and inserted his penis into her vagina and
that he forced her to place her mouth “on his private part” when they were near the bathroom. In
her testimony, Y.M. related that Montiel woke her up one night by putting his hand inside her
underwear, that she felt his hand on her vagina, and that his fingers were making a circular
motion. Further, Y.M. testified that Montiel also touched her nipple under her bra. Moreover,
B.M. and Y.M.’s mother testified during the trial that Montiel admitted that he had sex with
B.M., was concerned that she might “be pregnant by him,” and wanted B.M. to have an abortion
if she was pregnant.
Additionally, recordings of the forensic interviews for B.M. and Y.M. were
admitted into evidence during Paulini’s testimony, and Montiel stated that he had no objection to
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their admission and that he wanted the recordings admitted “for trial purposes.” See Rogers v.
State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (stating general rule “that error regarding
improperly admitted evidence is waived if that same evidence is brought in later by the
defendant or by the State without objection”). On the recording of B.M.’s interview, B.M.
related that Montiel “raped” her more than one time when she was thirteen. During the
interview, B.M. also wrote down what Montiel did and specified that he “took off [her] shorts &
underwear and got on top of [her] and raped [her].” After writing that statement, B.M. explained
during the interview that Montiel’s “private part” “on the front part of his body” was placed
inside her “private part” and that this occurred more than once. In Y.M.’s interview, she related
that Montiel started touching her while she was asleep on her back, that he touched her private
area with his fingers inside her underwear, and that he touched her chest under her bra. In
addition, when asked to show on a drawing where Montiel touched her, Y.M. pointed to the
breast area and the genital area.
Accordingly, even if the trial court abused its discretion by allowing Garcia
and Paulini to testify as outcry witnesses, we would conclude that Montiel was not harmed.
See Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)
(determining that error in admission of outcry witness’s hearsay testimony was harmless when
similar evidence was presented without objection through complainant, doctor, and medical
records); see also Merrit v. State, 529 S.W.3d 549, 557 (Tex. App.—Houston [14th Dist.] 2017,
pet. ref’d) (observing that any error from admission of forensic interviewer’s testimony was
harmless where police officer and complainant gave testimony that was more detailed than
forensic interviewer’s testimony); Tex. R. App. P. 44.2(b) (requiring appellate courts to
disregard nonconstitutional errors that do not affect substantial rights).
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For these reasons, we overrule Montiel’s first issue on appeal.
Juvenile Record and Questioning the Prosecutor
In his second issue on appeal, Montiel argues that the trial court erred by denying
his request to cross-examine B.M. regarding the contents of her juvenile record and his request to
question the prosecutor as a material witness.
Juvenile Record
Before trial, Montiel informed the trial court that he wanted to cross-examine
B.M. regarding her record from the Juvenile Justice Alternative Education Program run by the
Hays County Juvenile Probation Department. Montiel asserted that B.M. had been placed in the
alternative school program because of her disciplinary issues and because she had been expelled
from her prior school, that her disciplinary issues continued at the alternative program, and that
after she had been informed that she would be suffering additional disciplinary consequences due
to her continued misbehavior, she told school officials that Montiel had sexually abused her.
Accordingly, Montiel urged that he should be able to cross-examine B.M. regarding her juvenile
record because it was relevant to whether she had a motive to fabricate the allegations to “take
the heat off” herself when she told school officials about the abuse in September 2015. After
listening to the parties’ arguments, the trial court ruled that Montiel could not cross-examine
B.M. regarding the contents of the record because there was no logical connection between the
juvenile record and a motive to lie about Montiel.
On appeal, Montiel similarly argues that he should have been able to cross-
examine B.M. regarding her juvenile record because the timing of her outcry at school as well as
the mounting trouble that she was facing supported his defensive theory that she fabricated the
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claims to deflect attention away from her misbehavior. Moreover, Montiel highlights that the
Supreme Court and the Court of Criminal Appeals have both explained that the Confrontation
Clause allows for the admission of evidence regarding a juvenile’s record in certain circumstances.
See Davis v. Alaska, 415 U.S. 308 (1974); Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010).
Under the Confrontation Clause, a defendant “shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. The purpose behind the
Clause is “to secure for the opposing party the opportunity of cross-examination because that
is ‘the principal means by which the believability of a witness and the truth of his testimony
are tested.’” Johnson, 490 S.W.3d at 909 (quoting Davis, 415 U.S. at 316). The Confrontation
Clause allows a party to attack the credibility of witnesses “or to show their possible bias, self-
interest, or motives in testifying.” Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
However, “the right to cross-examine is not unqualified.” Johnson, 490 S.W.3d
at 909. Trial courts may limit the scope and extent of cross-examination provided that the
limits do not infringe the guarantee of “an opportunity for effective cross-examination.” Johnson
v. State, 433 S.W.3d 546, 552 (Tex. Crim. App. 2014) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). Trial courts have “wide latitude” under the Confrontation Clause to
impose limits on cross-examination for multiple reasons, including when the cross-examination
would be “only marginally relevant.” Van Arsdall, 475 U.S. at 679; see also Castle v. State,
748 S.W.2d 230, 233 (Tex. Crim. App. 1988) (noting that “the scope of cross-examination is
within the control of the trial court and in the exercise of its own discretion”); see also Tex. R.
Evid. 401 (stating that evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence” and if “the fact is of consequence in determining
the action”). Accordingly, appellate courts review a trial court’s ruling on the admissibility of
10
evidence for an abuse of discretion. Johnson, 490 S.W.3d at 908; see also id. at 909 (stating
that trial court “can abuse [its] discretion by excluding admissible evidence that is offered by the
defendant to demonstrate the complainant’s motive to falsely accuse him of molestation”).
“In Texas, as in most jurisdictions, juvenile criminal records and adjudications are
not admissible to impeach the general credibility of a testifying witness, even though the juvenile
may be on probation and is technically in a ‘vulnerable relationship’ with the State throughout
that probationary period.” Irby, 327 S.W.3d at 147. Although the Rules of Evidence expressly
forbid the use of these types of records, Rule 609 contains an exception explaining that this
type of evidence may be admissible when required by the United States Constitution. See Tex.
R. Evid. 609. When discussing the interplay between these types of evidentiary prohibitions
and constitutional guarantees, the Supreme Court stated that evidentiary rules protecting the
confidentiality of a juvenile offender’s record cannot supplant the constitutional right to cross-
examine an adverse witness for bias. Davis, 415 U.S. at 320; see also id. at 321 (Stewart, J.,
concurring) (observing that Supreme Court’s holding was based on “the circumstances of this
case” and does not suggest “that the Constitution confers a right in every case to impeach
the general credibility of a witness through cross-examination about his past delinquency
adjudications”). More recently, the Court of Criminal Appeals has clarified the nature of the
interplay by explaining that “[e]vidence that a witness is on probation, is facing pending charges,
or has a prior juvenile record is not relevant for purposes of showing bias or a motive to
testify absent some plausible connection between that fact and the witness’s testimony.” Irby,
327 S.W.3d at 149.
In this case, although Montiel asserted that B.M.’s facing potential disciplinary
actions might have motivated her to direct attention away from herself, he did not explain why
11
she would have chosen to make false sexual-assault accusations against him. Cf. Hammer,
296 S.W.3d at 567-69 (determining that trial court abused its discretion by excluding evidence
indicating that complainant was angry with defendant (her father) for taking her to hospital for
sexual-assault examination after she spent night away from home because that evidence was
strong support for defendant’s theory that she had motive to falsely accuse him of sexual abuse).
In any event, the timing of the accusation was critical, and if B.M. had motive to
fabricate the allegations, she would have had that motive the first time that she reported the
abuse. See Irby, 327 S.W.3d at 153. Before the trial court made its ruling regarding B.M.’s
record, the outcry-witness hearing was held. During that hearing, evidence was presented
demonstrating that B.M. during the summer had already told her aunt Garcia, her father, and
other members of her family about the abuse before she mentioned the abuse to the school
officials in September 2015. See id. at 153-54 (rejecting argument that defendant should be able
to cross-examine victim about his juvenile deferred adjudication on theory that victim fabricated
abuse allegations to his mother to avoid getting into trouble where victim had already told other
people before telling his mother); see also Johnson, 490 S.W.3d at 911-13 (explaining that
evidence that juvenile victim in sexual-abuse case had been charged with sexually assaulting
his sister was relevant and should have been admitted, in part, because evidence showed that
juvenile’s parents found out about his abusing his sister during “the same period of time” that
juvenile alleged that defendant had been sexually abusing him).
Accordingly, we conclude that the trial court did not abuse its discretion by
concluding that Montiel failed to make a logical connection between B.M.’s allegations and
her juvenile record and, therefore, by prohibiting cross-examination regarding her record as
irrelevant. See Irby, 327 S.W.3d at 154.
12
Questioning the Prosecutor
In the next set of arguments in his second issue, Montiel contends that the trial
court erred by denying his request to question the prosecutor in this case. During B.M.’s
testimony, she stated that she did not tell the forensic examiner about an incident involving oral
sex because “it’s disgusting” but that she told the prosecutor about that incident before trial.
After B.M. made that statement, Montiel requested that he be given the opportunity to question
the prosecutor because she was a witness. The trial court denied the request. On appeal, Montiel
argues that the trial court erred because the prosecutor was a material witness in this case. More
specifically, Montiel highlights that B.M. made no mention of oral sex during her forensic
interview and contends that the prosecutor was a witness to B.M.’s inconsistent statement
regarding oral sex made shortly before trial.
Because Montiel is challenging the trial court’s evidentiary ruling, we review that
ruling for an abuse of discretion. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App.
2001). Allowing a party to call opposing counsel as a witness during a criminal trial “invariably
confus[es] the distinctions between advocate and witness” and “argument and testimony.”
United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975). For that reason, Texas law
generally “does not permit parties to call their opposing counsel to testify as a witness.” Garrett
v. State, No. 14-08-00413-CR, 2009 WL 2365621, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 4, 2009, no pet.) (mem. op., not designated for publication); see also Brown v. State,
921 S.W.2d 227, 231 (Tex. Crim. App. 1996) (Keller, J., concurring) (explaining that “[t]he
concepts of due process and fundamental fairness require a separation between the State’s
advocates and its witnesses”). In fact, the Court of Criminal Appeals has explained that this
type of questioning should only be allowed where “there is no feasible alternative for obtaining
13
and presenting the information to the jury” and where “the testimony is essential, not merely
relevant.” Flores v. State, 155 S.W.3d 144, 148 (Tex. Crim. App. 2004) (addressing State
questioning defense counsel); Garrett 2009 WL 2365621, at *2 (explaining that same analysis is
applied when defense counsel tries to question prosecutor).
Regarding the absence of a feasible alternative, we note that there were other
alternatives to calling the prosecutor as a witness. As set out above, Montiel was seeking to have
the prosecutor testify about a statement made by B.M. to the prosecutor, and B.M. was testifying
when he made the request. See Garrett, 2009 WL 2365621, at *2 (noting that defendant failed to
meet first prong where “the complainant could have testified to the same facts that appellant
sought to elicit from” prosecutor). Additionally, during a pretrial hearing regarding this issue,
the State explained that there was another witness to the conversation because a victim advocate
was present when B.M. made the statement regarding an allegation of abuse involving oral
sex. Moreover, we do not believe that Montiel has shown that the prosecutor’s testimony was
essential to his defense. See Flores, 155 S.W.3d at 149. During his cross-examination of B.M.,
Montiel was able to present his theory that B.M. had previously made prior statements that were
inconsistent with the sexual abuse that she described. For example, B.M. admitted that around
the time that the sexual abuse was allegedly occurring, she filled out a form for her alternative
school stating that she had never been sexually assaulted or felt as though she were in danger of
being sexually assaulted.
Accordingly, the trial court did not abuse its discretion by denying Montiel’s
request to question the prosecutor. See Garrett, 2009 WL 2365621, at *2.
For these reasons, we overrule Montiel’s second issue on appeal.
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Prior Convictions
In his final issue on appeal, Montiel presents several related arguments
concerning sixteen exhibits that were admitted during the punishment phase. Those exhibits
pertained to prior convictions from Whiteside County, Illinois. The first exhibit was a copy of
the criminal history for “Reymundo Montiel Jr.,” and the remaining exhibits are judgments
and other accompanying documents relating to prior convictions for “Reymundo Montiel Jr.”
or “Reymundo Montiel.” Four of the previous convictions were listed in the enhancement
paragraphs of the indictment alleging that Montiel had previously been convicted of four felony
offenses of aggravated battery, and the jury charge for the punishment phase instructed the jury
to consider whether Montiel was previously convicted of two of those prior felony offenses when
determining whether his punishment range should be elevated. See Tex. Penal Code § 12.42(d).
Those prior convictions were admitted as State’s exhibits five, eight, sixteen, and seventeen.
In his first set of arguments in his final issue, Montiel contends that the exhibits
lacked sufficient identifiers linking those convictions to him. More specifically, Montiel argues
that some of the exhibits lacked fingerprints, photographs of the defendant, and relevant dates.
In addition, Montiel asserts that the indictment in the current case listed his name as “Reymundo
Montiel” but that many of the exhibits were records for “Reymundo Montiel, Jr.” Although
Montiel mentions in this set of arguments that the exhibits should not have been admitted, his
arguments seem focused on whether there was sufficient evidence to support the jury’s
determination that he had previously been convicted of two felony offenses when the jury
assessed his punishment, and the case that he primarily relies on addresses a sufficiency
challenge to the evidence supporting the jury’s determination that enhancement allegations were
true. See Flowers v. State, 220 S.W.3d 919, 925 (Tex. Crim. App. 2007). Accordingly, we will
15
construe this set of arguments as a challenge to the sufficiency of the evidence linking Montiel to
the prior felony convictions listed as enhancement allegations. See Bridges v. State, No. 02-06-
00418-CR, 2007 WL 2693902, at *3 (Tex. App.—Fort Worth Sept. 13, 2007, pet. ref’d) (mem.
op., not designated for publication).
When reviewing the legal sufficiency of the evidence, we view all the evidence in
the light most favorable to the judgment to determine whether any rational trier of fact could
have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). In making this
determination, “[w]e view the evidence in the light most favorable to the verdict and consider all
of the admitted evidence, regardless of whether it was properly admitted.” Stahmann, 602 S.W.3d
at 577. “The jury is the sole judge of credibility and weight to be attached to the testimony of
the witnesses.” Id. “Juries can draw reasonable inferences from the evidence so long as each
inference is supported by the evidence produced at trial,” id., and are “free to apply common
sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable
inferences from the evidence,” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d).
“To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant
is linked to that conviction.” Flowers, 220 S.W.3d at 921. “No 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, the State may prove both of
these elements in a number of different ways,” including through the defendant’s stipulation
or admission, through testimony by a person who observed the defendant being convicted and
16
can identify the defendant as the person previously convicted, or through documentary proof
that contains sufficient information to establish the existence of the prior conviction and the
defendant’s identity as the person previously convicted. Id.Links to the defendant can be shown through different means, including allowing
the jury to compare photographs with the appearance of the defendant at trial or compare
identifying information such as names, sexes, heights, eye colors, and dates of birth. See
Williams v. State, 946 S.W.2d 886, 895 (Tex. App.—Waco 1997, no pet.). “A prior conviction
can be proven by the introduction of the ‘pen packet,’ which is the file from the penitentiary
where the defendant was an inmate and which contains the record of the inmate’s prior
conviction,” provided that the pen packet not only proves the existence of a conviction but also
links the conviction to the defendant. Bridges, 2007 WL 2693902, at *3. Provided that the proof
of identity is sufficient, no error will be found on appeal. Littles v. State, 726 S.W.2d 26, 32
(Tex. Crim. App. 1984).
Before the exhibits mentioned above were admitted into evidence, the trial court
admitted as an exhibit the booking sheet for the offenses at issue in this case. The booking sheet,
like the indictment, lists the name “Reymundo Montiel.” The booking sheet also lists Montiel’s
date of birth and social security number and includes a physical description of him. In addition,
the booking sheet contains Montiel’s fingerprints; identifies his alias as Reymundo Montiel, Jr.;
and bears Montiel’s signature, which he signed as “Reymundo Montiel, Jr.” The booking sheet
also contains photographs of Montiel.
As set out above, the judgments and accompanying documents corresponding to
the enhancement allegations were admitted into evidence through State’s exhibits five, eight,
sixteen, and seventeen. Those exhibits and others were admitted through the testimony of
17
Grantham, who was an investigator for the district attorney and who had received training in
fingerprint identification. The exhibits all contain a certification from the circuit clerk for
Whiteside County, Illinois, stating that she is the keeper of records for the court and that the
documents are “true and correct” copies of the documents related to the prior convictions. Cf.
Flowers, 220 S.W.3d at 921 (noting that certified copies of final judgment and sentence is “a
preferred and convenient” way of proving prior conviction).
State’s exhibit eight contains a complaint and judgment of conviction for
“Reymundo Montiel” for the offense of aggravated battery. In the plea paperwork for that
offense, the defendant signed his name as “Reymundo Montiel Jr.” as Montiel did in the booking
sheet in this case. Although the exhibit did not include the date of birth for the defendant, it
did list the date of the defendant’s conviction and the defendant’s age when he was convicted.
State’s exhibit seventeen contains a complaint and judgment of conviction for the offense of
aggravated battery for “Reymundo . . . Montiel Jr.” The name appearing on the paperwork and
judgment is “Reymundo Montiel,” but the signature on the plea paperwork is for “Reymundo
Montiel Jr.” The date of birth listed in the exhibit is the same as Montiel’s as it appears in the
booking sheet for this case. State’s exhibit sixteen contains a complaint, plea paperwork, and
judgment of conviction for “Reymundo Montiel” for the offense of aggravated battery. The
exhibit lists the defendant’s date of birth as being the same as Montiel’s. State’s exhibit five
contains, among other documents, a complaint and a judgment of conviction for aggravated
battery for “Reymundo . . . Montiel, Jr.” and specifies that the defendant’s date of birth is the
same as Montiel’s.
In addition to the exhibits discussed above, the trial court admitted other exhibits
during Grantham’s testimony that helped link Montiel to the four prior felony convictions.
18
One of those exhibits was State’s exhibit two, which is an Illinois criminal history that lists all
known convictions for a defendant named Reymundo Montiel, Jr., with the same date of birth
as Montiel’s. The circuit clerk certified that the computer printout is “a true and correct copy of
the original document as the same appears in the records on file in my office.” Cf. id. at 925(determining that “a certified copy of a computer printout” from trial court setting out prior
conviction “was sufficient” when considered in conjunction with another exhibit “to prove
beyond a reasonable doubt the existence of” prior conviction). In his testimony, Grantham
explained that the four prior aggravated-battery convictions discussed above were listed in the
criminal history and that each of the four entries for those convictions separately listed a date of
birth for the defendant, that the dates of birth were all the same, and that Montiel has the same
date of birth.
Another linking exhibit was State’s exhibit four, which is a pen packet for a
conviction for “Reymundo Montiel, Jr.” Although the entire exhibit was not certified by the
circuit clerk, the judgment included in the pen packet contains a certification from the circuit
clerk stating that the judgment is “a true and correct copy of the original document as the same
appears in the records on file in my office,” and the pen packet reflects that it was prepared by
the record supervisor for a correctional center in Illinois. The date of birth and social security
number listed in the exhibit are the same as Montiel’s. The exhibit also contains photographs
and a physical description of the defendant and a fingerprint card of the defendant’s fingerprints.
While testifying, Grantham explained that he had received training in fingerprint identification,
compared the fingerprints from Montiel’s booking sheet with the fingerprints in State’s exhibit
four, and had no doubt that the fingerprints belonged to the same person. Further, Grantham
testified that the photographs from Montiel’s booking sheet and from State’s exhibit four
19
appeared to be photos of Montiel. Additionally, Grantham related that the offense pertaining to
the pen packet was listed in the criminal history from Illinois.
Given our standard of review and considering the reasonable inferences that the
jury could have made from this evidence, we conclude that the jury could have reasonably
inferred that the individual who is the subject of the four prior aggravated-battery convictions
was Montiel and, accordingly, that the evidence is legally sufficient to link Montiel to the felony
convictions identified in State’s exhibits five, eight, sixteen, and seventeen. See id.To the extent that Montiel is asserting in this issue that the trial court erred by
admitting all sixteen exhibits because they were not properly authenticated, we cannot sustain
this appellate complaint. Appellate courts review a trial court’s decision regarding the admission
of evidence over an authentication objection under an abuse-of-discretion standard. See Hunter
v. State, 513 S.W.3d 638, 640 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The authentication
of evidence is a condition precedent to the admissibility of the evidence. See Tex. R. Evid. 901(a);
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Under the Rules of Evidence, the
proponent must “make a threshold showing that would be ‘sufficient to support a finding that the
matter in question is what its proponent claims.’” Tienda, 358 S.W.3d at 638 (quoting Tex. R.
Evid. 901(a)). Whether the proponent has crossed the evidentiary threshold is a preliminary
determination for the trial court, but the jury must determine whether the “item of evidence
is what its proponent claims.” Tienda, 358 S.W.3d at 638. “The preliminary question for the
trial court to decide is simply whether the proponent of the evidence has supplied facts that
are sufficient to support a reasonable jury determination that the evidence he has proffered is
authentic.” Id.
20
“Rules of Evidence 901 and 902 govern the authentication requirement.” Jones v.
State, 572 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Rule 901 sets
out a non-exhaustive list of examples of the types of extrinsic evidence that will satisfy the
authentication requirements. Tex. R. Evid. 901(b). For example, Rule 901 allows evidence to
be authenticated through expert testimony comparing the evidence with another specimen.
Id. R. 901(b)(3).
In contrast, Rule 902 identifies certain types of evidence that are self-
authenticating and do not need extrinsic evidence of authenticity. Id. R. 902. “A document may
be authenticated under either Texas Rule of Evidence 901 or 902 and need not be authenticated
under both.” Jones, 572 S.W.3d at 848. “[M]eeting the requirements of one part of Rule 902
establishes the documents are self-authenticated.” Id. Rule of Evidence 902 allows for self-
authentication of copies of “an official record—or a copy of a document that was recorded or
filed in a public office as authorized by law” if the copy is certified as correct by the custodian or
another person authorized to make the certification. Tex. R. Evid. 902(4). The Rules define
“record” to include “a memorandum, report, or data compilation.” Id. R. 101(h)(4).
Except State’s exhibit two, which is the criminal history, and State’s exhibit four,
which is a pen packet, the remaining exhibits contain certified copies of judgments and other
accompanying documents for prior offenses committed by an individual with Montiel’s first
and last name in Whiteside County, Illinois. The certifications were made by the circuit clerk,
contained her and her deputy clerk’s signatures, and specified that she is the “keeper of the
records, files[,] and seal” and that the judgments of conviction along with other accompanying
documents were “true and correct” copies.
21
By certifying that she was the “keeper” of the original files, the clerk
demonstrated that she was a “custodian” of those records as contemplated by Rule of Evidence
902. See id. R. 902(4); Jones, 572 S.W.3d at 849. Moreover, the circuit clerk certified that the
documents in the exhibits were “true and correct” copies of the criminal records as required by
Rule 902. See Tex. R. Evid. 902(4). Accordingly, the trial court would not have abused its
discretion by determining that the fourteen exhibits met the requirements of Rule 902. See id.
R. 101(h)(4), 902(4); Jones, 572 S.W.3d at 849.
As discussed previously, the first exhibit was a criminal history compilation for
“Montiel, Reymundo Jr.,” and listed convictions for that individual from Illinois. The exhibit
contains a certification from the same circuit clerk who was the custodian of the records listed
above stating that the clerk “hereby certif[ies] the foregoing to be a true and correct copy of the
original document as the same appears in the records on file in my office.” Moreover, this
exhibit is a compilation of the offenses set out in the exhibits above. Based on this record, the
trial court would not have abused its discretion by determining that this exhibit also met the
requirements of Rule 902 and was self-authenticating under that rule. Cf. Flowers, 220 S.W.3d
at 922-23 (noting that “[a] computer-generated compilation of information setting out the specifics
of a criminal conviction that is certified as correct by the county or district clerk of the court in
which the conviction was obtained is admissible” as self-authenticating under Rule 902).
Regarding State’s exhibit four, that exhibit does not contain the type of
certification described above. Instead, the exhibit included a letter from the record supervisor
from a correctional facility in Illinois stating that the pen packet contained the requested
information pertaining to Montiel, but the exhibit also included a judgment with a certification
from the circuit clerk stating that the judgment was a true and correct copy of the judgment
22
from the records in her office. Cf. Jones, 572 S.W.3d at 849 (concluding that pen packets from
another state were self-authenticating). In any event, exhibit four contained photographs of the
defendant that could be compared with the photographs from Montiel’s booking sheet and with
his appearance at trial, and Grantham explained that the fingerprints contained in exhibit four
and in Montiel’s booking sheet were from the same person. See Reed v. State, 811 S.W.2d 582,
587 (Tex. Crim. App. 1991) (determining that authenticity of pen packet was “corroborated by the
testimony of the State’s expert witness who stated that the fingerprints from the fingerprint card
in the pen packet and the fingerprints taken from the appellant on the morning of the punishment
hearing were made by the same individual, the appellant”); Cooks v. State, No. 05-02-01809-CR,
2004 WL 42612, at *1 (Tex. App.—Dallas Jan. 9, 2004, no pet.) (op., not designated for
publication) (concluding that trial court did not abuse its discretion by admitting evidence of
prior conviction where each exhibit contained certified copy of judgment and where fingerprint
expert testified that fingerprints in exhibits and defendant’s known fingerprints were same).
Accordingly, the trial court would not have abused its discretion by concluding that the exhibit
was sufficiently authenticated consistent with Rule of Evidence 901. See Tex. R. Evid. 901;
Reed, 811 S.W.2d at 587.
In this issue, Montiel also contends that the trial court erred by allowing
Grantham to testify as an expert on fingerprint identification. Under Rule 702, a trial court
may admit expert testimony “if the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue.” Tex. R.
Evid. 702. Before a witness may testify as an expert, the trial court must make three separate
inquiries: (1) is the witness qualified “as an expert by reason of his knowledge, skill, experience,
or education”; (2) is “the subject matter of the testimony . . . an appropriate one for expert
23
testimony”; and (3) would “admitting the expert testimony . . . actually assist the fact-finder in
deciding the case.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim App. 2006) (quoting Rodgers
v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006)). “These conditions are commonly
referred to as (1) qualification, (2) reliability, and (3) relevance.” Id. Appellate courts review
a trial court’s ruling on the admissibility of scientific expert testimony under an abuse-of-
discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
During the hearing addressing the admissibility of Grantham’s testimony, Montiel
limited his arguments to Grantham’s qualifications, and his arguments on appeal are similarly
aimed at his qualifications. Accordingly, in resolving this issue, we need not address the reliability
and relevancy prongs. See Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d) (determining that objection to expert witness’s qualifications did not
preserve for appellate review claim that expert opinion was scientifically unreliable); see also
Russeau v. State, 171 S.W.3d 871, 883 (Tex. Crim. App. 2005) (explaining that fingerprint
comparison testimony is generally admissible under Rule 702 “because it is reliable and it assists
the trier of fact in its task of determining whether” fingerprint is that of particular person).
Before the trial court made its ruling, Grantham explained that he is an
investigator and that his job requires him to collect judgments from other jurisdictions and
to compare sets of fingerprints. In addition, Grantham testified that he is certified in basic
fingerprint identification by the Texas District and County Attorneys Association. Although
Grantham agreed that the Association is an advocacy group and that he did not receive his
certification through the Department of Public Safety or the FBI, he related that he is qualified as
a fingerprint-identification expert for ink comparisons, that he received his training from the
fingerprint expert for the Bexar County Sheriff’s Office, and that the expert certified him. Cf.
24
Dominguez v. State, No. 08-13-00143-CR, 2015 WL 1137742, at *4 (Tex. App.—El Paso
Mar. 11, 2015, no pet.) (op., not designated for publication) (observing that certification from
FBI is not required to testify as fingerprint expert); see also Wyatt v. State, 23 S.W.3d 18, 27
(Tex. Crim. App. 2000) (upholding trial court’s ruling allowing witness to testify even though
witness was not “licensed” because witness had specialized knowledge from education and
practical experience). Accordingly, we conclude that the trial court did not abuse its discretion
by determining that Grantham was qualified to testify as an expert on fingerprint identification.
For these reasons, we overrule Montiel’s third issue on appeal.
CONCLUSION
Having overruled all of Montiel’s issues on appeal, we affirm the trial court’s
judgments of conviction.
__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: May 21, 2021
Do Not Publish
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