DocketNumber： 06-08-00050-CV
Filed Date： 8/7/2008
Status： Precedential
Modified Date： 9/7/2015
AMOS FRANK TIMMINS, SR., DECEASED
Harrison County, Texas
Bonnie Bernice Timmins filed a notice of appeal April 23, 2008. The clerk's and reporter's records were due to be filed with this Court on or before May 30, 2008. Appellant is not indigent, and is thus responsible for paying or making adequate arrangements to pay the clerk's and reporter's fees for preparation of the records. See Tex. R. App. P. 37.3(b), (c). On July 3, 2008, we contacted counsel by letter, reminding him that the record was over thirty days past due, and warning that, if we did not receive an adequate response within ten days, we would dismiss the appeal for want of prosecution pursuant to Rule 42.3(b) and (c) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.3(b), (c).
As of the date of this opinion, we have received no response. We also contacted the county clerk, who informed us that appellant has not sought to have a record prepared. The records are now over sixty days past due.
We dismiss the appeal for want of prosecution.
Bailey C. Moseley
Justice
Date Submitted: August 6, 2008
Date Decided: August 7, 2008
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00063-CR
______________________________
COURTNEY BENTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 349th Judicial District Court
Houston County, Texas
Trial Court No. 08CR-178
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
O P I N I O N
In the process of pleading guilty to murder,[1] Courtney Benton confessed that, in the early morning hours of September 17, 2008, he shot and killed Steven McCullough in Houston County.[2] Benton elected to have the jury assess his punishment.[3] Benton appeals on the sole basis that the admission of certain juvenile court judgments was improper because the State did not provide evidence that he was the person reflected in those judgments. Because there was ample evidence that Benton was the person named in those judgments, we affirm the judgment of the trial court.
Certified copies of the records in question were admitted, over hearsay and relevance objections,[4] as Exhibits 82 and 83. On appeal, Benton claims error in the admission of the juvenile court judgments because, it is alleged, there is no evidence linking Benton to those judgments.[5]
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 v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to establish these two elements. See id. However, proof that the defendant merely has the same name as the person previously convicted is not sufficient to satisfy the prosecutions burden. See Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986). The approved methods of proof of identity set forth in various cases are not exclusive and may often include the use of a combination of methods. Id.
In the instant case, States Exhibits 82 and 83 were generally admissible under Rule 902(4) of the Texas Rules of Evidence because they consist of certified copies of public records, certified as correct by their custodian, and, therefore, self-authenticating. Tex. R. Evid. 902(4). However, for the State to satisfy the second prong of Flowers, it was required to present independent evidence linking Benton to the juvenile judgments. See Beck, 719 S.W.2d at 210 (It is incumbent on the State to go forward and show by independent evidence that the defendant is the person so previously convicted.); see also Davis v. State, 268 S.W.3d 683, 715 (Tex. App.Fort Worth 2008, pet. refd) (relevance of prior conviction is conditioned on production of evidence sufficient to show same defendant in each case). Absent evidence linking the defendant to the prior conviction, evidence of the prior conviction is not relevant. Menefee v. State, 928 S.W.2d 274, 278 (Tex. App.Tyler 1996, no pet.). Whether sufficient links are present is determined on a case-by-case basis. Human v. State, 749 S.W.2d 832, 83536 (Tex. Crim. App. 1988). Further, the State may use circumstantial evidence to prove the defendant is the same person named in the alleged prior convictions. Id. at 83536, 839. The fact-finder looks at the totality of the evidence to determine whether the State proved the prior convictions beyond a reasonable doubt. Flowers, 220 S.W.3d at 923.
At trial, the State presented certified copies of five judgments and related documents:[6]
(1) Judgment and stipulation of evidence in cause number 2003-00720J, dated March 6, 2003, reflecting Courtney Antoine Bentons conviction for engaging in organized crime (theft of automobile), a first degree felony, on January 20, 2003, in Harris County. The judgment reflects that Benton was a juvenile at the time of the offense, lists his mother as Joycelyn Alexander (Benton), and lists Bentons date of birth as April 11, 1987. The judgment and stipulation of evidence are signed by Courtney Antoine Benton;
(2) Corrected judgment in cause number 2003-00720J, dated April 17, 2003. This judgment likewise reflects that Courtney Antoine Benton was a juvenile at the time of the offense, lists Bentons mother as Joycelyn Alexander (Benton), and lists Bentons date of birth as April 11, 1987;
(3) Judgment and stipulation of evidence dated July 25, 2003, reflecting violation of probationary rules by Courtney Antoine Benton related to cause number 2003-00720J. This judgment reflects that Benton was a juvenile, lists Joycelyn Alexander as Bentons mother on the attached stipulation of evidence, and lists Bentons date of birth as April 11, 1987.[7] The judgment is signed by Courtney Benton and the stipulation of evidence is signed by Courtney Antoine Benton;
(4) Judgment and stipulation of evidence dated September 30, 2003, reflecting violation of probationary rules by Courtney Antoine Benton related to cause number 2003-00720J. This judgment reflects that Benton was a juvenile, lists his mother as Joycelyn Alexander, and lists Bentons date of birth as April 11, 1987. The judgment and stipulation of evidence are signed by Courtney Benton; and
(5) Judgment and stipulation of evidence dated November 25, 2003, in cause number 2003-09372J, reflecting Courtney Antoine Bentons conviction for possession of a controlled substance, a class A misdemeanor, on November 13, 2003, in Harris County. The judgment reflects that Benton was a juvenile at the time of the offense and lists his date of birth as April 11, 1987. The judgment and the stipulation of evidence are signed by Courtney Benton.
Deborah Jones, Bentons Houston County community supervision officer beginning in August 2008, testified that her records indicated Bentons date of birth as April 11, 1987. At trial, the State played a video recording of Bentons confession to McCulloughs murder. During the course of his statement, Benton identified himself as Courtney Antoine Benton, states his date of birth as April 11, 1987, and identifies his mother as Joycelyn Alexander.
In addition, Officer Samuel Wagner with the Crockett Police Department testified that Benton appeared at the Houston County Sheriffs Department on the afternoon of September 17, 2008, and asked to speak to Wagner. During the course of his visit with Wagner, Benton provided a written statement, identified by Wagner as States Exhibit 49, in connection with the investigation of McCulloughs murder. This statement was signed by Benton, and Benton was identified by Wagner at trial as the person who provided the statement. Wagner further testified that he spoke with Benton a second time after Bentons arrest September 19, 2008. At that time, Benton provided a second written statement, identified by Wagner as States Exhibit 51. This statement was likewise signed by Benton. Exhibits 49 and 51 each list Bentons date of birth as April 11, 1987.
Benton contends there is insufficient evidence to link him to the prior convictions contained in States Exhibits 82 and 83. We disagree. The prior convictions are linked to Benton via (1) his name, Courtney Antoine Benton, (2) his birth date of April 11, 1987, (3) his mothers nameJoycelyn Alexander (Benton), and (4) Bentons signature, which appears on Exhibits 49 and 51, the authenticity of which has not been contested.
All pleadings filed in connection with Bentons prosecution for McCulloughs murder were styled using the name, Courtney Benton. However, Benton stated that his full name is Courtney Antoine Benton. The judgments and stipulations of evidence admitted at trial as States Exhibits 82 and 83 are signed variously as Courtney Benton and as Courtney Antoine Benton. Generally, a name alone is insufficient to connect a defendant to a prior judgment. See Beck, 719 S.W.2d at 210. Here, we are not confronted with a name commonly encountered, a partial name, or initials. We are provided with the appellants full name, an individual who was indicted in Houston County, Texas, for a crime committed in Crockett, Texas. We take judicial notice that it is 115.95 miles from Crockett, Texas to Houston, Harris County, Texas,[8] where the prior convictions were rendered. While the name alone is not the sole evidence connecting Benton to the prior convictions, it is 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.[9]
The second factor connecting Benton to the prior convictions is his date of birth. The prior convictions each list Bentons date of birth as April 11, 1987. Benton himself acknowledges his date of birth as April 11, 1987; this is substantiated by Jones testimony as well. We take judicial notice of the fact that, given Bentons date of birth, he would have been a juvenile at the time of the Harris County convictions in March and November 2003.[10] Both prior convictions indicate that the Courtney Antoine Benton therein convicted was a juvenile.
In addition to his name and date of birth, the identity of Bentons mother connects Benton to the prior convictions admitted as States Exhibit 82.[11] The person identified as Bentons mother on the prior felony conviction is Joycelyn Alexander (Benton). The person Benton identified as his motherin the video recording of his confession played to the jury is Joycelyn Alexander.
Finally, the prior convictions and stipulations of evidence comprising States Exhibits 82 and 83 are signed by the defendant variously as Courtney Benton or Courtney Antoine Benton.[12] Bentons signature appeared on States Exhibits 49 and 51, the written statements Benton provided to Wagner. While the jury was not specifically requested to compare these signatures with those appearing on the prior convictions, it is nevertheless competent to give evidence of handwriting by comparison, made by experts or by the jury. Tex. Code Crim. Proc. Ann. art. 38.27 (Vernon 2005); see Zimmerman v. State, 860 S.W.2d 89, 97 (Tex. Crim. App. 1993) (authentication of handwriting may be established by comparison performed either by experts or by jury), vacated & remanded on other grounds, 510 U.S. 938 (1993). Exhibits 49 and 51 were admitted without objection and were available to the jury for signature comparison. The jury was therefore free to compare the signatures appearing on Exhibits 49 and 51 (which were never denied by Benton) with those appearing on the prior convictions to assist in the determination of whether or not Benton was indeed the same individual listed in the prior convictions.
As a practical matterwhile Benton objected to the admission of the prior convictions due to claimed inadequate identification of the person so convictedneither the State nor the defense argued the identity issue to the jury. In fact, when counsel for Benton did mention the prior felony conviction in closing argument, he stated,
Now, the title to one of them is unanimous because its engaging in organized criminal activity. But if you will look, Courtney and several other youths, again, several years ago stole a car. That was it. And he pled guilty and took his punishment.
Moreover, in speaking of the prior misdemeanor conviction, counsel for Benton stated, The other offense is a drug possession case, codeine. And he pled guilty to that. A judicial admission must be a clear, deliberate, and unequivocal statement. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000); Spradlin v. State, 100 S.W.3d 372, 380 (Tex. App.Houston [1st Dist.] 2002, no pet.). A judicial admission bars a party from disputing a fact and relieves his adversary from having to present proof of the fact. Auld, 34 S.W.3d at 905. While the State does not mention this argument in its brief, we find the foregoing statements on behalf of Benton to be judicial admissions.
Considering the totality of the evidence linking Benton to the prior convictions, even in the absence of the foregoing judicial admissions, a rational jury could have found beyond a reasonable doubt that Benton was indeed the same person identified in the prior convictions admitted via States Exhibits 82 and 83.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 3, 2011
Date Decided: February 4, 2011
Publish
[1]Tex. Penal Code Ann. § 19.02 (Vernon 2003).
[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[3]The jury returned a sentence of ninety-nine years imprisonment in the Texas Department of Criminal JusticeInstitutional Division.
[4]We understand Bentons relevance objection to be that there was no evidence linking the admission of the prior convictions to Benton, and therefore, the evidence was not relevant.
[5]At the trial on punishment, the State sought to introduce Bentons Texas Youth Commission (TYC) records. Benton objected to the introduction of the TYC records as hearsay and because they included copies of purported judgments. The trial court ruled that the judgments would be redacted from the TYC records and determined to rule on the hearsay objection outside the presence of the jury. Subject to these rulings, the TYC records were admitted. It appears from the record that the juvenile court judgments at issue were not redacted from the TYC records. Certified copies of these judgments were separately introduced and received into evidence as Exhibits 82 and 83. Further, the trial court, after having reviewed the proposed 200-page exhibit of TYC records, ruled that six pages of those documents would be admitted. Those six pages were stapled and marked as States Exhibit 80. Exhibit 80 in the appellate record includes all 200 pages of the TYC records. The erroneous inclusion of the entire set of TYC records has not been raised as an issue on appeal; we therefore do not address it. Tex. R. App. P. 38.1.
[6]These are set out in two exhibits, numbered 82 and 83.
[7]Exhibit 83 also includes a change of custody order in cause number 2003-00720J, dated August 22, 2003, placing Courtney Antoine Benton in the custody of his mother, listed as Joycelyn Alexander.
[8]We may take judicial notice of facts which are notorious, well known, or easily ascertainable. See Gonzales v. State, 723 S.W.2d 746, 750 (Tex. Crim. App. 1987). This includes distances between two geographical locations. Bell v. State, 63 S.W.3d 529, 532 n.3 (Tex. App.Texarkana 2001, pet. refd).
[9]The prior convictions were entered in March and November 2003.
[10]Bentons age at the time of the prior convictions is easily ascertainable. See Gonzales, 723 S.W.2d at 751.
[11]The prior misdemeanor conviction admitted as States Exhibit 83 does not identify a parent or guardian for Courtney Antoine Benton.
[12]The corrected judgment included as part of States Exhibit 82 is not signed by the defendant.