Daniel G. Swartz v. State

Opinion issued May 22, 2008

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00797-CR

__________

DANIEL G. SWARTZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1107914

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MEMORANDUM OPINION  

A jury found appellant, Daniel G. Swartz, guilty of the offense of unlawful possession of a firearm, ⁽¹⁾ and, after appellant pleaded true to the allegation in one enhancement paragraph that he had previously been convicted of the "felony of assault of a family member-second offender," the jury assessed his punishment at confinement for 12 years. In a single point of error, appellant contends that the "evidence is legally insufficient to prove the jurisdictional requirement that appellant was previously convicted of the felony alleged in the indictment."

We affirm.

Factual and Procedural Background

The indictment alleged that appellant,

[O]n or about March 12, 2007, did then and there unlawfully, intentionally, and knowingly possess a firearm, after having been convicted of a felony, namely, EVADING ARREST--MOTOR VEHICLE in the 178TH District Court of Harris County, Texas in Cause Number 1026095 on August 17, 2005, and said possession of a firearm occurred before the fifth anniversary of [appellant's] release from confinement following conviction on August 17, 2005.

To establish appellant's prior conviction of the felony offense of evading arrest with a motor vehicle, the State presented the testimony of Harris County Sheriff's Deputy Gerardo Tijerina, the Harris County custodian of jail records. She authenticated appellant's jail card for the felony offense of evading arrest with a motor vehicle. The jail card, which was introduced into evidence, stated that the person arrested for the felony offense of "evade arrest w/ motor vehicle" was Daniel G. Swartz a/k/a Daniel Gibran Swartz, the offense date was "050605," the cause number was "102609501010," and the assigned court was "178." The jail card also contained the defendant's signature and fingerprints. It also stated that the "sentence begin[] date" was "110305," the booking date was "110305," and the "release date" and "outdate" was "11505."

Harris County Sheriff's Deputy Katherine Mills, who was trained in fingerprint analysis, testified that she obtained appellant's fingerprints directly from him and compared them to the fingerprints contained on the jail card. She explained that appellant's fingerprints, which were contained on an exemplar, which was introduced into evidence, matched the fingerprints contained on the jail card. The State then introduced into evidence a certified copy of a judgment for the evading arrest offense indicated on the jail card. Mills conceded that she was not able to compare appellant's fingerprints with the fingerprints on the judgment because the fingerprints on the judgment were "not sufficient in quality." However, Mills stated that she did compare the information contained on the jail card with the information contained on the judgment. She determined that the judgment reflected that appellant was convicted for the same evading arrest offense indicated on the jail card. Mills noted that the jail card and judgment contained matching cause numbers, matching offense descriptions, matching offense dates, matching names of "Daniel Gibran Swartz," and matching courts in which appellant had been convicted for the offense. Mills further noted that the judgment reflected that the offense for which appellant had been convicted was a felony, appellant's sentence was imposed and began on August 17, 2005, appellant was sentenced to 174 days in the Harris County Jail, and appellant had time credited of 87 days.

At the conclusion of trial, the jury found appellant guilty of unlawful possession of a firearm by a felon, as alleged in the indictment. ⁽²⁾

Unlawful Possession of a Firearm by a Felon

In a single point of error, appellant contends that the "evidence is legally insufficient to prove the jurisdictional requirement that appellant was previously convicted of the felony alleged in the indictment." Appellant asserts that although the indictment and jury charge "required the State to prove [the] prior case number [for his prior felony offense was] 1026095," the jail card stated a different case number, "102609501010." Appellant also asserts that the sentencing dates contained in the jail card and the judgment do not match. In sum, appellant asserts that the State "failed to link the case number and sentencing dates in the jail card to the judgment and sentence beyond a reasonable doubt."

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

A person commits the offense of unlawful possession of a firearm if that person "has been convicted of a felony" and "possesses a firearm . . . after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later." Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2007).

To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that a prior conviction exists and the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); see also Garner v. State, 864 S.W.2d 92, 97 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd) ("The State may prove a prior conviction by any of several methods, one of which is by the introduction of certified or otherwise properly authenticated copies of the judgment and sentence and records of the Institutional Division of the Texas Department of Criminal Justice or a county jail that include fingerprints of the accused, supported by expert testimony identifying the fingerprints of the accused with known prints of the defendant."). However, "[t]here 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." Flowers, 220 S.W.3d at 921. Thus, the State may prove that a defendant has been convicted of an offense in one of several ways "including the defendant's admission or stipulation, testimony by a person who was present when the defendant was convicted of the specified crime and can identify the defendant as that person, or documentary proof [] 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.

As explained by the Court of Criminal Appeals, "[r]egardless 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. at 923. "The trier of fact looks at the totality of the evidence admitted to determine (1) whether there was a previous conviction, and (2) whether the defendant was the person convicted." Id. "If these two elements can be found beyond a reasonable doubt," then the evidence is legally sufficient to prove a prior conviction. Id.

Here, Mills testified that appellant's fingerprints appeared on the jail card and that the jail card, which was introduced into evidence, identified appellant as the person arrested for committing the offense of evading arrest with a motor vehicle on May 6, 2005. The jail card further identified the cause number assigned to appellant's cause as "102609501010" and the court as "178." Mills further testified that a certified copy of the judgment and sentence, which the State also introduced into evidence, contained a substantially similar cause number of "1026095," omitting only the suffix 01010, to the cause number identified by the jail card. The judgment also contained the name "Daniel Gibran Swartz," the court information as the "178th District Court," and the offense date information of "May 6, 2005," all of which matched the information on the jail card. Mills stated, after comparing the jail card and judgment, that they related to the same felony offense.

In regard to the alleged discrepancy between the cause numbers, we conclude that the omission of the five digit suffix, "01010," from the cause number in the judgment was not material and that this omission did not preclude the jury from finding, beyond a reasonable doubt, that appellant was the person identified in the judgment as the person convicted of the felony offense of evading arrest. See Human v. State, 749 S.W.2d 832, 838-39 (Tex. Crim. App. 1988) (finding that, although there was "slight discrepancy" between alleged and proved cause numbers, cause numbers were "substantially the same" and "that any rational trier of fact could conclude from the admitted circumstantial evidence that appellant was one and the same person" convicted in cause number alleged in indictment); Garner, 864 S.W.2d at 97 (finding that jury could rationally have concluded, beyond reasonable doubt, from jail card and other identity evidence, that appellant had been convicted of aggravated robbery, in cause number "386,982," as alleged in indictment, even though jail card showed cause number of "038698201010"); Enriquez v. State, No. 01-94-00657-CR, 1995 WL 51064, at *2 (Tex. App.--Houston [1st Dist.] Feb. 9, 1995, no pet.) (not designated for publication) (finding no "material variance" between cause number "9347494" stated in indictment and judgment and cause number "93474940101" reflected in jail card). During trial, appellant did not even argue that this alleged discrepancy precluded a finding of identity between the jail card and the judgment. To the extent that the jury may have noticed this discrepancy on their own, the jury was entitled to attach little, if any, significance to it in determining that appellant had been convicted of the felony offense of evading arrest with a motor vehicle, as stated in the judgment, on August 17, 2005, and that appellant had been sentenced to 174 days confinement for this offense.

As the State concedes, there is a discrepancy between the jail card and the judgment in regard to the sentencing date. At trial, neither party addressed this discrepancy and, although appellant now complains of this discrepancy, neither party offers any explanation for it. Appellant did not challenge Mills on the discrepancy during his cross-examination of her, and he did not argue that this discrepancy precluded his conviction for the unlawful possession of a firearm. ⁽³⁾ In fact, in her closing argument, appellant's counsel conceded that appellant did "have a prior felony for evading arrest." Thus, although we recognize the discrepancy between the jail card and the judgment in regard to the sentencing date, we conclude that the discrepancy did not preclude the jury from finding, beyond a reasonable doubt, that appellant had been previously convicted on August 17, 2005 of the felony offense of evading arrest.

In support of his argument that the evidence is legally insufficient to support his conviction, appellant relies on Sanders v. State, 787 S.W.2d 435 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). In Sanders, we considered whether three jail cards introduced by the State established that Sanders's previous conviction, for which he had been placed on probation, had become final. Id. at 439. The State had failed to introduce properly authenticated copies of the orders revoking Sanders's probation, and we looked to the jail cards to determine the finality of his conviction. Id. We noted that the three jail cards contained numerous inconsistencies regarding Sanders's sentencing date, release date, "release reason," and the "arrest offense." Id. The jail cards also had "significant differences" from the judgment regarding the offense description and offense date. Id. at 439-40. We concluded that the jail cards were not sufficiently reliable to prove that the person identified on them had in fact been finally convicted because nothing on the jail cards proved that Sanders's probation had been revoked. Id.

Here, the finality of the conviction referenced in the judgment is not a contested issue. More importantly, other than the differences in the sentencing dates, which neither party made any effort to address at trial, there are no other material differences between the jail card and the judgment used by the State to prove appellant's prior felony conviction for evading arrest. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for unlawful possession of a firearm.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.

1. See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2007).

2.

Appellant does not challenge the sufficiency of the evidence supporting the finding that he possessed a firearm on the date alleged in the indictment.

3.

Regardless of which sentencing date is accurate, appellant's possession of a firearm fell within the five year period after appellant's release from confinement for the conviction.