No. 05-06-00400-CR
Opinion issued: February 13, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 53088-336.
Before Chief Justice THOMAS and Justices MOSELEY and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice.
Appellant Daniel Joseph Kelly was indicted for driving while intoxicated (DWI) alleged to have occurred on April 13, 2005. The indictment alleged two previous misdemeanor convictions, making the charged offense a felony. See Tex. Penal Code Ann. § § 49.04; 49.09 (b)(2) (Vernon 2003 Supp. 2006). Appellant pleaded not guilty to the primary offense. After hearing evidence, the jury found appellant guilty. The jury then heard additional evidence on punishment, after which it assessed appellant's punishment at eight years in prison and a fine of $5,000. Appellant now appeals the judgment of conviction asserting two evidentiary issues: whether the trial court erred during the punishment phase of trial by admitting into evidence a penitentiary packet which was not properly linked to appellant and by admitting into evidence a penitentiary packet and jail information card over a proper hearsay objection. Concluding no reversible error is shown, we affirm.
The second paragraph of the indictment alleged that prior to appellant committing the primary offense of DWI on April 13, 2005, "on the 15th day of April, 2004, in Cause Number 002-86902-03, in the County Court at Law Number 2, of Collin County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated; and on the 22nd day of July, 2004, in Cause Number 2004-1-775, in the County Court at Law Number 1, of Grayson County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated."
Following the appellant's not guilty plea and before opening statements were presented, the State offered and the trial court admitted into evidence, without objection, State's Exhibits 1 and 2, final judgments in the two previous misdemeanor convictions alleged in the second paragraph of the indictment. The judgment reflects "PLEA TO ENHANCEMENT: True."
Background
On April 13, 2005, Michael Krebbs of the Denison Police Department saw a man driving a motor vehicle on a public street in Denison, Texas. As Krebbs observed the man, he turned without first signaling his intent to turn. Krebbs followed the man's vehicle and saw him make another turn without first signaling. After seeing the second traffic violation, Krebbs stopped the vehicle and made contact with the driver. At trial Krebbs identified the driver as appellant, Daniel Joseph Kelly. After talking to appellant and concluding he did not have the normal use of his mental or physical faculties, Krebbs arrested him for DWI. Appellant pleaded not guilty before a jury. Appellant did not testify and rested without presenting any evidence. The jury found appellant guilty of DWI. At the punishment phase of trial before the same jury, the State re-offered the evidence presented at the guilt-innocence phase and offered into evidence documents marked as State's Exhibits 7, 8, 9, and 10. State's Exhibits 7 and 8 showed appellant had been previously convicted of DWI in 1992. State's Exhibits 9 and 10 concerned a 1987 prior conviction for DWI and were objected to by appellant at trial and are the basis of appellant's complaint on appeal. During trial, the sponsoring witness for State's Exhibits 9 and 10 was Cindy Hagen. Hagen testified she was the records custodian for the Grayson County Jail. As part of her duties as custodian, Hagen keeps jail records for every inmate who is booked into the Grayson County jail. Hagen described the book-in procedure at that jail. Hagen identified State's Exhibit 9 as an arrest sheet for appellant for a DWI arrest that occurred on April 13, 2005. During Hagen's testimony, defense counsel requested to take her on voir dire. After questioning Hagen on voir dire, counsel objected to the admission of State's Exhibit 9 on hearsay grounds. Over counsel's hearsay objection, State's Exhibit 9 was admitted into evidence. After its admission, Hagen read certain identifying information on State's Exhibit 9, including the name, Daniel Joseph Kelly Jr., date of birth 4-14-55, white male, brown eyes, brown hair, 5 feet eight inches, 200 pounds, social security number 459-19-9174. Hagen also read that the defendant so identified had a Marine Corps tattoo on his right shoulder and his place of birth was Kingston, Jamaica. Hagen also read the defendant's driver license number as 04783Y7. Hagen identified State's Exhibit 10 as a properly certified penitentiary packet prepared for a Daniel Kelly. Defense counsel objected to the admission of State's Exhibit 10 because proper identification had not been made, specifically that there had been no fingerprint comparison between the fingerprints contained in State's Exhibit 10 and appellant's known fingerprints or by a proper witness from the originating agency. Additionally, defense counsel objected on hearsay grounds. The trial court overruled counsel's objections, stating his objections went to the weight of the evidence and not to the admissibility of the document. Hagen then read certain identifying information from State's Exhibit 10, including the name Joseph Daniel Kelly, date of birth of 1-14-55, hair color brown, eye color brown, and place of birth Jamaica. When asked by the prosecutor to re-examine the date of birth, Hagen testified the birth month could be a 4 and not a 1, but she was not sure. The State then rested. Appellant rested without presenting any evidence. After the jury charge on punishment was read, the jury asked for, and were given, the admitted exhibits. The jury took the exhibits with them when the jurors retired to deliberate. After deliberation, the jury assessed appellant's punishment at eight years in prison and a $5,000 fine. Appellant appealed. Appeal
On appeal, appellant argues his two evidentiary points together. So shall we. Appellant contends the trial court erred by overruling his objections to the admission into evidence of State's Exhibits 9 and 10 because the documents were hearsay and the penitentiary packet was not properly linked to appellant. Appellant recognizes the State is entitled to introduce authenticated copies of prison records and certified copies of a judgment and sentence to prove a defendant has committed another crime. Alridge v. State, 732 S.W.2d 395, 396 (Tex.App.-Dallas 1987, pet. ref'd). Appellant further recognizes there is no exclusive method for linking penitentiary packets and judgments to a particular defendant, although such documents must be so independently linked. Alridge, 732 S.W.2d at 396; Griffin v. State, 181 S.W.3d 818, 820 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Appellant complains, however, that because the sponsoring witness, Hagen, testified the fingerprints, photograph and birth date could not be matched to appellant, and she had no personal knowledge of the contents of the penitentiary packet, the trial court should have sustained his objection and disallowed State's Exhibit 10 as evidence. Appellant contends the information on State's Exhibit 9 reflects the name Daniel Joseph Kelly and a birth date of April 14, 1955, and the information contained on State's Exhibit 10 reflects the name Joseph Daniel Kelly and a birth date of January 14, 1955; that the only matching identifiers were hair and eye color and country of birth. Thus, appellant contends that under Beck v. State, 719 S.W.2d 205 (Tex.Crim.App. 1986) and Griffin, the evidence was "insufficient legal evidence to corroborate the pen packet erroneously admitted to Appellant." Appellant finally contends that without such evidence, "the jury would not have considered a prior pen trip for Driving While Intoxicated when assessing the punishment Appellant was to receive." The State responds that State's Exhibits 9 and 10 were properly admitted into evidence because the State sufficiently linked the penitentiary packet to appellant. Analysis
We have before us State's Exhibits 9 and 10. State's Exhibit 9 is a copy of the Grayson County Sheriff's Office Inmate Information Sheet for the primary offense in this case. A portion of that exhibit contains information obtained from appellant when he was booked into jail for the offense in this case. Another portion of that exhibit contains information from the arresting officer, Krebbs, showing probable cause for appellant's arrest. Most of the probable cause information was already before the jury from Krebbs' testimony during the guilt-innocence phase of trial and re-offered by the State on punishment. We have compared the identifiers of the defendant on State's Exhibit 9 with the identifiers of the defendant on State's Exhibit 10, a properly certified penitentiary packet containing a copy of a photograph, a fingerprint sheet, and judgment on plea of guilty in cause number F87-80055-IT for a DWI 3rd committed on March 23, 1987, by a Daniel Joseph Kelly, Jr. We conclude the trial court did not abuse its discretion by concluding State's Exhibit 10 was sufficiently linked to appellant to be admissible before the jury. The jury had the exhibits in the jury room and could see for itself whether it was convinced by the identifiers that the Daniel Joseph Kelly on trial was the same Daniel Joseph Kelly who had been convicted in 1987 of DWI. No error has been shown. Moreover, even if the admission of State's Exhibits 9 and 10 were to be deemed error, we conclude it would be harmless error. The jury had before it appellant's two prior misdemeanor convictions in two different counties and State's Exhibits 7 and 8 reflecting appellant had previously been convicted in 1992 of misdemeanor DWI as a lesser-included offense of a charged felony DWI. Concluding no reversible error is shown, we affirm. SUE LAGARDE, JUSTICE, ASSIGNED.