James Humberto Silva v. State

Opinion issued September 2, 2004

In The

Court of Appeals

For The

First District of Texas

NOS. 01-03-00718-CR

01-03-00719-CR

JAMES HUMBERTO SILVA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 929,827 & 929,828

MEMORANDUM OPINION

Appellant, James Humberto Silva, was charged in two indictments with

aggravated sexual assault of a child under the age of 14. Each indictment alleged a

prior conviction for aggravated sexual assault of a child. After a jury found appellant

guilty, the trial court found the enhancement allegations to be true and assessed

punishment at confinement for life on each charge. We affirm.

Disqualification of Judge

In point of error one, appellant contends the trial judge, the Honorable Carol

Davies, erred by refusing to disqualify herself after she discovered that she had served

as a prosecuting attorney in the probation revocation proceeding of the case alleged

in the enhancement paragraphs of the indictments.

1. Background

After the conclusion of the guilt/innocence phase of the trial, Judge Davies,

who had presided over the trial, discovered that she had served as a prosecutor in the

case alleged in the enhancement paragraphs of the indictments.

Appellant’s counsel

made no immediate objection, but asked to see whether the jury could reach a verdict.

After the jury found appellant guilty, but before the imposition of punishment,

appellant’s counsel moved for a mistrial and complained about Judge Davies being

the factfinder on the enhancement issue. Judge Davies referred the matter to the

Administrative Judge, the Honorable Debbie Strickland, who assigned Judge William

Harmon to preside over the punishment hearing.

2. Analysis

Appellant contends that the trial court reversibly erred in not disqualifying

herself, pursuant to article 30.01 of the Texas Code of Criminal Procedure, which

provides as follows:

No judge or justice of the peace shall sit in any case where he may be

the party injured, or where he has been of counsel for the State or the

accused, or where the accused or the party injured may be connected

with him by consanguinity or affinity within the third degree, as

determined under Chapter 573, Government Code.

Tex. Code Crim. Proc. Ann. art. 30.001 (Vernon Supp. 2004).

We disagree with appellant’s contention. A trial judge is not disqualified from

sitting in cases when the judge was a prosecutor in a prior case that is alleged for

enhancement of punishment. See Hathorne v. State, 459 S.W.2d 826, 829 (Tex.

Crim. App. 1970), Brown v. State , 108 S.W.3d 904, 907-08 (Tex. App.—Texarkana

2003, pet. ref’d); Bruns v. State , 924 S.W.2d 176, 179 (Tex. App.—San Antonio

1996, no pet.); Madden v. State , 911 S.W.2d 236, 240 (Tex. App.—Waco 1995, pet.

ref’d), O’Dell v. State , 651 S.W.2d 48, 50-51 (Tex. App.—Fort Worth 1983, pet.

ref’d). Furthermore, Judge Harmon, not Judge Davies, presided over the punishment

hearing—the only portion of the trial concerning the enhancement allegations.

Accordingly, we overrule point of error one.

Proof of Conviction Alleged for Enhancement of Punishment

In point of error two, appellant contends the trial court erred by admitting

State’s Exhibit #3—a copy of a judgment revoking appellant’s probation in the

enhancement offense—because the deputy testifying about the exhibit was unable to

match the fingerprint on Exhibit 3 with a current fingerprint from appellant. In points

of error three and four, appellant contends that, absent proof of the judgment revoking

his probation in the enhanced offense, the evidence is legally and factually

insufficient to support the automatic life sentence he received.

1. Background

At trial, the State presented three exhibits to prove up appellant’s prior

conviction. They were as follows:

Exhibit #1

— A fingerprint that had been recently taken from appellant.

Exhibit #2—A certified copy of the judgment in the enhancement

offense (cause no. 319367, styled The State of Texas v. James Humberto

Silva , dated November 10, 1988), which placed appellant on probation

for ten years.

Exhibit #3—A certified copy of the judgment revoking appellant’s

probation in the enhancement offense (cause no. 319367, styled The

State of Texas v. James Humberto Silva , dated January 3, 1991), which

shows that a punishment of “10 yrs TCD probated” was revoked and a

sentence of 7 years’ confinement was imposed.

Joe Noguera, a fingerprint expert with the Harris County Sheriff’s Department,

testified that the fingerprints on Exhibit #1 matched the thumbprint on Exhibit #2.

However, Noguera was not able to match the fingerprints on Exhibit #1 with the

fingerprint on Exhibit #3, because the print on Exhibit #3 was not a good print for

comparison purposes.

Appellant objected that Exhibit #3 could not be admitted because there was “no

valid print on State’s 3 for proper identification.” The trial court overruled

appellant’s objection. We review the trial court’s ruling for an abuse of discretion.

Goff v. State , 931 S.W.2d 537, 553 (Tex. Crim. App. 1996).

2. Analysis

Appellant argues that the State was required to prove that the previous

conviction was a final conviction. See Ex parte Murchison , 560 S.W.2d 654, 656

(Tex. Crim. App. 1978) (holding that probated sentence not a final conviction for

enhancement purposes unless revoked). Appellant further argues that Exhibit #3

cannot be used to meet the State’s burden of proof because of the lack of an

identifiable fingerprint.

We agree that the State was required to prove that the enhancement offense was

a final conviction. See Spiers v. State , 552 S.W.2d 851, 852 (Tex. Crim. App. 1977)

(holding that State bears burden of proving probation revoked before using

conviction resulting in probation to enhance punishment); Fetters v. State , 1 S.W.2d

312, 313 (Tex. Crim. App. 1927) (same).

The issue, thus, is whether the State presented legally and factually sufficient

evidence to show that appellant’s probation was revoked. See Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Zuniga v. State ,

No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004) (factual

sufficiency).

It is uncontested that the State proved that appellant was the same person who

had been convicted of the enhancement offense and sentenced to 10 years’ probation,

by showing that appellant’s fingerprints on Exhibit #1 matched the thumbprint on the

judgment in Exhibit #2. See Beck v. State , 719 S.W.2d 205, 209 (Tex. Crim. App.

1986); Garner v. State , 864 S.W.2d 92, 97 (Tex. App.—Houston [1st Dist.] 1993, pet.

ref’d) (holding that prior conviction alleged for enhancement purposes may be

established by introducing certified or otherwise properly authenticated copies of

judgment and sentence and records of Institutional Division of the Texas Department

of Criminal Justice or county jail that include fingerprints of the accused, supported

by expert testimony identifying fingerprints of the accused with known prints of

accused). Therefore, the only issue us to decide is whether the State was required to

produce a fingerprint on Exhibit #3 in order to prove that appellant’s probation had

been revoked.

Appellant has cited no authority to support his assertion that the State was

required to introduce a fingerprint on the revocation judgment to prove that

appellant’s probation had been revoked. As we stated earlier, the State proved that

appellant is the same person convicted in cause no. 319367, styled The State of Texas

v. James Humberto Silva , of aggravated sexual assault of a child, and that his

punishment was assessed at 10 years’ probation. Exhibit #3, the revocation judgment,

showed the same defendant’s name, cause number, case style, court number, offense

charged, and punishment assessed as did Exhibit #2, the conviction judgment.

Having proved that appellant was the same person convicted in Exhibit #2, the jury

was rationally justified in concluding that Exhibit #3, even absent a fingerprint, was

proof that the punishment imposed in Exhibit #2 had been revoked. See Fetters , 1

S.W.2d at 313 (holding testimony that appellant had been seen in prison admissible

to show probation revoked).

Accordingly, we overrule points of error two, three, and four.

We affirm the judgments of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Bland.

.

Do not publish. Tex. R. App. P. 47.2 ( b).