Joey Harper v. State of Texas

Opinion issued December 21, 2023




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-22-00249-CR
                            NO. 01-22-00250-CR
                          ———————————
                         JOEY HARPER, Appellant
                                      V.
                        STATE OF TEXAS, Appellee


                  On Appeal from the 248th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1635582 & 1635583


                        MEMORANDUM OPINION

     Appellant Joey Harper appeals his convictions for aggravated assault with a

deadly weapon and felon in possession of a weapon. See TEX. PENAL CODE

§§ 22.02(a)(2), 46.04(a). A jury found him guilty of both crimes. After Harper
pleaded not true to a sentencing enhancement, the jury found it true and sentenced

him to 24.5 and 10 years’ imprisonment, respectively. The trial court ordered the

sentences to run concurrently. On appeal, Harper contends that the evidence was

insufficient to support the jury’s finding regarding the sentencing enhancement.

We affirm.

                                   Background

      This case concerns a shooting in the parking lot of a 24 Hour Fitness.

Harper, who uses a wheelchair after the loss of his legs, was a member of the gym.

On Father’s Day in 2019, Harper went to the gym’s childcare and attempted to take

a young girl away with him. At the time, he was on the phone with the girl’s

mother. He told the employee monitoring the childcare area that the girl’s mother

gave permission for him to retrieve her daughter. The childcare worker would not

allow him to take the girl. She told him that the gym’s policy is that the person

who brings a child must also pick the child up, and she enforced the policy. While

she was speaking with Harper, the child’s father, Nehemias Olmedo, returned to

get her. Olmedo and his daughter left the childcare area and left the gym.

      Olmedo and his daughter went to their car in the parking lot. After he

secured his daughter in her carseat, Olmedo turned around and saw Harper

pointing a gun at him. Olmedo lunged at Harper to get the gun away from him. At

that point, Olmedo realized that Harper had shot him because he had no feeling in


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his leg. Olmedo fell to the ground, and Harper fell to the ground and out of his

wheelchair. Harper got back in his wheelchair and fled. He was later arrested a few

blocks away. Olmedo was transported to the hospital where surgeons discovered

two bullets in his body.

      During the guilt-innocence phase of trial, the trial court admitted into

evidence a certified judgment and sentence naming Joey Harper and convicting

him of stalking. See TEX. PENAL CODE § 42.072. The document included the date

of the offense and conviction, cause number, height, weight, tattoos, hair color, and

eye color. It also contained facial and side profile photographs. The photographs

showed a tattoo on the left cheek. Among other witnesses, the jury heard from the

childcare worker at the gym. She stated that she regularly saw Harper at the gym

and was familiar with him. The childcare worker viewed the exhibit and identified

the person in the photographs as Harper. She also identified Harper in the

courtroom.

      The jury found Harper guilty of felon in possession of a weapon and

aggravated assault with a deadly weapon. During the punishment phase of trial,

Harper called Greg Gardner to testify. Gardner testified that Harper had been to

prison for stalking and said he had personal knowledge of the facts of the case. He

also testified that he met Harper in approximately 2009 and that they met after

Harper had been to prison for stalking. The State presented the same judgment and


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sentence for the same stalking conviction and alleged it as an enhancement to the

aggravated assault with a deadly weapon conviction. The jury found the

enhancement true.

       Sufficiency of the Evidence to Support Enhancement Paragraph

      In one issue on appeal, Harper contends that the evidence is legally

insufficient to link him to the prior conviction for stalking that was used to enhance

his punishment. We disagree.

A.    Standard of Review

      Before a prior conviction may properly be used to enhance a defendant’s

punishment, the State must prove beyond a reasonable doubt that (1) a prior

conviction exists, and (2) the defendant is linked to that conviction. Henry v. State,

 (Tex. Crim. App. 2016); Flowers v. State, 

 (Tex. Crim. App. 2007). There is no specific document or mode of proof

required to prove either element. Henry, 

; Flowers, 

. The Court of Criminal Appeals has stated:

      There 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. 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 . . . documentary proof (such as a judgment) that contains
      sufficient information to establish both the existence of a prior
      conviction and the defendant’s identity as the person convicted. Just
      as there is more than one way to skin a cat, there is more than one way
      to prove a prior conviction.

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Flowers, 220 S.W.3d at 921–22. “Any type of evidence, documentary or

testimonial, might suffice” to prove a conviction. 

.

      The State has the burden to prove the link between the previous conviction

and defendant by putting forth independent evidence showing that the defendant is

the same person named in the previous conviction. See Beck v. State, 

 (Tex. Crim. App. 1986); see also Henry, 

. Acceptable

evidence includes admitting certified copies of a judgment and sentence and

authenticated copies of Texas Department of Corrections records, including

fingerprints, (commonly known as a “pen packet”) that is supported by expert

testimony identifying the prints as identical to known prints of the defendant. See

Paschall v. State, 

, 174–75 (Tex. App.—Fort Worth 2009, pet.

ref’d). While that may be the preferred and most convenient way to establish a

prior conviction and link it to the defendant, the State may prove these elements in

several different ways, including the defendant’s admission or stipulation or

testimony by a person who was present when the defendant was convicted of the

specified crime who can identify the defendant as that person. Henry, 

. When the accused is present in court, the factfinder may compare his

appearance with documentary proof of the conviction that contains photographs or

a detailed physical description of the named person. Flowers, 

.




                                          5
      Regardless of the type of evidentiary puzzle pieces the State offers to prove

the existence of a prior conviction and its link to a defendant, the factfinder

determines if the pieces fit together sufficiently to complete the puzzle. Flowers,

; see also Henry, 

. The trier of fact must

consider the evidence as a whole, as each piece of evidence may provide little

meaning if considered in isolation. Henry, 

. The factfinder looks

at the totality of evidence admitted concerning the prior conviction to determine

(1) whether there was a prior conviction, and (2) whether the defendant was the

person convicted. Flowers, 

; see also Henry, 

.

“If these two elements can be found beyond a reasonable doubt, then the various

pieces used to complete the puzzle are necessarily legally sufficient to prove a

prior conviction.” Flowers, 

.

      In reviewing the legal sufficiency of the evidence presented at trial, a

reviewing court must view all the evidence in the light most favorable to the State.

Villareal v. State, 

 (Tex. Crim. App. 2009). The evidence is

legally sufficient if based on “the totality of the evidence,” the trier of fact could

determine beyond a reasonable doubt that there was a previous conviction and that

the defendant was the one convicted. Flowers, 

.




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B.    Analysis

      On appeal, Harper contends that the State did not offer sufficient proof of his

identity to link him to the stalking conviction because a fingerprint examiner did

not testify that the fingerprints admitted in the pen packet belong to Harper. He

also alleges that the pen packet contained only his name as an identifying factor.

We disagree.

      The State alleged in its indictment for aggravated assault that Harper had a

prior felony conviction for stalking from July 19, 2013 in the 180th District Court

of Harris County, Texas in cause number 1334283. The State introduced and the

trial court admitted State’s Exhibit 32, which is a penitentiary packet or “pen

packet.” A pen packet consists of records from the Texas Department of

Corrections or other penal institutions regarding a person’s prior convictions.

State’s Exhibit 32 included a certified copy of a judgment of conviction for

stalking against Joey Harper in cause number 1334283 from the 180th District

Court in Harris County signed on July 19, 2013. The exhibit includes the name,

date of birth, sex, race, hair color, eye color, height, weight, and tattoos of the

person convicted. It describes the tattoos to the left wrist, right forearm, and left

cheek of the person named in the judgment. It also included headshots, taken

straight on and from a profile view. The photographs show a distinct facial tattoo

on the left cheek.


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      During trial, Harper was in the courtroom. The jury could see Harper and

compare his appearance to the photographs in the pen packet. The jury could

observe whether Harper had the same facial tattoos as described and photographed.

The jury could also compare Harper’s appearance to the description of the person

in the pen packet, including name, race, hair color, eye color, age, height, and

weight. See Martin v. State, No. 14-21-00736-CR, 

, at *7 (Tex.

App.—Houston [14th Dist.] Apr. 27, 2023, no pet.) (mem. op.) (finding sufficient

evidence to link defendant to prior conviction based on State ID number, name,

date of birth, and personal descriptors); see also Flowers, 

(finding sufficient evidence to link defendant to prior conviction when trial court

could compare defendant in person with photograph in driver’s license record and

descriptors found in certified copy of judgment); Dorsett v. State, 

 (Tex. Crim. App. 1965) (finding sufficient evidence to link defendant to prior

conviction when jury had opportunity to observe defendant and determine by

comparison with description in the record, including date of birth, race, hair and

eye color, weight, and height, whether defendant was same person previously

convicted).

      Additionally, the childcare worker from the 24 Hour Fitness testified that

she had seen Harper regularly at the gym. She identified him in the courtroom and

identified him as the person in the photographs in the pen packet. Finally, Gardner


                                        8
testified that Harper had been to prison for stalking and that he had been released

by the time they met. While Gardner did not know the exact year that Harper was

incarcerated for stalking, his testimony did not conflict with evidence that Harper

was incarcerated for stalking around 2013, and it fit the puzzle of evidence before

the jury.* See Henry, 

 (stating that witness that testified that

defendant had been convicted of offense but did not provide date of offense was

insufficient to link defendant to prior conviction but could “serve as one piece of

evidence to be viewed in conjunction with all other pieces”).

      The evidence was legally sufficient to show beyond a reasonable doubt that

there was a previous conviction for stalking and that Harper had been convicted.

Flowers, 

.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Peter Kelly
                                               Justice

Panel consists of Justices Kelly, Hightower, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).

*
      Gardner testified that he met Harper in 2009. He also testified that when he met
      Harper, Harper had been released from prison for stalking. When asked if that
      meant he had met Harper later than 2009, he responded affirmatively.
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