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Date: 12-08-2016

Case Style:

Jose Antonio Garcia v. The State of Texas

Case Number: 01-15-00030-CR

Judge: Michael C. Massengale

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Brent Chapell
William J. Delmore III

Defendant's Attorney:





Judith Shields



Description: Jose Antonio Garcia was charged with aggravated kidnapping in connection
with an incident that occurred at a convenience store in Montgomery County,
Texas. The complainant, M.J., testified that one night while she was working the
graveyard shift, Garcia came into the store to buy a fountain drink. After he bought
the drink and left, he returned to the store, walked up to M.J., and said, “if you
want to survive this, come with me.” He then grabbed M.J. by the hair and took her
outside to his truck. Once at his truck, he forced M.J. into the truck and said that he
wanted her to perform a sexual act on him. It was at this point that M.J. saw him
holding a pocketknife.


3
Garcia began backing his truck out of the parking lot. Before they left the
parking lot, M.J. jumped out, ran into the store, locked herself in the bathroom, and
called the police. She identified Garcia as the man who grabbed her and forced her
out of the store.
During their investigation into the incident, the police relied upon video
surveillance footage from the convenience store. They used the footage to track
down Garcia and the truck he drove that night. Additionally, police showed Garcia
still images from the video while questioning him, and he admitted that he was the
person shown in the video. The footage also corroborated M.J.’s trial testimony
that Garcia grabbed her by the hair and took her outside the store.
A grand jury indicted Garcia for aggravated kidnapping. Following the
indictment, but prior to trial, the court appointed defense counsel. After the
appointment of counsel, Garcia indicated his desire to represent himself. The court
held a Faretta hearing, gave him all of the required admonishments, and found that
he had invoked his right to self-representation and dismissed counsel. Sometime
after the hearing, however, the court appointed new defense counsel.
At the conclusion of the guilt-innocence phase, Garcia requested that the
court include a lesser-included offense instruction on kidnapping in the jury
charge. The court refused the request and only included an instruction on


4
aggravated kidnapping in the charge. The jury found Garcia guilty of aggravated
kidnapping.
During the punishment phase, the State alleged three enhancements. These
enhancements included allegations that Garcia had committed three previous
offenses in California. To prove that Garcia had committed these offenses, the
State offered exhibits that contained information regarding the offenses.
At sentencing, the jury found the allegations of the three enhancement
paragraphs to be true and sentenced him to life in prison. The court accepted and
entered judgment on the jury’s findings. Within this judgment, the court assessed
attorney’s fees against Garcia and included an affirmative deadly-weapon finding.
Garcia appealed.
Analysis
Garcia contends that: (1) the trial court erred by appointing counsel despite
his desire to represent himself; (2) legally insufficient evidence supported his
conviction; (3) the trial court erred by refusing a lesser-included offense
instruction; (4) the trial court erred by admitting certain exhibits during the
punishment-phase of trial; (5) legally insufficient evidence supported the jury’s
findings of true to the State’s alleged enhancements; and (6) the trial court erred by
requiring him to pay his court-appointed attorney’s fees.


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I. Right to self-representation
In his first issue, Garcia argues that the trial court erred by appointing
counsel to represent him after he had invoked his right to self-representation.
The federal constitution guarantees both the right to counsel and the
corresponding right to self-representation. U.S. CONST. amends. VI & XIV;
Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975); Hathorn v.
State, 848 S.W.2d 101, 122–23 (Tex. Crim. App. 1992); see also TEX. CODE CRIM.
PROC. art. 1.05 (recognizing right of accused to be heard “by himself, or counsel,
or both”). A trial court’s determination whether a defendant has invoked his right
to self-representation is reviewed for an abuse of discretion. See Rodriguez v. State,
491 S.W.3d 18, 28 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
A defendant who initially asserts his right to represent himself, but later
abandons the right by inviting participation by counsel, waives his right of self
representation. See McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S. Ct. 944, 953
(1984); Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986); see
also TEX. CODE CRIM. PROC. art. 1.14. The record must reflect adequately that a
defendant waived his right to self-representation after asserting it, but proof of
waiver of self-representation is not subject to as stringent a standard as proof of
waiver of the right to counsel. Funderburg, 717 S.W.2d at 642 (citing Brown v.
Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (en banc)). A record sufficiently


6
demonstrates that a defendant waived his right to proceed pro se if it reasonably
appears to the court that the defendant abandoned his initial request to represent
himself. Id. at 642.
In this case, the trial court initially appointed counsel to represent Garcia.
Garcia then indicated his desire to represent himself, and the court held a Faretta
hearing. At the hearing, the court gave Garcia the required admonishments, and he
clearly and unequivocally invoked his right to self-representation. The court then
released the court-appointed counsel. Garcia filed several pro se motions after his
first attorney’s release. After several months of allowing him to represent himself,
the court again appointed counsel to represent Garcia. From that point on, all of
Garcia’s interaction with the court took place through his appointed counsel. The
record includes a discovery order, signed after the second appointment of counsel,
which stated that Garcia “requested and was appointed counsel in this matter” and
ordered the jail to transfer previously disclosed discovery responses to the newly
appointed counsel. The record is otherwise silent as to why the court appointed
another lawyer. Nothing in the record indicates that Garcia objected to the
appointment of new counsel. He did not object when the court later granted a
motion to appoint co-counsel to assist in his defense.
Based on his actions as indicated by the record, the court reasonably could
have concluded that Garcia had abandoned his initial request to represent himself.


7
Id. Therefore, the trial court did not abuse its discretion by appointing counsel. We
overrule Garcia’s first issue.
II. Legal sufficiency of evidence to support conviction
Garcia contends that the State presented legally insufficient evidence to
support his conviction for aggravated kidnapping because there was no evidence to
support the aggravating factors. He argues that no evidence was presented to prove
that the knife used during the kidnapping was a deadly weapon. He also asserts that
the offense of kidnapping was complete prior to any aggravating circumstances—
either statements indicating an intent to inflict bodily injury on the complainant or
to violate or abuse her sexually, and prior to the complainant seeing him holding a
knife.
In reviewing the legal sufficiency of the evidence to support a criminal
conviction, a court of appeals will determine whether, after viewing the evidence
in the light most favorable to the verdict, the trier of fact was rationally justified in
finding the essential elements of the crime beyond a reasonable doubt. Brooks v.
State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010). We measure the evidence
“by the elements of the offense as defined by the hypothetically correct jury charge
for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the
exclusive judge of the facts, the jury may believe or disbelieve all or any part of a
witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.


8
1991). We presume that the factfinder resolved any conflicting inferences in favor
of the verdict, and we defer to that resolution. See Jackson, 443 U.S. at 326, 99 S.
Ct. at 2793. On appeal we may not re-evaluate the weight and credibility of the
record evidence and thereby substitute our own judgment for that of the factfinder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Kidnapping is a continuous, ongoing event in which a person “abducts”
another person. TEX. PENAL CODE § 20.03(a); see Curry v. State, 30 S.W.3d 394,
406 (Tex. Crim. App. 2000). An abduction for these purposes includes restraining
a person with intent to prevent her liberation, by using or threatening to use deadly
force. See TEX. PENAL CODE § 20.01(2); Laster v. State, 275 S.W.3d 512, 521
(Tex. Crim. App. 2009). A person commits the offense of aggravated kidnapping if
he “intentionally or knowingly abducts another person” under aggravating
circumstances, which include intending to “inflict bodily injury” on the kidnapped
person or to “violate or abuse him sexually,” TEX. PENAL CODE § 20.04(a)(4), or
using or exhibiting a deadly weapon during the commission of the offense, id. §
20.04(b).
In this case, the State alleged two different theories of aggravated
kidnapping: that Garcia intended to inflict bodily injury on M.J. or “violate or
abuse” her sexually and that he exhibited a deadly weapon. The trial court
submitted these theories as alleged in the indictment. If alternative theories of the


9
same offense are submitted, the jury may return a general verdict as long as the
evidence is sufficient to support a finding under any of the theories submitted. See
Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004); Holford v. State,
177 S.W.3d 454, 462 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Therefore,
the State only had to produce legally sufficient evidence of one of its theories to
support the jury’s general verdict that Garcia committed aggravated kidnapping.
See Holford, 177 S.W.3d at 462.
Because kidnapping is a continuous, ongoing event, if the actor develops the
specific intent to commit any of the aggravating factors during the course of
restraining the person, the actor can be found guilty of aggravated kidnapping. See
Curry, 30 S.W.3d at 406; Weaver v. State, 657 S.W.2d 148, 150 (Tex. Crim. App.
1983).
At trial, M.J. testified that Garcia came into the store, grabbed her by the
hair, and forced her outside to his truck. When he grabbed her, he said, “if you
want to survive this, come with me.” Once at his truck, he told her that he wanted
her to perform a sex act. At this point, M.J. saw that Garcia had a knife in his hand.
The State corroborated portions of M.J.’s testimony with video from the store.
The jury reasonably could have found that Garcia intended to abduct M.J.
Abduction includes restraining a person with intent to prevent her liberation by
using or threatening to use deadly force. See TEX. PENAL CODE § 20.01(2)(B).


10
“Restrain” means “to restrict a person’s movements without consent, so as to
interfere substantially with the person’s liberty, by moving the person from one
place to another or by confining the person.” Id. § 20.01(1). The evidence
demonstrated that Garcia restrained M.J. by moving her from the store into his
truck, and that he did so by threatening her life if she did not comply with his
commands. See id. §§ 20.01, 20.04; see also Laster, 275 S.W.3d at 523–24. A
person’s intent can be inferred from his acts, words, and conduct. Kibble v. State,
340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). The jury
could infer from the statements Garcia made while restraining M.J. and the fact
that he grabbed her by the hair that he had the specific intent to inflict bodily injury
on her or violate or abuse her sexually. See Laster, 275 S.W.3d at 523–24 (noting
that bodily injury encompasses even relatively minor physical contact); Phillips v.
State, 597 S.W.2d 929, 936–37 (Tex. Crim. App. [Panel Op.] 1980) (finding that
intent to abuse sexually means intent to commit a non-consensual sex act).
Viewing this evidence in the light most favorable to the prosecution, a
rational jury could have found that the State proved that Garcia abducted M.J. and
did so with the intent to inflict bodily injury or violate or abuse her sexually. See
Laster, 275 S.W.3d at 522–24. Therefore, the State presented legally sufficient
evidence to support this theory of aggravated kidnapping. We overrule Garcia’s
fifth issue.


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III. Lesser-included offense instruction
Garcia contends in his fourth issue that the trial court erred by denying his
request for a jury instruction on the lesser-included offense of kidnapping.
“In a prosecution for an offense with lesser included offenses, the jury may
find the defendant not guilty of the greater offense, but guilty of any lesser
included offense.” TEX. CODE CRIM. PROC. art. 37.08. An offense is a lesser
included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Id. art. 37.09.
We use a two-pronged test to determine whether a defendant is entitled to an
instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.
2011); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). The first
step is a question of law, in which the court compares the elements alleged in the
indictment with the elements of the lesser offense to determine “if the proof


12
necessary to establish the charged offense also includes the lesser offense.”
Cavazos, 382 S.W.3d at 382.
“The second step of the lesser-included-offense analysis is to determine if
there is some evidence from which a rational jury could acquit the defendant of the
greater offense while convicting him of the lesser-included offense.” Sweed, 351
S.W.3d at 68. Because this fact question depends on the evidence presented at trial,
we review the entire record in making this determination on appeal. See id.;
Hayward v. State, 158 S.W.3d 476, 478–79 (Tex. Crim. App. 2005). Anything
more than a scintilla of evidence may be sufficient to entitle a defendant to a jury
instruction on a lesser-included offense. Hall, 225 S.W.3d at 536. “Although this
threshold showing is low, ‘it is not enough that the jury may disbelieve crucial
evidence pertaining to the greater offense, but rather, there must be some evidence
directly germane to the lesser-included offense for the finder of fact to consider
before an instruction on a lesser-included offense is warranted.’” Sweed, 351
S.W.3d at 67–68 (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App.
1997)). “[T]he standard may be satisfied if some evidence refutes or negates other
evidence establishing the greater offense or if the evidence presented is subject to
different interpretations.” Id. at 68.
The indictment in this case alleged that Garcia unlawfully, intentionally, and
knowingly abducted M.J., by “grabbing” her with his hands and “threatening to use


13
deadly force,” with the intent to inflict bodily injury on her and violate and abuse
her sexually. Alternatively, the indictment also alleged that Garcia unlawfully,
intentionally, and knowingly abducted M.J. by grabbing her with his hands,
threatening to use deadly force, and using and exhibiting “a deadly weapon, to-wit:
a knife, during the commission of the offense.”
A person commits the offense of kidnapping if he “intentionally or
knowingly abducts another person.” See TEX. PENAL CODE § 20.03. Because
kidnapping is “established by proof of the same or less than all the facts” necessary
to prove aggravated kidnapping, see TEX. CODE CRIM. PROC. art. 37.09(1), and “the
proof necessary to establish the charged offense also includes the lesser offense,”
Cavazos, 382 S.W.3d at 382, kidnapping is a lesser-included offense of aggravated
kidnapping. Compare TEX. PENAL CODE § 20.03 (kidnapping), with id. § 20.04
(aggravated kidnapping). Accordingly, we hold that the first step of our inquiry
into whether a jury instruction was warranted is satisfied. See TEX. CODE CRIM.
PROC. art. 37.08; Cavazos, 382 S.W.3d at 382.
We next consider whether there was a scintilla of evidence that Garcia is
guilty, if at all, of only kidnapping and not aggravated kidnapping. See Sweed, 351
S.W.3d at 67-68. As with his legal sufficiency challenge, Garcia argues that he had
completed the offense of kidnapping prior to any evidence arising that would
support a finding that he had the intent to inflict bodily injury on M.J. or to violate


14
or abuse her sexually. He points to this as one reason why he was entitled to a
lesser-included offense instruction. He also argues that the State presented no
evidence that he used or exhibited a deadly weapon during the kidnapping.
In Sweed v. State, the Court of Criminal Appeals reversed a conviction for
aggravated robbery finding that the appellant had been entitled to a lesser-included
offense instruction on theft. Id. at 69–70. In that case, the evidence indicated that
the appellant stole a nail gun and fled the scene of the theft into a nearby
apartment. Id. at 69. He remained in the apartment for five to twenty minutes and
changed clothes. Id. He then left the building and talked to a group of people in a
nearby complex for another five to ten minutes. Id. The appellant then spotted
another man and pulled a knife on him. Id. Due to the passage of time between the
theft of the nail gun and the use of the knife, the Court found that there was a fact
question about whether the appellant used the knife in the course of committing the
theft, an element necessary for a finding of aggravated robbery. Id. Because of this
fact question, the Court concluded that the jury rationally could have found that the
appellant no longer was fleeing from the theft when he pulled a knife, and
therefore committed only theft and not aggravated robbery. Id. The issue was not
simply a case of the jury disbelieving certain evidence admitted at trial. Id.
In this case, to be entitled to a lesser-included offense instruction, Garcia had
to point to evidence that created an issue about whether only kidnapping may have


15
occurred, and not aggravated kidnapping. See id. But the nature of the evidence
presented in this case was such that the only way Garcia could have been guilty of
only kidnapping was if the jury simply disbelieved the evidence establishing
aggravating circumstances. If there had been evidence that negated, refuted, or
called into question M.J.’s testimony, Garcia may have been entitled to an
instruction on kidnapping. See Sweed, 351 S.W.3d at 68–69. But, unlike in Sweed,
the only way that the jury rationally could have found that Garcia committed only
the lesser offense is if they did not believe parts of M.J.’s testimony. It is not
sufficient that the jury may have disbelieved crucial evidence pertaining to the
greater offense. Id. at 68. Therefore, Garcia was not entitled to a lesser-included
offense instruction.
In addition, because the State alleged and submitted alternative theories, it
only had to prove one of these theories. See Martinez, 129 S.W.3d at 103;
Kitchens, 823 S.W.2d at 258. Therefore, even if Garcia were correct that there was
no evidence he used or exhibited a deadly weapon, which would have entitled him
to an instruction on kidnapping, he is not entitled to such an instruction in this case
because the State proved he intended to inflict bodily injury on M.J. or violate or
abuse her sexually, and no evidence negates or refutes this theory. Therefore, the
trial court did not err by refusing to include a jury instruction on the lesser
included offense of kidnapping. We overrule Garcia’s fourth issue.


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IV. Admissibility and legal sufficiency of habitual-offender evidence
In his second and third issues, Garcia challenges the jury’s findings
regarding habitual-offender enhancements. See TEX. PENAL CODE § 12.42. The
State alleged three enhancements based on felony convictions in California that
included: (1) a 1981 conviction for assault with intent to commit rape; (2) a 1983
conviction for robbery with a firearm; and (3) a 1983 conviction for assault with a
deadly weapon.
Garcia argues in his second issue that the trial court erred by admitting
certain exhibits that the State offered during the punishment phase of the trial. He
objected to the admission of these exhibits under Rule 403, asserting that the jury
is “not going to know what this is and take them as being something they are not.”
In his third issue, Garcia contends that the State presented insufficient
evidence to allow the jury to find beyond a reasonable doubt that he had previous
convictions or that he was the person convicted.
A. Admission of exhibits
We review a trial court’s decision to admit evidence during the punishment
phase of an extraneous offense or bad act under an abuse-of-discretion standard.
Lamb v. State, 186 S.W.3d 136, 141 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). We will not reverse the trial court’s ruling unless it falls outside the zone of
reasonable disagreement. Id.


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Code of Criminal Procedure article 37.07 governs the admissibility of
evidence at the punishment phase of a trial. Henderson v. State, 29 S.W.3d 616,
626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). As relevant to this appeal, it
provides:
. . . evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). The trial court has wide discretion in
determining the admissibility of evidence presented at the punishment phase.
Lamb, 186 S.W.3d at 141. “[R]elevance during the punishment phase of a
noncapital trial is determined by what is helpful to the jury.” Erazo v. State, 144
S.W.3d 487, 491 (Tex. Crim. App. 2004); Garcia v. State, 239 S.W.3d 862, 865
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (relevance during the punishment
phase “is more a matter of policy than an application of Rule of Evidence 401; it
fundamentally consists of what would be helpful to the jury in determining the
appropriate punishment”).


18
Although the trial court has wide latitude in determining the admissibility of
punishment-phase evidence, the evidence must still satisfy Texas Rule of Evidence
403. Lamb, 186 S.W.3d at 143. Evidence may be excluded pursuant to Rule 403 if
“its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403; Lamb,
186 S.W.3d at 143. Thus, relevant evidence that is otherwise admissible under
article 37.07 is inadmissible if it does not satisfy Rule 403. Lamb, 186 S.W.3d at
144. When a party objects under Rule 403, a reviewing court looks at several
factors including: “(1) the probative value of the evidence; (2) the potential to
impress the jury in some irrational, yet indelible way; (3) the time needed to
develop the evidence; and (4) the proponent’s need for the evidence.” Erazo, 144
S.W.3d at 489.
In this case, the probative value of the challenged exhibits was high. See id.
During punishment, the State attempted to prove that Garcia previously had been
convicted of offenses in California, and it offered the exhibits for this purpose. “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, 921–22
(Tex. Crim. App. 2007). Although, as Garcia contends, the general method of


19
establishing a prior conviction is through the use of a certified judgment, no
particular manner of proof or specific words are required to establish either
element. Id. at 922.
The challenged exhibits included certified public records from the California
Department of Corrections, a certified sex offender registration form, and a
certified inmate identification sheet. Exhibit 57 consisted of California Department
of Corrections “movement history” information sheets and “commitment data”
printouts. Exhibits 58 and 59, the sex offender registration form and inmate
identification sheet, included fingerprint records and information regarding a 1981
conviction for assault. Exhibit 59 also contained a unique inmate identification
number that matched the identification number found in the movement history and
commitment data.
Exhibit 62 included an indictment and abstract of judgment from a
California conviction for robbery and assault with a deadly weapon. Exhibits 62A
and 62B accompanied exhibit 62 and included fingerprint records of the person
described in exhibit 62. A fingerprint expert testified that he compared the
fingerprints included with the California records to the fingerprints of Garcia taken
immediately prior to trial, and he concluded that they matched. He also compared
the cause numbers from the movement history and commitment data printouts to
the fingerprint records and concluded that they also matched.


20
These exhibits were highly probative in proving that the allegations of the
enhancements were true because they tended to prove that a person with the same
name and fingerprints as Garcia was convicted in California for the offenses
alleged in the enhancements.
It took minimal time for the State to authenticate and present the exhibits.
The exhibits were certified public records, and the fingerprint expert spent little
time discussing his opinions.
With respect to the potential prejudice of the exhibits, Garcia argues that
portions of the documents should have been redacted to conceal discussion of other
irrelevant extraneous offenses. Any potential prejudice caused by irrelevant
extraneous offenses mentioned in the documents was mitigated by the judge’s
instruction that the jury had to find that the State proved beyond a reasonable doubt
that Garcia had committed the offenses before they could consider them. We
generally presume the jury follows the trial court’s instruction. Rios v. State, 263
S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d, untimely filed).
Garcia also argues that the documents were illegible and that they would
likely confuse the jury. The potential for jury confusion was limited as the State
introduced the exhibits with the assistance of an expert. Further, all of the
documents were titled and a jury could clearly determine what they were. Thus,


21
any potential prejudice to Garcia as a result of the court’s admission of the exhibits
was minimal.
We hold that the trial court reasonably could have concluded that the
exhibits were more probative than prejudicial, and the trial court acted within its
discretion by admitting them into evidence. See Erazo, 144 S.W.3d at 489;
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). We overrule
Garcia’s second issue.
B. Sufficiency of enhancement evidence
Garcia contends that the State presented legally insufficient evidence to
prove the enhancements alleged in the indictment. To establish that he had been
convicted of the alleged prior offenses, the State had to prove beyond a reasonable
doubt that the prior convictions existed, and that Garcia was linked to those
convictions. See Flowers, 220 S.W.3d at 921–22.
When reviewing the legal sufficiency of the punishment-phase evidence, we
view the evidence in the light most favorable to the outcome and determine
whether any rational trier of fact could have believed beyond a reasonable doubt
that Garcia was the person who was convicted of the three prior offenses alleged in
the indictment. See Barnes v. State, 876 S.W.2d 316, 322 (Tex. Crim. App. 1994);
see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The trier of fact is the sole
judge of the weight and credibility of the evidence. See Lancon v. State, 253


22
S.W.3d 699, 707 (Tex. Crim. App. 2008). “We do not resolve any conflict of fact,
weigh any evidence, or evaluate the credibility of any witnesses, as this is the
function of the trier of fact.” Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d); see Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999).
The State offered exhibits 57, 58, 59, 62, 62A, and 62B, as well as testimony
from a fingerprint expert and a recorded prison phone call, in order to prove the
alleged enhancements. The State used exhibits 57, 58, and 59 to prove the
enhancement alleging a 1981 California conviction for assault with intent to
commit rape, while using the remaining exhibits to prove the other enhancements
alleging two 1983 California convictions.
With respect to the 1981 assault conviction, Garcia argues that the
documents contained in exhibit 57 were analogous to those offered in Blank v.
State, 172 S.W.3d 673 (Tex. App.—San Antonio 2005, no pet.), which were found
insufficient to support an enhancement alleging a previous DWI conviction. In
Blank, the State relied upon a computer printout entitled “Case Synopsis,” which it
contended was a judgment. Blank, 172 S.W.3d at 675. The document indicated that
the defendant was charged with the offense of driving while intoxicated, but it did
not indicate whether he was convicted of the offense. Id. Further, there was no
evidence that the synopsis was “a writing authorized by law to be recorded or


23
filed.” Id. Thus, the court found that the case synopsis did not represent a judgment
of conviction as the State contended, and since no other evidence was admitted to
support the enhancement, the evidence was insufficient to support the finding of
true to the enhancement. Id.
The Court of Criminal Appeals discussed the Blank holding in Flowers v.
State, 220 S.W.3d 919 (Tex. Crim. App. 2007). It held that the fact of a prior
conviction need not be established in any particular manner or with any specific
document. Flowers, 220 S.W.3d at 922. In distinguishing its holding from Blank,
the Court explained that the important issue is not whether the evidence offered to
prove an enhancement “represents a judgment of conviction or its functional
equivalent” under Texas Code of Criminal Procedure article 42.01, but “whether a
reasonable trier of fact could view” the evidence “and find beyond a reasonable
doubt that” the conviction existed and the appellant is linked to the conviction. Id.
at 924. The Court thus held that a certified computer printout from the Dallas
County clerk setting out a conviction for DWI and the appellant’s driver’s license
record with matching information concerning the DWI conviction was sufficient to
support a jury finding of true to an enhancement alleging a previous DWI
conviction. Id. at 924–25.
In this case, exhibit 57 was a certified public record from the California
Department of Corrections that consisted of an inmate movement history and


24
commitment data printouts. Exhibit 58 was a certified copy of a sex offender
registration form that discussed the 1981 conviction alleged in the enhancement.
Exhibit 59 was a certified copy of a prison identification sheet that also discussed
the 1981 conviction. Both exhibits 58 and 59 included the name Jose Antonio
Garcia and Garcia’s birthdate. Exhibit 59 also contained a unique prison
identification number that matched the number assigned to the inmate in exhibit
57. Further, exhibits 58 and 59 included fingerprint cards that the State’s
fingerprint expert matched to each other and to fingerprints taken from Garcia
immediately prior to trial. Based on these exhibits and the testimony of the
fingerprint expert, a rational jury could have found that the State proved beyond a
reasonable doubt that the 1981 conviction for assault with intent to commit rape
existed, and that Garcia was linked to that conviction. See Flowers, 220 S.W.3d at
925.
The exhibits offered to prove the other alleged enhancements were certified
public records from the California Department of Corrections that included a set of
pleadings and abstracts of judgment related to the two 1983 California convictions.
These exhibits included identifying information that matched Garcia and
fingerprint cards. The State’s fingerprint expert again matched these fingerprints to
the fingerprints taken from Garcia immediately prior to trial.


25
In addition to all of these records, the State played a recording of a phone
call that Garcia made while he was in jail. Throughout this recording, Garcia talked
about attempting to get a pardon from the Governor of California for the
convictions he had in California during the 1980s.
The documents and audio recording constituted evidence that the
convictions alleged in the enhancements existed. Further, the fingerprint expert
linked Garcia to the convictions by comparing the fingerprints found in the
California records to his fingerprints taken immediately prior to trial.
Viewing the evidence in the light most favorable to the outcome, a rational
jury could have found beyond a reasonable doubt that the all of the California
convictions existed and that Garcia was linked to those convictions. Id. We
overrule Garcia’s third issue.
V. Attorney’s fees
In his sixth issue, Garcia contends that the trial court erred by assessing
attorney’s fees against him for his court-appointed counsel because he was indigent
at the outset of the case and the State presented no evidence that his financial
circumstances had changed. The State concedes that the trial court’s judgment
should be modified to delete the imposition of attorney’s fees because the trial
court failed to make the requisite determination regarding Garcia’s financial
capabilities.


26
Counsel appointed to represent a defendant in a criminal proceeding shall be
paid a reasonable attorney’s fee for performing certain services. TEX. CODE CRIM.
PROC. art. 26.05(a). The Code of Criminal Procedure provides:
If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges, or, if convicted, as court costs the amount that it finds the defendant is able to pay.
Id. art. 26.05(g). A defendant who is determined by the trial court to be indigent is
presumed to remain indigent for the remainder of the proceedings unless a material
change in the defendant’s financial circumstances occurs. Id. art. 26.04(p). “[T]he
defendant’s financial resources and ability to pay are explicit critical elements in
the trial court’s determination of the propriety of ordering reimbursement of costs
and fees.” Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Thus, in
the absence of any indication in the record that the defendant’s financial status has
in fact changed, the evidence will not support the imposition of attorney’s fees.
Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013). When a trial court
fails to find that the defendant’s financial circumstances changed after initially
finding the defendant to be indigent, the record is insufficient to support the order
to pay attorney’s fees. See id.; Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—
Tyler 2013, no pet.).


27
Here, there is no evidence in the record indicating that Garcia’s financial
circumstances materially changed after the trial court initially determined that he
was indigent and appointed counsel to represent him. See TEX. CODE CRIM. PROC.
art. 26.04(p); Johnson, 405 S.W.3d at 355. After the trial court entered judgment,
the trial court appointed Garcia counsel for an appeal and granted his motion for a
free reporter’s record. The trial court did not make a finding in the judgment that
appellant had financial resources enabling him to offset, in whole or in part, the
costs of the legal services provided to him. See TEX. CODE CRIM. PROC.
art. 26.05(g); Johnson, 405 S.W.3d at 355; see also Wiley, 410 S.W.3d at 317;
Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013).
We conclude that the evidence is insufficient to support the order requiring
Garcia to pay the attorney’s fees for his court-appointed defense counsel. See
Cates, 402 S.W.3d at 251–52; Johnson, 405 S.W.3d at 355. We therefore modify
the judgment of the trial court to delete the assessment of attorney’s fees against
him. See TEX. R. APP. P. 43.2(b) (allowing appellate court to modify trial court
judgment and affirm as modified); see also French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992).
VI. Deadly-weapon finding
Although not argued by Garcia, the State’s brief suggested an error on the
face of the judgment related to the trial court’s affirmative deadly-weapon finding.


28
The State asserts that the trial court could not make a determination regarding
Garcia’s alleged use of a deadly weapon based on the jury’s general guilty verdict,
and therefore the judgment should be modified.
When the jury is the trier of fact, an affirmative finding of a deadly weapon
properly is made by the trial court when the record shows the jury has: (1) found
the defendant guilty of the offense as alleged in the indictment and the deadly
weapon has been specifically pleaded as such in the indictment; (2) found the
defendant guilty of the offense as alleged in the indictment and the weapon pleaded
is per se a deadly weapon; or (3) affirmatively answered a special issue on deadly
weapon use. See Lafleur v. State, 106 S.W.3d 91, 99 (Tex. Crim. App. 2003); see
also Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985); Johnson v. State,
6 S.W.3d 709, 713–14 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
The indictment in this case alleged two alternative theories upon which
Garcia could have been found guilty of aggravated kidnapping. One theory alleged
that he used or exhibited a deadly weapon, and the other did not. The jury returned
a verdict that found Garcia guilty of aggravated kidnapping “as charged in the
indictment.” Based on this general verdict, the trial court could not determine upon
which theory the jury returned a guilty verdict. Therefore, the trial court erred by
entering an affirmative finding regarding Garcia’s use of a deadly weapon.


29
An appellate court has the authority to reform a judgment to make the record
speak the truth when the matter has been called to its attention by any source.
French, 830 S.W.2d at 609 (holding that appellate court could reform judgment to
reflect jury’s affirmative deadly-weapon finding); see also TEX. R. APP. P. 43.2(b)
(allowing appellate court to modify trial court judgment and affirm as modified).
“This power [to modify] includes adding a deadly-weapon finding to a judgment
that erroneously omitted a factfinder’s deadly-weapon finding and deleting a
deadly-weapon finding that was erroneously entered in the judgment without a
factfinder’s first having made the finding.” Cobb v. State, 95 S.W.3d 664, 668
(Tex. App.—Houston [1st Dist.] 2002, no pet.); see TEX. CODE CRIM. PROC. art.
42.12, § 3g(a)(2).
Because the trial court erred by entering an affirmative finding as to Garcia’s
use of a deadly weapon, the trial court’s judgment should be modified to reflect
that no finding was made as to whether a deadly weapon was used during the
commission of this offense.

Outcome:

The judgment of the trial court is affirmed as modified.

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