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Alberty v. State

Court of Appeals of Texas, Sixth District, Texarkana

July 11, 2017


          Submitted: May 1, 2017

         On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 1625217

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Ralph K. Burgess Justice

         Isiaah Alberty pled guilty to the offense of driving while intoxicated (DWI), third or more. After the trial court found Alberty guilty of the offense, a bench trial on punishment resulted in findings of true to the State's enhancement allegations and a sentence of thirty-five years' imprisonment. The trial court's judgment contains an assessment of $750.00 in attorney fees for Alberty's court-appointed counsel, but also contains the statement "Attorney's fees and court costs are waived due to defendant's indigency."

         On appeal, Alberty argues that, during the punishment hearing, the trial court erred in admitting and considering evidence of three prior convictions because they were not sufficiently linked to him. We find that evidence admitted without objection sufficiently linked Alberty to the prior convictions. We further find that the assessment of attorney fees in the amount of $750.00 must be deleted from the judgment. As modified, we affirm the trial court's judgment.

         I. Factual Background

         The State provided notice of its intent to enhance Alberty's punishment on grounds that he had twice been previously convicted of driving while intoxicated, third or more (DWI 3rd).[1] The State's separate enhancement paragraphs alleged that Alberty was finally convicted of DWI 3rd offenses in the Sixth Judicial District Court of Lamar County, Texas, "on the 14th day of February, 1990, in Cause Number 12029" and "on the 13th of January, 1999, in Cause Number 16984." In addition to these enhancement allegations, the State provided Alberty with notice that it intended to offer evidence of additional convictions in the Sixth Judicial District Court of Lamar County (1) for DWI 3rd entered on August 31, 1992, in cause number 13813, (2) for DWI 3rd entered on September 4, 1992, in cause number 14082, and (3) for possession of a prohibited weapon entered on February 14, 1990, in cause number 12388.

         Because Alberty's plea paperwork demonstrated that he did not stipulate to the State's enhancement or habitual-offender allegations, the State was required to prove the allegations during the punishment hearing.[2] In support of these allegations, the State offered State's Exhibits 3-7 at trial. State's Exhibits 3-5, which are the focus of this appeal, each contained a fingerprint card, certified copies of judgments of conviction, and mug shots.

         The dates shown on the fingerprint cards, as well as the statutes of offense written on the fingerprint cards, demonstrated that they could not be associated with the judgments of conviction contained in State's Exhibits 3-5. Accordingly, Alberty objected to the fingerprint cards and fingerprint comparison evidence. Finding that Alberty's argument went to the "weight of the evidence for the Court to consider but not to its admissibility, " the trial court overruled Alberty's objection. See Pachecano v. State, 881 S.W.2d 537, 545 (Tex. App.-Fort Worth 1994, no pet.) (citing Robinson v. State, 739 S.W.2d 795, 802 (Tex. Crim. App. 1987) (per curiam)).

         In addition to the State's exhibits, the trial court heard testimony from several witnesses, including Nicole Hearn, Alberty's fiancée. Hearn testified that Alberty had previously been arrested for DWI and that she had visited him in the penitentiary. Although she was not positive of the year of her visit, she believed it occurred in 1993. Hearn identified Alberty as the person in the mug shots contained in State's Exhibits 3-5. She added that Alberty went to a Substance Abuse Felony Punishment (SAFP) facility as a condition of community supervision in 2004 or 2005. Hearn also informed the trial court that Alberty was an alcoholic and that his disease would likely continue "forever."

         After hearing all of the punishment evidence, the trial court found the State's enhancement allegations true.

         II. Alberty Did Not Object to Certified Copies of Judgments of Conviction or Mug Shots Contained in State's Exhibits 3-5

         On appeal, Alberty argues that State's Exhibits 3-5, as a whole, were irrelevant and inadmissible. He further contends that "[t]he record establishes that Appellant objected to the admission of State's Exhibit 3, 4[, ] and 5 based on a failure by the State to sufficiently link Appellant ...

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