NO. 12-07-00201-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PATRICK TAVIN HACK,    §                      APPEAL FROM THE SEVENTH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Patrick Tavin Hack appeals his four consecutive sentences of imprisonment for life that he received following multiple convictions for sexual assault of a child.  In one issue, Appellant argues that the evidence is insufficient to support his punishment and that his sentences constitute cruel and unusual punishment.  We affirm.

Background

            Appellant was charged by indictment with four counts of sexual assault of a child.  The indictment further alleged that Appellant had a prior conviction for aggravated sexual assault of a child.  Appellant pleaded “not guilty,” and the matter proceeded to a jury trial.  Ultimately, the jury found Appellant “guilty” as charged on all counts.  Following a trial on punishment, the jury found the enhancement paragraph to be “true” and assessed Appellant’s punishment at imprisonment for life on each conviction.  The trial court sentenced Appellant accordingly and ordered that Appellant’s life sentences run consecutively.  This appeal followed.

Evidentiary Sufficiency for Sentence and Evidence Concerning Enhancement

            In his sole issue, Appellant contends that the evidence was not legally sufficient to support his sentence.  But Appellant’s sole issue is multifarious.  As part of his sole issue, Appellant argues that the State failed to put forth sufficient evidence to support his sentence as well as the finding of “true” with regard to the enhancement paragraph alleging a prior conviction for aggravated sexual assault of a child.

            We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.  See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Magic v. State, 217 S.W.3d 66, 70 (Tex. App.–Houston [1st Dist.] 2006, no pet.).  In conducting a factual sufficiency review, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof supporting the finding is so obviously weak as to undermine our confidence in the jury's determination, or the proof of the finding, although adequate if taken alone, is greatly outweighed by contrary proof.  See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

            The State’s inclusion of the enhancement paragraph at issue served to substantially increase Appellant’s punishment.  A person with no felony enhancements who is convicted of sexual assault of a child may be assessed a prison sentence of no less than two years and no more than twenty years. See Tex. Penal Code Ann. §§ 12.33(a), 22.011(f) (Vernon 2003 & Supp. 2007).  But where a jury makes a finding of “true” that a defendant who has been convicted of sexual assault has also been previously convicted of aggravated sexual assault, as is the case here, the punishment is a mandatory life sentence.  See Tex. Penal Code Ann. §§ 12.42(c)(2)(A)(I), (c)(2)(B)(ii) (Vernon Supp. 2007).

            Before the State may use enhancement paragraphs to increase a defendant’s range of punishment, it must prove that the enhancement allegations are true beyond a reasonable doubt. Magic, 217 S.W.3d at 70.  The enhancement paragraph at issue alleged as follows: 

And it is further presented in and to said Court that, prior to the commission of the aforesaid offense, on the 20th day of October, 1993, in cause number 22831 in the 3rd District Court of Anderson County, Texas, the defendant was convicted of the felony offense of Aggravated Sexual Assault of a Child.

Thus, for the State to show that Appellant was subject to punishment as an habitual offender, it was required to prove, beyond a reasonable doubt, that before Appellant’s commission of the primary offense, Appellant had been finally convicted in cause number 22,831.  See id.  The State may prove that a conviction is final and is true beyond a reasonable doubt when a defendant pleads “not true” by introducing the defendant's pen packet accompanied by expert testimony from a fingerprint expert who testifies that the fingerprints in the pen packet match the defendant's.  Id. at 71. 

            Here, the State relied on the testimony of Tyler Police Officer Jeff Callaway.  Callaway testified regarding his expertise in the field of fingerprint identification.  Callaway further testified that he had taken inked impressions of Appellant’s fingerprints on card stock the previous day.  The card stock containing Appellant’s fingerprints was admitted into evidence as State’s Exhibit No. 1.  Callaway next examined State’s Exhibit No. 2.  Callaway stated that Exhibit No. 2 was a judgment from a district court in Anderson County, Texas.  Callaway further stated that the last page of Exhibit No. 2 contained an inked fingerprint impression, which, based on his training and experience, he determined was Appellant’s fingerprint. 

            Appellant’s counsel thereafter conducted a voir dire examination on Callaway.  During the voir dire examination, Callaway testified that the print to which he compared the prints he personally took from Appellant was imprinted on an order revoking Appellant’s community supervision, and that this order bore the same cause number as Exhibit No. 2.  Callaway further conceded that he could not compare the fingerprint on the revocation of community supervision directly to the print on the original judgment.  Following the voir dire examination, Appellant objected to the admission of State’s Exhibit No. 2.  The trial court overruled Appellant’s objection and admitted State’s Exhibit No. 2.

            Callaway next testified that Exhibit No. 2 was a certified copy of a judgment of conviction for aggravated sexual assault of a child on a guilty plea in cause number 22, 831 in the 3rd Judicial District Court of Anderson County, Texas styled “The State of Texas versus Patrick Tavin Hack.”  Callaway stated that the judgment in Exhibit No. 2 showed the date of conviction as October 20, 1993.  Callaway explained that he matched Appellant’s fingerprint to a judgment revoking Patrick Tavin Hack’s community supervision in cause number 22,831, for which he was convicted of aggravated sexual assault of a child.  Callaway further stated that this judgment was taken in the 3rd Judicial District Court of Anderson County, Texas.

            Considering the foregoing evidence, we conclude that there was legally sufficient evidence to support that Appellant, on October 20, 1993, in cause number 22,831 in the 3rd District Court of Anderson County, Texas, was convicted of the felony offense of aggravated sexual assault of a child.  Furthermore, considering all of the evidence presented at Appellant’s trial on punishment, we have not uncovered evidence that demonstrates that the proof supporting the finding of “true” is so obviously weak as to undermine our confidence in the jury’s determination, or otherwise, that the proof of the finding of “true,” although adequate if taken alone, is greatly outweighed by contrary proof.

            As such, since Appellant’s life sentence comported with the punishment mandated by the legislature, we will not disturb it on appeal.  See Gerhardt v. State, 935 S.W.2d 192, 196 (Tex. App.–Beaumont 1996, no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)).¹  To the extent that his sole issue relates to sufficiency of punishment evidence, Appellant’s sole issue is overruled in part.

Cruel and Unusual Punishment

            As part of his sole issue, Appellant also contends that the sentence imposed on him constituted cruel and unusual punishment.  However, since Appellant made no objection to the trial court raising the issue of cruel and unusual punishment, he has waived such an issue on appeal.  See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see also Tex. R. App. P. 33.1.  However, even absent waiver, considering the serious nature of the offenses for which Appellant was convicted and the sentences respectively assessed thereon, we conclude that Appellant’s sentences were not unconstitutionally disproportionate and, thus, did not constitute cruel and unusual punishment.  See, e.g., Willis v. State, 192 S.W.3d 585, 595–97 (Tex. App.–Tyler 2006, pet. ref’d); see also Rummel v. Estell, 445 U.S. 263, 285, 100 S. Ct. 1133, 1145, 63 L. Ed. 2d 382 (1980).  The remainder of Appellant’s sole issue is overruled.

Disposition

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                                                     SAM GRIFFITH   

                                                                                                              Justice

Opinion delivered April 30, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)