### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REHEARING

NO. 03-14-00094- CR

William Alber t Mower, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 13- 1008 -K 26, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N We issued an opinion and judgme nt i n t h i s ca s e on Fe bruar y 19, 2016, and then withdrew the opinion and judgme nt on Fe bruar y 26, 2016. We substitut e the following opinion and judgme nt in place of

those issued on Fe bruar

y 19, 2016. A jury convicted appellant Wil liam Albert Mower of online solicitation of a minor,

a second- deg ree felony , which was enhanc ed to a first-degree fe l o ny due to a previous felony conviction for attempted rape . See Tex. Penal Code §§ 12.42, 33.021(c) , (f ). The jury assessed punishment at twenty -six y ear s’ imprisonment. On appea l, appellant challeng es the con s ti tu ti onality of the statute under which he was convicted and the admissibili ty of evid en ce of two prior convictions duringthe punishment phase of trial. We will affirm the tria l court’s judg ment.BACK GR OUND Serg eant Bla

ne Rodge rs was the only witness to testify during the g uilt-innocence p h as e o f trial. Rodge rs testified that he worke d in the Cy ber Crimes Unit of the Texas Attor n ey Gene ral’s O ff

i ce . He further testified that part of his job involved cre ating profiles in online chat forums and usi n g the profiles to pose as a minor in an attempt to identify child predators. In J une 2013, Rodge rs was using a profile he had cre ated in a n online chat f

orum ca lled MocoSpace

. MocoSpace require d users to be above a cer tain ag e to cre ate a profile, so Rodge rs cre ated a profile of a twenty -two-year -old woman but then made postings tending to indicate that the fictional woman

was in fac t a minor who had lied about her ag e, including status updates sug g esting she was a y oung g irl heading into her fre shman y ear in high school. Appellant beg an chatting with the fictional g irl, at which time the “ g irl” told a ppellant at least twice that she was in f act fourtee n y ear s old a

nd not twenty -two. In response , appellant made sever al sexually explic it rema rks, sent the g irl a photogr aph of his g enitalia, and proposed that the two of them have sex. Appellant and the “g irl” portrayed by Rodge rs made arr ang ements to me et at a park, and appellant said he would bring beer and told the “g irl” to wea

r a loose dr ess with no underw ear . Rodge rs and other law-e nforc ement office rs went to the park and observe d appellant

arr iving at the park car

rying brown bag s containing beer cans. Rodge rs later interrog ated appellant, and a videotape of the interrog ation was admitted into evidenc e at trial. In the videotape, appellant admitted that he had g one to the park pursuant to pr e-a rra ng ements to me et a g irl, that the g irl was fourtee n y ear s old, that he had sent her sexually expli cit messag es, that he “shouldn’t have done it” and knew his conduct was wrong , and that the purpose of meeting her at the park was “hooking up

2and having sex.” Appellant stated at one point in the interrog ation that he did not think he actua lly

would have had sex with the g irl beca use his “consc ience would have [gotten] to [hi m] ” due to her y oung ag e, but he also ag ree d with th e d et ec t i v e at a later point that he “proba bly would have sexually assaulted” the g irl if she had shown up at the park. At the conclusion of t rial, t he jury found appe llant g uilty of onl ine s olicitation of a minor. The trial c ourt then hea rd and over

ruled a ppellant’s objec tions to t wo exhibit s ref ere ncing previous convictions that the State offe red during the punishment phase of trial. After a hear ing on p u n is hme nt, th e jury found the State’s enhanc ement alleg ation of a previous conviction for attemp te d rape true a

nd assessed punishment a t twenty -six y ear s’ imprisonment. This appeal f ollowed.

DISCUSSIO N In three issues, appellant argues that (1) the statute under which he was convicted is unconstitutional; (2) the trial cour t erre d in admitting documents reg arding a Ne braska

conviction during the punishment phase of trial; and (3) the trial court err ed in admitting documents reg arding a Ne w York c onviction during the punishment phase of trial. We will address ea ch issue below.

Const itut ionali ty of Statut

e Appellant challeng es the constitutionalit y of sectio n 3 3

. 0 2 1(c) of the Texas Penal C ode, the statute under which he was convicted. Specifica lly , appellant contends that section 33.021(c) , when combined with other provisions in the statute, is unconstitutionally overbr oad and vague beca

use it prohibits a person from eng ag ing in fanta sy ag e-pl ay with another consenting

3adult. At the time that the offe nse in this case occur red, s ec t i o n 3 3 .021 stated the following , in rele vant par

t: (a) In this section:

(1) “ Minor” mea

ns: (A) an individual who repr esents himself or herse lf to be y oung er tha

n 17 y ear s of ag e; or (B ) an individual whom the actor believes to be y oung er than 17 y ear s of ag e.

. . . . (c ) A person commits an offense if the person, over the Interne t, by elec tronic mail or text messag e or other elec tronic messag e service or sy stem, or throug h a commerc ial online service , knowing ly solicits a minor to meet another person, including the actor , with the intent that the minor will eng ag e in sexual contac t, sexual intercour se, or deviate sexual int erc ourse with the a ctor or a nother pe rson. (d) It is not a defense to prosecution under Subsection (c) that: (1) the me eting did not occur; (2) the a ctor did not intend for the meetingto occur ; or (3) the actor was eng ag ed in a fanta sy at the time of commission of the offe nse.

Act of May 25, 2005, 79th L eg ., R.S., ch. 1273, § 1, 2005 Tex. Gen. L aws 4049, 4050, amende d by Act of May 21, 2007, 80th L eg ., R.S., ch. 610, § 2, 2007 T ex . Ge n . L aws 1167, 1167-68 and Act of May 27, 2007, 80th L eg ., R.S., ch. 1291, § 7, 2007 Tex. Gen. L aws 4344, 4349-50, amende d

4by Act of May 22, 2015, 84th L eg ., R.S., ch. 61, § 1, 2015 Tex. Gen. L aws 1036 (cur rent version at Tex. P enal Code § 33.021)

. 1

A. Stand ard of Review We revie w the constitutionalit y of a criminal statute de novo. Ex p a r t e L o , 424 S.W .3d 10, 14 (Tex. Crim. App. 2013). When a party challeng es a statute as unconstitutional,

we ordinarily beg in with a presumption that the statute is valid and that the L eg islature has not acte d

unrea sonably or arbitra

rily

. Id

. at 14–15; State v. Rosseau , 396 S.W .3d 550, 557 (Tex. Crim. App. 2013). The p ar t y challeng ing the statute has the burden to establish that the statute is

u n co n s tituti onal. Ex parte Lo , 424 S.W .3d at 15. This presumption does not apply wh en t h e g overnme nt seeks to restric t speec h bas ed o n co n tent. Id

. Content-based regulations are presumptively

invalid, and the g overnme nt bear s the burden to r ebut that pre sumption. Id

. In this case , appellant seems to argue that the sta t u t o ry p rovi sion at issue is content-ba sed. We conclude , as have sever al other Texas courts, that the provision is a conduct- based statute subje ct to a pre sumption t hat the statute is va lid. See id. at 16–17 (de eming section 33.021(c) a con d u ct -based provision beca use “it is the conduct of reque sting a minor to eng ag e in illega l sexual acts t h at is the g rava men of the offe nse.”) ; Ex parte Victorick,

Effe ctive September 1, 2015, the leg isl at u re chang ed the definition of “minor” under 1 section 3 3

. 0 2 1(a) (1)( A) from “an individual who represe nts himself or herself to be y oung er than 17 y ear s of ag e” to “an individual who is y oung er than 17 y ear s of ag e.” Act of May 22, 2015, 84th L eg ., R.S., ch. 61, § 1, 2015 Tex. Gen. L aws 1036. In the same amendment, the leg islature also chang ed section 33.021(d) to delete the prohibition on a defe ndant raising a defe nse that he did not intend for the meeting to occur or that he was eng ag ing in fanta sy at the time of commission of the offe nse. Ac t of May

22, 2015, 84th L eg ., R.S., ch. 61, § 2, 2015 Tex. Gen. L aws 1036. 5No. 09-13-00551- CR, 2014 WL 2152129, at *2–3 (Tex. App.—B eaumont May 21, 2014, pet. ref ’d) (mem. op., not desig nated for publication), cert. denied, Victorick v. Texas , 135 S. Ct. 1557 (2015);

see a l s o E x parte Zavala , 421 S.W .3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref ’d); Maloney v. State , 294 S.W .3d 613, 626 (Tex. App.—Houston [1s t Dist.] 2009, pet. re f’d)

. In challeng ing the constitutionalit y of a statute, a defe ndant may challeng e the statute

on its fac e or as it is applied to him. Scott v. State , 322 S.W .3d 662, 665 n.1 (Tex. Crim. App. 2010), abrogated on other grounds by W ilson v. State , 448 S.W .3d 418 (Tex. Crim. Ap p . 2 0 1 4 ); Fluellen v. State , 104 S.W .3d 152, 167 (Tex. App.—Texarkana 2 0 0 3, no pet.). Her e, appellant makes a fac ial challeng e to the statute beca use he does not argue that the statute is unconstitutional

as it applies to the specific fac ts of this case but rathe r that the languag e of the statute itself rende rs the statute unconstitutional. See Scott , 322 S.W .3d at 665 n.1 (fa cial challeng e is claim that statute, by its terms, alway s operates unconstitut i o n ally , while “as applied” challeng e is claim t hat s tatute operates unconstitutionally as applied to defe ndant’s particula r circ umstances)

. In making a fac ial

c h a ll e ng e, a defe ndant must show that the statute operates unconstitutionally in all of its application s . Rosseau , 396 S.W .3d at 557.

B. Overbre adth Chal lenge In his first argument challeng ing the constitutionalit y of the statute, app el lant contends that the combination of subsection (a) (1)( A), which define d “minor” as “an individual who repr esents hims el f o r h er s elf to be y oung er than 17 y ear s of ag e,” and subsection (d), which p ro h i b i t ed a defe ndant from raising a defe nse that he was eng ag ing in fanta sy at the time of th e

6commission of the offe nse, rende rs the statute overbr oad beca use it prohibits a person from eng ag ing in fantasy ag e-pla y with another c onsenting adult. Acc ording to the Fi rs t Amendment overbr eadth doctrine, a statute is fac ially invalid—and there fore operates unconstitutionally in all of its applications—if it pro h i b its a “substantial” amount of protec ted speec h “judg ed in relation to the statute’s plainly l egi t i m ate

swee p.” Ex parte Lo , 424 S.W .3d at 18 (quoting Virginia v. Hicks , 539 U.S. 113, 118-19 (2003))

. The overbre adth doctrine should be employ ed with hesitation and only as a las t resor t. New Y ork v. Fe rber , 458 U.S. 747, 769 (1982).

Some of our sister courts have alre ady held that s ec t ion 33.021(c) is not unconstitutionally overbr oad based on the same (or a v ar i ation of the same) argument as the one made by appellant here

. See Ex parte W heele r , 478 S.W .3d 89, 96 (Tex. App.—Houston [1st Dist.] 2015, pet. ref

’d) (re jecting defe ndant’s contention that section 33.021(c) as combined with subsection (d) was unc onstitut ionally overbr oad bec ause it prohibited adult from soliciting fellow adult p rete nding to be child as part of fanta sy); Ex parte Victorick, 2014 WL 2152129, at *5 (re jecting defe ndant’s argument that section 33.021(c) was unconstitutionally overbr oad beca use it criminalized otherwise leg al communications with person who could be ol d er t h an sevente en); Maloney , 294 S.W .3d at 626–28 (re jecting defe ndant’s asser

tion that section 33.021(c) as combined with subsection (d) was unconstitutionally overbr oad beca use it pr ohibited c onsenting adults from eng ag ing in fanta sy ag e-pla y ). Fur ther, althoug h the Texas Court of Criminal Appea ls struck down

a differ ent provision of section 33.021 as unconstitutional, the court specific ally addre ssed section 33.0 2 1 (c ) an d observe d that “[s] uch sol icitation statutes exis t in virtually all states and have been

7routinely upheld as constitutional beca use ‘o ff er s to eng ag e in illega l transac tions [such as sex ual assault of a minor] are cate g orica lly excluded from First Amendment p rotec tion.’” Ex parte Lo , 424 S.W .3d at 16 (quoting United States v. W illiams , 553 U.S. 285, 297 (2008))

. The Lo court went

on to note that the First Court of Appea ls upheld the constitutionalit y of section 33.021(c) and that althoug h section 33.021(c) was not at issue in Lo , the section “provide [d] an excellent contra st” to the provision decla

red unc onstitut ional in Lo

. Id . at 17. We rea ch the same conclusion as our sister courts and hold that section 33.021(c) is not unconstitutionally ov erb road. Although appellant argues that section 33.021(c) , as combined wi t h s u b s ec t i on (d), could prohibit a person from sol iciting another consenting adult to eng ag e in fanta sy ag e-pla

y , a statute should not be invalidated for overbr eadth mere ly beca use it is possible to imag ine an unconstitutional application. Ex parte W heele r , 478 S.W .3d at 94; Ex part e E l l is , 2 7 9 S

. W

. 3 d 1, 20 (Tex. App.—Austin 2008), aff’d , 309 S.W .3d 71 (Tex. Crim. App. 2010); Maloney , 294 S.W .3d at 627; In re Shaw , 204 S.W .3d 9, 1 5 (T ex. App.—Texarkana 2006, pet. ref ’d). The vast majority of transac tions proscr ibed by the statute are transac tions desig ned to lead to clea rly criminal conduct (an adult eng ag ing in sexual activity with a minor). Fur ther, as our sister courts have pointed out, the g overnme n t o b j ec t i ve of the solicitation statute—to protec t children from sexual exploi tation and abuse—is of surpassing importance , and that leg itimate and important objective g reatly outweig hs the threat of ensnar ing the occa sional innocent adult eng ag ing in fanta sy ag e-pla y . Ex parte W

heele r , 478 S.W .3d at 95; Malo n ey , 2 9 4 S

. W

. 3 d at 628; see also Ferber , 458 U.S. at 75 7 (“The preve ntion of sexual exploi tation and abuse of children constitutes a

8g overnme nt objective of surpassing importance .”). Acc ording ly , we conclu de that section 33.021(c)

is not unconstitut ionally

overbr oad.

C. Vagueness Challenge In challeng ing the statute for v agu eness, appellant contends that the statute is impermissibly vague beca use it c hills protec ted expression be tween consenting adults eng ag ing in fanta sy ag e-pla

y and because it fails t o define “fa ntasy .” A s tat u t e is void for vag ueness if it fails to define t h e criminal offense with sufficie nt definitene ss that ordinary people can understand t he conduct that is prohibited and if it fails to provide expli cit standards to those who enfor ce and apply it. Grayne d v. City of

Rock ford , 408 U.S. 104, 108 (1972); State v. Holcombe , 187 S.W .3d 496, 499 (Tex. Crim. App. 2006 ). A s t at u t e i s not void for vagueness mere ly beca use the words or terms employ ed in the statute are not specific ally define d. Holco mb e , 187 S.W .3d at 499; Maloney , 294 S.W .3d at 628. I f the words used in a s t at ute are not define d within the statute, we g ive the words their plain meaning

. See Parker v. State , 985 S.W .2d 460, 464 (Te x . Crim. App. 1999); Mal o n ey , 294 S.W .3d at 628. Challeng ed terms can be measure d by common understanding and prac tices or construed in the sense g ener ally understood. See Ely v. State , 582 S.W .2d 416, 419 (Tex. Crim. App. 1979); State v. W offord , 34 S.W .3d 671, 680 (Tex. App.—Austin 2000, no pet.). When measur i ng the statute by common understanding and prac tices and when construing the statute as g ener ally understood, the statute in pl ac e at t h e time of appellant’ s conviction g ave a person of o rd i n ar y i n tellige nce fair notice of the prohibited conduct: a person could not by an elec tronic communication solicit a minor or a person repr esenting himself or herse lf to be a minor to meet the person for the purpose of sexual activity , and if a person did so, that person 9could not rely on a defe nse that he was eng ag ing in fanta sy at the time of the offe nse. See Grayne d ,

408 U.S. at 110-12 (statute need only g ive fair notice in light of common understanding) ; United States v. Petrillo , 332 U.S. 1, 8 (1947) (“The languag e here challeng ed convey s sufficie ntly definite war

ning as to the proscr ibed conduct when measure d by com m on understanding and prac tices. The Constit ution require s no more.” ). The term “fa ntasy” itself, althoug h not specific ally define d within the statute, is easily understood by people of common intellige n ce b y gi v i ng it its plain and common meaning , which is all that is require d. See Grayne d , 408 U.S. at 110-12; Petrillo , 332 U. S

. at 8 ; W

a tson v. State , 369 S.W .3d 865, 870 (Tex. Crim. App. 2012); Ely , 582 S.W .2d at 419; W offord , 34 S.W .3d at 680. We note that appellant’ s argument throug hout his brief that the statute infring es on protec ted speec h

— t he only possible interpre tation of which is two adults eng ag ing in fanta sy ag e-pla y —shows that the p r o hibited conduct and the term “fa ntasy” are clea

r and easily understood. Fur ther, beca u s e th e s ta tu te a d e q u a te ly d e ta il s th e p r o h ib it e d c o n d u c t, the enfor ceme nt of th e s t at ute is not rele g ated to the subjective interpre tation of police office rs or prosec uting attorney s. See Bynum v. State , 767 S.W .2d 769, 775 (Tex. Crim. App. 1989) ; Duncantell v. State , 230 S.W .3d 835, 846 (Tex. App.—Houston [14t h Dist.] 2007, pet. ref ’d). The languag e of the statute prohibiting an adult from usi ng an electronic communication to solicit a minor or a per son repr esenting him or herse lf as a minor to meet for sexual activity provides adequate g uidance to lawenfor ceme nt personne l such that the risk of improperly motivated selec tive enfor ceme nt is obviated. See B ynum , 767 S.W .2d at 775; Duncantell , 230 S.W .3d at 846.

10Be cause the statute sets forth the criminal offe nse with sufficie nt definitene ss that

ordinary people can understand the conduct that is p r o h ib ited and provides expli cit standards to those who enfor ce and apply the law, we hold that the statute is not imper missibl y vague. See Grayne d , 408 U.S. at 108, 110–12; Holcombe , 187 S.W .3d at 499; Bynum , 767 S.W .2d at 775; Duncantell , 230 S.W .3d at 845–46; see also Ex parte E l l is , 309 S.W .3d 71, 86 (Tex. Crim. App. 2010) (“[P] erf ect clar ity and prec ise g uidance have never been require d even of regulations that restric t expressive ac tivity .”)

D. Conclusion Regar din g Constitutional I ssue Be cause we conclude that section 33.021(c) as it exis ted at the time of the offe nse in this case is not unconstitutionally overbr oad or va g ue, we overr ule appe llant’s first issue. Evidentiary Ch allenges

In his second and third issues, appellant conte n d s th at the trial court err ed in admitting evidenc e of his prior convictions during the pun i s h m ent phase of trial beca use the evidenc e was in s u ff i ci ent t o prove that he was the person convicted. Specifica lly , appellant challeng es t he trial court’s admission of a cer tified copy of an “Amende d Com p l ai nt” and “Journal Entry and Order” from Nebr aska showing a conviction for failure to reg ister as a sex offe nder and a cer tified copy of

a “Certific ate of Conviction” from New York showing a conviction for first-degree attempted rape .

Section 3(a) of article 3 7

. 0 7 o f the Tex as C ode of Criminal Procedur e gover ns the admissibili ty of evidenc e at the punishment phase of a non-ca pital crimin al trial and allows the admission of any

evidenc e the trial court “deems relevant to sentenc ing, including but not limit ed

11to the prior cr iminal recor d of the de fenda nt, . . . [ and] evidence of an e x trane ous crime or bad ac t that is s h o wn b ey o n d a rea sonable doubt by evidenc e to have been committed by the defe ndant.” See Tex. Code Crim. Proc. art. 37.07, § 3(a) (1). We use an abuse- of-discr etion standard in revie wing

a trial court’s decision to admit punishment evidenc e. See Davis v. State , 329 S.W .3d 798, 803 (Tex. Crim. App. 2010).

To establish that a defe ndant has been convicted of a p ri o r offe nse, the State must prove bey ond a reasonable doubt that (1) a prior convic tion ex ists, and (2) the defe ndant i s linked to that conviction. Flowers v. State , 220 S.W .3d 919, 92 1 (Tex. Crim. App. 2007). No specific documents or mode of

proof is re quired to prove the two elements. Id . The State may prove both of the ele m en t s in a number of way s, including documentar y proof that contains sufficie nt information to establish both the exis tence of a prior conviction and the defe ndant’s identity as the person convicted. Id

. at 921–22. Any ty pe of evidenc e, documentar y or testimonial, might suffice

. Id

. at 922. The fac tfinder looks at the totality of the evidenc e to deter mine whether the State proved the prior c onviction and the def endant’ s connec tion to it beyond a re asonable doubt. Id . at 923. Although the State prese nted exhibi ts relating to two previous convictions, the only prior conviction used for enhanc ement purposes—that is, alleg ed in the indictment and set forth in the jury char g e on punishment—was appellant’ s conviction for attempted rape in New Yor k. The evidenc e prese nted by the State consisted of four exhibi ts: (1) Ex h i bit 5, a cer tified copy of an “Amende d Complaint” and “Journal Entry and Orde r” from Nebr ask a s howing a conviction for failure to reg ister as a

sex offender ; (2) Exhibi t 6, a ce rtified copy of a “Certific ate of Conviction” from New York showing a co n v i cti on for attempted rape ; (3) Ex hibit 7, a cer tified copy of a file

12from the Texas Depa rtment of Public Safety Sex Offe nder Reg istry ; and (4) Ex hibit 8, a fing erpr int

car d showing fing erpr ints taken from appellant on the day of the punishment hea

ring . In addition to the exhibi ts, the State prese nted a fing erpr int expert who took the fing erpr ints from appellant on the day of the he aringand testified that the fing erpr ints taken that day matched those contained in Ex hibit 7, the file from the sex-offe nder r eg istry

.

T he first pag e of Ex hibit 5, the document from Nebr aska, is an “Amended Complaint” and allege s that “Willi am M ower ,” with a birth date of J une 12, 1966, committed the offe nse of failing to reg ister as a sex offe nder in 2008. T h e second pag e is a “Journal Entry and Orde r” signe d by a Nebr aska judge indicating that “Willi am Mower” was sentenc ed for the failure -to-re g ister offe nse in 2008. Ex hibit 6, t h e document from New York, states that “Willi am A. Mower,” with a birth date of J une 1, 1966, was convicted of first-degree attempted rape

on Dec ember 17, 1998, in Chenang o County , New Yo rk. Part of the judgme nt states that “[appellant] is cer

tified to be a sex offe nder.” Ex hibit 7, the file for “Willi am A. Mower” from the T ex as s ex -offender reg istry , contains a signific ant amount of identifying information. The file includes, among other things, a date of birth of J une 12, 1966; a social-se curity number; a phy sical descr iption of the offe nder; a photogr aph of the offe nder; a descr iption of the underly ing offe nse, which is descr ibed as first-degree attempted rape in Chenang o County , New York with a dispositi on date of Dec ember 17, 1998; and the offe nder’ s fing erpr ints. Ex hibit 8, the fing erpr int car d, is dated Fe bruar y 4, 2014, the date of the punishment he aring , and contains appellant’ s name; fing erpr ints; date of birth of J une 12, 1966; and signature. The State’s fing erpr int expert, J anet Bor ing, testified that she took the fing erpr int sample from appellant on the day of the hear ing. She testified that she

13then compared the f inge rprints she took from appellant to the finger prints in Ex hibit 7, the record from the se x -off

ender reg istry , and conf

irmed that the fing erpr ints were a match. Thus, the fing erpr ints taken from a ppellant (whose name is listed in the indictment in this case as Wil liam Albert Mower) on the fing erpr int car d on the day of the hear ing match with the fing erpr ints in the Texas sex-offender reg istry file of “Willi am A. Mower.” The birth date of J une 12, 1966, also matches betwee n the fing erpr int car d and reg istry file. The trial judge and jury

wer e also able to obse rve appellant in the courtroom and compar e him to the photos in the reg istry file. Fur ther, the reg istry file shows that the rea son that appellant was a reg istered sex offe nder was that he was convicted of first-degree attempted rape in Chenang o County , New York, on Dec ember 17, 1998. The “Certific ate o f Conviction” matches the reg istry file by showing that “Willi am A. Mower” was co nvicted of first-degree attempted rape on Dec ember 17, 1998, in Chenang o County , New York. The “Amende d Complaint” a nd acc ompanying “Journal Entry and Orde r” from Nebr aska indicates that “Willi am M o we r,” with a birth date of J une 12, 1966, was subject to the Sex Offende r Reg istration Act and wa s require d to reg ister ac cording ly

.

Considering the totality of the evidenc e, the jury could view the identifying information contained in the sex-offende r-r eg istry file, including the fing erpr ints and photogr aphs, in conjunction with the iden t ify ing information in the other exhibi ts and the fing erpr int expert’s testimony , and deter

mine that the evidenc e contains sufficie nt information to establish the exis tence of a prio r conviction for attempted rape and appellant’ s identity as the person convicted. See id

. at 923–25.

14Appellant points out that the birth date listed on the “Certific ate of Conviction” from

New York was J une 1, 1966, while the birth date listed in all of the other exhibi ts was J une 12, 1966. Howeve r, g iven all of the othe r evidenc e matching appellant to the attempted-r ape c onviction, the jury could have rea sonably

deter mined that the birth date on the “Certific ate of Conviction” was a cler ical err or, as the date was identical to the date listed in all the other documents with the exception of one missing number. Appellant also argues t h at the cause number of the attempted rape conviction listed in the sex-offende r-r eg istry file was not t h e n u m b er listed in the “Certific ate of Conviction.” Howeve r, the doc uments show that the reason t he number s do not match is beca use t h e s ex -o ffender reg istry file lists the cause number of the conviction, while the “Certific ate of Conviction” lists the indictment number, not the c ause numbe r.

We conclude that the totality of t h e ev i dence is sufficie nt to show that the State proved the prior convic tion and appellant’ s connec tion to it

. See id

. The trial court did not abuse its discretion in admitting the challeng ed exhibi ts. Acc ording ly , we overr ule appellant’ s second and third issues.

CONCLUSION

Havingoverr

uled all of a

ppellant’s issues, we aff

irm the trial cour

t’s judgme nt of convic tion.

15_______________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pemberton, Goodw in, and B ourland Affir med on Rehea

ring Filed: Apr il 7, 2016 Do Not Publish

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