### 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

NO. 03-09-00618- CR

Am ado Pe rez , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 09- 3012 35, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The district court found appellant Amado Perez g uilty of burg lary of a habitation and sentenc ed him to three year s in prison. See Tex. P enal Code Ann. § 30.02 (West 2003). The sole contention on appe al is that the evidenc e is leg ally insufficient to suppor t the finding of g uilt. W e

overr ule this contention and af firm the convic tion. On November 25, 2008, Rolando J uare z returne d to his apar tment to fi n d t h at t he front door had been forc ed open and the interior ransa cked. A paint spray er, drill, video g ame sy stem, and about two hundred quarte rs had been stolen from J uare z’s bedroom. A stereo rec eiver had been moved from a cabine t in the living room to the coff ee table. A crime scene specia list found and photogr aphed a palm print in the dust on the top of the rec eiver

. She also found and lifted two latent fing erpr ints on the metal surfa ce of the rec eiver , one on the top and one on the bottom. Theseprints are the only evidenc e linking appellant t o t h e b u rgl ary . Appellant urg es that the prints are

leg ally insufficient to support the finding of g uilt because they wer e not shown to be his. The State’s fing erpr int expert was Toby Cross, a latent print examiner for the Austin Police Depa

rtment. Cross identified three sets of prints. State’s exhibi t 25 contained the prints taken from the stereo rec eiver by the evidenc e technicia n. Cross said that when these prints wer e enter ed into the Automated Fing erpr int I dentification Sy stem (AF I S), “it came back as a hit and it made an identify ing match to a viable candidate.” The AFI S fing erpr int car d was introduced in evidenc e as State’s exhibi t 26. The car d bear s the name Amado Perez, and includes a Social Security number, birth date, and phy sical descr ipt i o n , but there is no trial evidenc e that, aside from the name, this i d en t i fy i ng information matches appellant. Cross identified State’s exhibi t 27 as a set o f 1 fing erpr ints he persona lly took from appe llant shortly befor e testifying. The prosec utor questioned Cross reg arding his examination of the three sets of prints: Q: Mr. Cross, as defe nse counsel has just talked about [during voir dire], he alluded that y ou had chec ked fing erpr ints in this case —. And I ’m assuming that’s from State’s Exhi bit 25— A: That’s c orre ct. Q: —to those known to—that came from the de fenda nt; is t hat cor

rec t? [ ] 2 A: That’s c orre ct.

We note, howeve r, that the date of birth on exhibi t 25 is the same birth date that appea rs on the 1 war rant for appellant’ s arr est, the sheriff ’s return, and sever al i n d i gen ce forms submitt ed for the appointment of counse l, all of which a re in the c lerk’s r ecor d. Fr om the context of the prosec utor’s questioning as a whole, we infer that the “known prints” 2 ref err ed to in this and the following question were the AF I S prints. 2. . .

Q: I believe y ou had said, in response to defe nse counsel’s question, that there wer e at least eig ht points of co m p ar i s on betwee n the prints that y ou obtained as State’s Ex hibit 25 and those known prints of the def endant; is that corr ect? A: That’s c orre ct

. . . Q: Now, Mr. Cross, did y ou have an oppo rt u n i t y to obtain fing erpr ints from the defe ndant her e today ? A: Yes, I did. Q: And wer e y ou able to do a compar ison betwee n the prints that y ou obtained from the def endant a nd the prints that y ou had in this case? A: Fr om the prints from the def endant, this afte rnoon, to the ac tual latents here ? Q: Yes. A: No, sir, I

did not. Q: Were y ou able t o d o a co m p arison betwee n the prints that y ou compar ed the latents to with the AFI S? A: Yes, I did. Q: Okay . And what wa s the result? A: My conclusion was that the—they are the defe ndant’s, and they came back to be his right middle fing er, twic e, and his lef t palm print, twice.

. . . Q: Okay

. And are these 26 and—State’s Ex hibit 26 and 27, when y ou talked about doing a compar ison today , are these the documents—the defe ndant’s prints that y ou used to make a

compar ison? A: Yes, they

are .

3Cross clea rly stated that he did not compar e the latent prints collecte d at the scene of the burg lary to the prints he took from appellant on the day of trial. The rest of his testimony is less clea r, but viewed in the light most favor able to the res u l t , t h e trial court could have rea sonably understood Cross to say that he had compar ed the AFI S prints to both the latent prints and the prints he took from appellant, and that in both case s they matched. T hus, in this indirect way , the print s found at the sc ene w ere shown to be appe llant’s.

When the evidenc e shows that fing erpr ints found at the scene of the crime wer e left there by the criminal at the time the crime was committed, there by excluding the hy pothesis that they

wer e place d there innocently , and the evidenc e further shows that the fing erpr ints are identical to the

acc used’s known prints, the eviden c e e xc lu d e s e v e r y r e a s o n able hy

pothesis save g uilt of the acc used. Scott v. State , 968 S.W .2d 574, 578 (Tex. App.—Austin 1998, pet. ref ’d). Appellant’s prints wer e found on the stereo rec eiver that had been moved during the burg lary

. The palm print was made in the dust on top of the rec eiver , su gges t i n g that it was fre sh. J uare z testified that he did not know appellant and had never given him permission to enter his residenc e. Viewing all the evidence in the light most favor able to the finding of g uilt, t h e t ri al court could rationally conclude bey ond a

rea sonable doubt that appellant was the perso n wh o b u rgl arized J uare z’s apar tment. See Jack

son

v. Virginia , 443 U.S. 307, 324 (1979) (leg al sufficie ncy standard) ; Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (same)

.

4The judg ment of convic tion is affirmed.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Oc tober 21, 2010 Do Not Publish

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