In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00111-CR 

RALPH PENA LUERA, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 100th District Court 

Carson County, Texas 

Trial Court No. 5525-A, Honorable Stuart Messer, Presiding 

 

September 16, 2015 

 

MEMORANDUM OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

A jury convicted appellant Ralph Pena Luera of burglary of a habitation and 

assessed punishment, enhanced, at forty-five years’ confinement in prison.1 Appellant 

presents two issues on appeal, arguing the State failed to prove he lacked the effective 

consent of the owner of the house, and the evidence was insufficient to prove the prior 

 

1 See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011) (burglary); § 12.42(d) 

(West Supp. 2014) (enhancement of term of incarceration).
2

convictions for enhancement of punishment. We find in both instances the evidence 

was sufficient, and affirm the judgment. 

Background

Alvin Preston and his wife Julie Preston2became acquainted with appellant 

through her sister Jamie Roper. Roper and appellant are the parents of a child. On 

three or four occasions prior to August 20, 2013, appellant and Roper visited the 

Prestons’ home together. Julie at times allowed appellant to borrow the family’s laptop 

computer. 

Roper once had a key to the Preston home and had permission to enter when 

the Prestons were gone. After the key was lost, Julie gave Roper permission to enter 

her home through a window. Julie had no objection to Roper entering the house in this 

way, if Roper first notified her. Julie testified appellant did not have permission to enter 

her home. She said appellant had no reason to be in her home and she did not trust 

him. Alvin Preston testified that appellant did not have permission to enter the Preston 

home in his absence or the absence of his family.

On August 20, 2013, the Prestons took an out-of-state vacation. During their 

vacation, Roper sent Julie a text message stating Roper had left her makeup at the 

Preston home. Julie responded that Roper was “out of luck” because the house was 

locked. She would have to wait. According to Julie’s testimony appellant did not have 

permission to borrow the Preston’s laptop computer while they were on vacation.

 

2

For clarity, we sometimes will refer to the Prestons by their given names. 
3

When the Prestons returned from vacation they noticed their laptop computer 

and a pistol were missing from their home. They contacted the sheriff’s department. An 

investigation ensued, and a deputy interviewed Roper and appellant. 

According to the deputy’s testimony, appellant told him he entered the Preston 

residence through a kitchen window and took the Prestons’ laptop computer without 

permission. In another interview with the deputy, appellant admitted taking a pistol from 

the residence.

Appellant did not testify at trial. The State’s evidence included a written 

statement appellant gave law enforcement, saying he entered the residence to retrieve 

the makeup because Roper told him it was “okay.” The written statement also includes 

the assertions he previously used the Prestons’ laptop computer “a lot” and that he took 

it on this occasion to use it. He further wrote that on a prior occasion he and Roper 

entered the Prestons’ locked residence through a window, with Julie’s permission. 

The indictment alleged “[appellant] on or about the 20th day of August, 2013 . . . 

did then and there: with intent to commit theft, enter a habitation, without the effective 

consent of Julie Preston, the owner thereof.”

The application paragraph in the jury charge at the guilt-innocence phase of trial 

stated:

You must determine whether the state has proved, beyond a reasonable 

doubt, four elements. The elements are that1. The Defendant, in Carson County, Texas, on or about the 

20th day of August, 2013 entered a place, and
4

2. The place entered was a habitation owned by Julie 

Preston; and

3. Julie Preston, the owner of the habitation, did not 

effectively consent to this entry; and

4. The Defendant entered with intent to commit a theft. 

If you all agree the state has proved, beyond a reasonable doubt, each of 

the four elements listed above, you must find the Defendant “guilty” of 

Burglary of a Habitation.

After the jury found appellant guilty of the charged offense, at the punishment 

phase it also found the two enhancement convictions true and assessed punishment as 

noted. Sentence was imposed accordingly. 

Analysis

First Issue

By his first issue, appellant asserts the State’s evidence that he entered the 

residence without Julie Preston’s effective consent was insufficient. Appellant contends 

in essence that he reasonably “was under the assumption” Roper was authorized to 

give him permission to enter the residence to retrieve her makeup, because of the prior 

dealings among the Prestons, Roper and appellant. 

In reviewing whether the evidence is sufficient to support a criminal conviction, 

we apply the standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 

2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. 

App. 2010). Under that standard, a reviewing court views all the evidence in the light 

most favorable to the verdict to determine whether any rational trier of fact could have 
5

found the essential elements of the offense beyond a reasonable doubt. Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 894-95, (citing 

Jackson, 443 U.S. at 319). The jury was the exclusive judge of witness credibility and 

the weight assigned their testimony and was free to choose to believe all, some or none 

of the evidence presented. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 

2008). If the record contains conflicting inferences, we must presume the jury resolved 

such facts in favor of the verdict and defer to that resolution. Id. On appeal, we serve 

only to ensure the jury reached a rational verdict, and we may not reevaluate the weight 

and credibility of the evidence produced at trial and in so doing substitute our judgment 

for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). 

The sufficiency standard is the same for both direct and circumstantial evidence. Wise,

364 S.W.3d at 903. For the evidence to be sufficient, the State need not disprove all 

reasonable alternative hypotheses that are inconsistent with the defendant’s guilt. Id.

Rather, a court considers only whether the inferences necessary to establish guilt are 

reasonable based upon the cumulative force of all the evidence when considered in the 

light most favorable to the verdict. Id.

A person commits burglary of a habitation when he, without the effective consent 

of the owner, enters a habitation with intent to commit theft. TEX. PENAL CODE ANN. § 

30.02(a)(1). “Consent” means assent in fact, whether express or apparent. TEX. PENAL 

CODE ANN. § 1.07(a)(11) (West Supp. 2014). “Effective consent” includes consent by a 

person legally authorized to act for the owner. TEX. PENAL CODE ANN. § 1.07(a)(19). An 

“owner” includes a person who “has title to the property, possession of the property, 

whether lawful or not, or a greater right to possession of the property than the actor.” 
6

TEX. PENAL CODE ANN. § 1.07(a)(35)(A). The Penal Code definition of “effective 

consent” also includes the statement of circumstances in which consent is not effective. 

One of those circumstances is consent “given by a person the actor knows is not legally 

authorized to act for the owner.” TEX. PENAL CODE ANN. § 1.07(a)(19)(B).

The court’s charge instructed the jury that consent to an entry is effective if it is 

given by “a person not the owner but who is believed by the Defendant to be legally 

authorized to act for the owner.”3

It is undisputed that Julie Preston and Alvin Preston own the home. The 

Prestons each testified that appellant did not have their permission to enter their home. 

Julie testified that on previous occasions she had authorized Roper to enter the home 

when it was locked, through a window. Neither of the Prestons testified they had ever 

authorized appellant to enter their home when they were not present, nor did they testify 

they had authorized Roper to permit appellant to enter their home. 

As noted, appellant wrote in his statement that he and Roper once entered the 

locked home through a window, with Julie’s permission. And, he wrote that Roper told 

him it was “okay” to enter the Preston home to retrieve her left-behind makeup. The 

court’s charge authorized the jury to find appellant had effective consent to enter the 

home if it was given by a person he believed to be legally authorized to act for the 

owner. If the jury found Roper consented to his entry and that he believed she was 

legally authorized to act for the Prestons, it was authorized to find his entry was with 

 

3

The instruction required also that, to be effective, the consent may not be 

induced by force, threat or fraud or given by a person who by reason of youth, mental 

disease or defect, or intoxication is known by the Defendant to be unable to make 

reasonable decisions.
7

effective consent. But the jury heard that version only in appellant’s written statements. 

Neither appellant nor Roper testified. In the exercise of its role as the judge of the 

credibility of witnesses, the jury was not required to believe appellant’s assertions in his 

written statements. 

In support of his position, appellant cites Munns v. State, 412 S.W.3d 95 (Tex. 

App.—Texarkana 2013, no pet.); Villanueva v. State, 711 S.W.2d 739 (Tex. App.—San 

Antonio 1986), pet. ref’d per curiam, 725 S.W.2d 244 (Tex. Crim. App. 1987); Eppinger 

v. State, 800 S.W.2d 652 (Tex. App.—Austin 1990, pet refused). We find each of these 

cases inapposite and therefore of no help to appellant.

Under the Jackson v. Virginia standard we find the evidence sufficient for a 

rational jury to find beyond a reasonable doubt that appellant did not have the effective 

consent of the owner to enter the Preston home. Appellant’s first issue is overruled.

Second Issue

By his second issue, appellant argues the evidence was insufficient to link him to 

two prior convictions for enhancement of punishment. 

The State sought enhancement of the punishment range by proof of two prior 

felony convictions.4 Appellant plead not true to the alleged prior convictions so the 

State assumed the burden of proof. Its supporting evidence included appellant’s 

 

4

In part relevant to this discussion, Penal Code section 12.42(d) provides if it is 

shown on the trial of a felony offense that the defendant was previously convicted of two 

felony offenses, and the second previous felony conviction was for an offense that 

occurred subsequent to the first previous conviction becoming final, on conviction the 

defendant shall be punished by imprisonment for life, or for any term of not more than 

99 years or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d). 
8

penitentiary packet or “pen packet,”5admitted into evidence as State’s punishment 

exhibit one, a card bearing appellant’s fingerprints taken on the morning of trial, marked 

as State’s punishment exhibit two, and the testimony of a chief deputy sheriff with 

training in fingerprint comparison. The chief deputy took the set of appellant’s 

fingerprints appearing on State’s exhibit two. 

State’s exhibit one, the pen packet, consists of the affidavit of the chairman of 

classification and records for the Texas Department of Criminal Justice-Correctional 

Institutions Division certifying the pen packet under the seal of the State of Texas; a 

card bearing photographs of appellant along with his name and the number 651738; 

nine judgments; and a fingerprint card. 

The pen packet contains the two judgments the State relied on for enhancement. 

The first judgment is from the 22nd District Court of Hays County, Texas, bearing cause 

number CR-92-590. The style of the case is “State of Texas vs. Ralph Pena Luera.” 

The instrument states the defendant was convicted of burglary of a building and 

sentenced to twenty years in prison. Sentence was imposed on December 21, 1992, 

and the judgment was signed on the same date. The defendant’s name appears only in 

the style of the case and the judgment contains no fingerprint or other information 

otherwise identifying the defendant. 

The second judgment is from the 181st District Court of Potter County, Texas, 

bearing cause number 62,535-B. The style of the case is “The State of Texas vs. Ralph

 

5 A “pen packet” is the document compiled by a prison official based on other 

primary documentation received from the clerk of the convicting court. Flowers v. State,

220 S.W.3d 919, 923, n.14 (Tex. Crim. App. 2007); Cuddy v. State, 107 S.W.3d 92, 96 

(Tex. App.—Texarkana 2003, no pet.). 
9

Pena Luera.” The instrument recites the defendant plead guilty to “evading arrest with 

vehicle with previous conviction” and was sentenced by the trial court to two years in 

prison and a $500 fine. According to the judgment, sentence was imposed on 

November 8, 2010, and the judgment was signed on November 10, 2010. On the 

second page of the judgment, beneath the printed and cursively written name “Ralph 

Luera,” appears a fingerprint designated “Defendant’s right thumbprint.” The front page 

of the judgment also bears the notation “State ID No.: TX04637661,” which ID number 

also appears on the pen packet fingerprint card. 

The chairman’s affidavit in the pen packet refers to “the attached information 

provided on inmate Luera, Ralph, TDCJ/BPP# 651738. It further states “cause# . . . 

CR92590(2 COUNTS) . . . 62535B, are true and correct copies of the original records 

now on file in my office in the regular course of business . . . .” The copy of the Potter 

County judgment was certified by the trial court clerk, but the Hays County judgment 

bears no certification by the trial court clerk. 

According to the testimony of the chief deputy, once an individual sentenced to a 

term of confinement reaches the penitentiary, his fingerprints are taken. When 

requested, the Department assembles the individual’s pen packet which includes the 

inmate’s most recent fingerprint exemplar and all judgments in the Department’s 

possession affecting him.

Concerning his comparison of appellant’s fingerprints, the chief deputy testified to 

the effect that the prints on the fingerprint card attached to the pen packet and the prints 

of appellant appearing on State’s exhibit two were made by the same person. Later in 
10

testimony, the chief deputy affirmed, based on his comparison of the fingerprint card 

attached to appellant’s pen packet, appellant is the same person convicted in the nine 

judgments included in his pen packet.

Appellant argues the Hays County judgment lacks sufficient information to 

identify him as the defendant there convicted. As for the Potter County judgment, 

appellant contends that even though the pen packet copy was certified by the clerk of 

the convicting court and contains the defendant’s fingerprint it fails to link appellant 

because there was no trial evidence comparing the fingerprint appearing on the 

judgment with a proven exemplar of appellant’s fingerprints.

To sufficiently prove a defendant was convicted of a prior offense, the State must 

establish the existence of a conviction and link the defendant to the conviction. 

Flowers, 220 S.W.3d at 921; Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 

1986). Ordinarily, a certified copy of a judgment, without more, is not sufficient to link a 

defendant to a prior conviction. Beck, 719 S.W.2d at 210. Rather, the State’s burden 

requires independent proof establishing the defendant is the same person named in the 

prior conviction. Id. Proof may be established by “[i]ntroduction of certified copies of 

the judgment and sentence and record of the Texas Department of Corrections or a 

county jail including fingerprints of the accused supported by expert testimony 

identifying them with known prints of the defendant.” Daniel v. State, 585 S.W.2d 688, 

690-91 (Tex. Crim. App. 1979) (citations omitted), overruled on other grounds by Littles 

v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1987) (op. on reh’g). 
11

A pen packet is admissible to show a defendant’s prior criminal record provided it 

is properly authenticated. Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991) 

(op. on reh’g); Bess v. State, No. AP-76,377, 2013 Tex. Crim. App. Unpub. LEXIS 334, 

at *114-16 (Tex. Crim. App. Mar. 6, 2013) (not designated for publication) (citing Reed,

811 S.W.2d at 587-88), cert. denied, 134 S. Ct. 899, 187 L. Ed. 2d 788, 2014 U.S. 

LEXIS 422, 82 U.S.L.W. 3405 (U.S. 2014); TEX. R. EVID. 901 & 902.

Here, appellant’s pen packet was properly authenticated under Rule of Evidence 

902(4) by the chairman’s affidavit. Reed, 811 S.W.2d at 586. Additionally, 

authentication was proper under Rule of Evidence 901(a). See Reed, 811 S.W.2d at 

587 (“The fact that the records are correct copies of those upon which [the Department]

relies in admitting and detaining prisoners at the state correctional facility constitutes 

extrinsic evidence that the records are what the proponent claims them to be”).

The Hays County judgment does not contain the defendant’s fingerprint. And the 

chief deputy did not compare the fingerprint on the Potter County judgment with the 

exemplar he took from appellant on the morning of trial. Rather, the chief deputy 

compared the prints contained on the fingerprint card attached to appellant’s pen packet

with those he took from appellant on the morning of trial. This procedure sufficiently 

linked appellant to the Hays County judgment and the Potter County judgment.

An examination of the packet indicates that it consists of certified copies of 

records of the Texas Department of Corrections pertaining to [the 

defendant], including the judgment and sentence in five separate 

convictions and one set of fingerprints. An expert witness testified that the 

fingerprints contained in the packet matched a set which he had taken 

from appellant on the same day. The fingerprints are used as a means of 

insuring that the person on trial is the same one to whom the packet 
12

refers. The fingerprints refer to the packet as a whole. This method of 

proof has been consistently upheld by this Court.

Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972); see Hallmark v. State, 789 

S.W.2d 647, 651 (Tex. App.—Dallas 1990, pet. refused) (explaining the defendant’s 

“fingerprint card in the pen packet refers to the pen packet as a whole” after stating 

deputy sheriff testified that fingerprints in defendant’s pen packet matched the set he 

took from defendant on the day of trial); Bridges v. State, No. 02-06-00418-CR, 2007 

Tex. App. LEXIS 7529, at *15-17 (Tex. App.—Fort Worth Sept. 13, 2007, pet. refused) 

(per curiam, mem. op., not designated for publication) (reviewing cases and holding one 

set of fingerprints proved by expert testimony sufficiently referred to defendant’s entire 

pen packet).

On this record, the jury received sufficient evidence that appellant was the same 

person convicted in the Hays County and Potter County judgments. Appellant’s second 

issue is overruled.

Conclusion

Having overruled appellant’s two issues, we affirm the judgment of the trial court.

James T. Campbell

 Justice

Do not publish.