Opinion issued December 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00410-CR
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RICHARD RECIO, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case No. 1459599
MEMORANDUM OPINION
The State charged Appellant, Richard Recio, Jr., with robbery. 1 Appellant
pleaded not guilty. The jury found him guilty and sentenced him to 25 years’
1
See TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011), § 31.03(a) (Vernon Supp.
2015).
confinement after Appellant pleaded true to an enhancement paragraph. In two
issues on appeal, Appellant argues the trial court abused its discretion by denying
his motion for mistrial and the evidence is insufficient to support his conviction.
We affirm.
Background
Carlos Maldonado was on his way home from work around 10:00 at night on
June 19, 2014. A traveling train blocked his usual route home and he decided to try
to find another way home. He turned onto a side street.
Moments before, Arnold Pyle had been sitting in the garage of his home in
the same area. A man walked up to Pyle, displayed a gun, and asked Pyle if he
wanted to buy it. Pyle pointed out the gun had no bullets or clip, so it did not work.
The man insisted the gun did work. “I’ll show you.” The man walked into the street,
approached a car that had turned onto the street, and pointed the gun at it. The car
was Maldonado’s.
Maldonado stopped when he saw a man approaching his car with a gun
pointed at him. The man opened the driver’s side door, pulled Maldonado out, and
dragged him to the sidewalk. The man emptied Maldonado’s pockets and then left
in Maldonado’s car. After he left, Maldonado and Pyle saw another car parked
nearby take off quickly and follow Maldonado’s car. Maldonado saw the drivers
next to each other, talking as they drove down the street.
2
After Maldonado got up, Pyle offered his phone for Maldonado to call the
police. A few minutes later, police arrived. They got a description of the robber and
the car. Maldonado saw tattoos on the robber’s arms, and included that in the
description.
Two hours later, two of the officers that had arrived on the scene saw
Maldonado’s car pulling into a convenience store. The officers performed a stop
and got the passengers out of the car. The driver was Appellant’s brother. Appellant
was sitting in the front passenger seat. As he got out of the car, he placed
Maldonado’s phone on the roof of the car. While searching the car, the police found
a gun was found under the front passenger seat.2 Appellant had tattoos on his arms,
among other places.
After the scene was secured, police brought Maldonado to the convenience
store. Maldonado identified the car and cell phone as his. The next day, an
investigator showed Maldonado a photo array which included a picture of Appellant.
Maldonado identified Appellant as the man that robbed him. The investigator also
showed a photo array to Pyle. Pyle testified at trial that he is bad at recognizing
faces and could not identify in the array the man that had approached him that night.
2
After the gun was analyzed in police custody, it was determined that the gun was
designed to only shoot blanks.
3
At trial, Maldonado, speaking through an interpreter, described the sequence
of events for the robbery, the recovery of his possessions, and his identification of
Appellant in the photo array. He testified that the person he had identified in the
array was the person who had robbed him. He also performed an in-court
identification of Appellant as the person who robbed him.
On cross-examination, Appellant’s counsel asked Maldonado if the picture he
circled in the photo array was a picture of Appellant. Maldonado testified, “No.”
On redirect examination, the following exchange occurred:
Q. Now, your identification of [Appellant] though is back on that
day when you looked at that photo array?
A. Uh-huh. Yes.
Q. Was that based on your memory of being robbed?
A. Yes.
Q. And [Appellant] today in the courtroom does he look different
than he did back then?
A. Yes.
Q. In what way does he look different?
A. His hair.
Q. But when you identified him in the courtroom today is that still
based on your memory of seeing him the night that you were
robbed?
A. Yes.
4
Also at trial, Investigator D. Salinas, who had presented the photo array to
Maldonado the day after the offense, testified about the process of creating the photo
array. In response to a question from the State about what it means to put “a robbery
hold on somebody” that has been arrested, Investigator Salinas disclosed that
Appellant had initially been charged with “felon in possession of a firearm.” The
trial court excused the jury and instructed Investigator Flores to not testify about
Appellant’s prior criminal history. After that, the following exchange occurred:
[APPELLANT’S COUNSEL]: If I may Your Honor before the jury
comes back in obviously the answer was given before I had an
opportunity to object but I would object to the answer he was
being held in felon on possession of firearm would move for a
mistrial.
THE COURT: Overruled.
[APPELLANT’S COUNSEL]: Move for an instruction to the jury to
disregard any testimony that may have indicated that Mr. Recio
has any prior criminal history.
THE COURT: All right. I’ll grant that.
After the jury returned to the courtroom, the trial court told the jurors, “Ladies
and Gentlemen if you heard any testimony that suggested that the Defendant might
have any prior criminal history the Court’s going to instruct you not to consider that.
Disregard it and do not use it at all for your deliberations in this case in trial.”
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Sufficiency of the Evidence
In his second issue, Appellant argues the evidence is insufficient to support
his conviction.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single standard
of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This standard of
review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.
2013). Pursuant to this standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no
rational fact finder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We can
hold evidence to be insufficient under the Jackson standard in two circumstances:
(1) the record contains no evidence, or merely a “modicum” of evidence, probative
of an element of the offense or (2) the evidence conclusively establishes a reasonable
doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2788–89
& n.11; Laster, 275 S.W.3d at 518.
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The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). An appellate court presumes that the fact finder resolved any conflicts in the
evidence in favor of the verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing
the record, direct and circumstantial evidence are treated equally; circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235
S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence
can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.
Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
B. Analysis
Appellant does not challenge the evidence to support the claim that
Maldonado had been robbed. Instead, Appellant argues that the evidence was
insufficient to establish that he was the person who robbed Maldonado. For support,
Appellant asserts that
Maldonado testified that the person he picked out of the photo array
was not Appellant; Appellant and his brother look similar; Pyle – who
spoke face-to-face with the male seconds before the robbery – was
unable to identify Appellant; and, although[] Appellant was found in
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Maldonado’s vehicle[,] it was hours after the robbery and his brother
was the driver.
Appellant further asserts that the gun found in Maldonado’s car was never tested for
fingerprints and that Maldonado and Pyle were never shown photo arrays with
Appellant’s brother in them.
The identity of the person committing the offense is an element of the crime
that must be proved. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App.
1984) (holding State has burden of proving defendant committed charged offense);
Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d) (noting defendant’s identity can be proved by direct or circumstantial evidence
and that eyewitness identification is not necessary). Identity may be proven by direct
or circumstantial evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App.
2009); Greene, 124 S.W.3d at 792.
Maldonado testified that he saw the person robbing him approach the car,
pointing a gun at him. For a period of time during the incident, Maldonado was
prone on the ground and could not see the robber. But Maldonado saw the robber’s
face before and after that point. The next day, Maldonado identified Appellant in a
photo array. At trial, Maldonado testified that the person he had identified in the
array was the same person who had robbed him. He also performed an in-court
identification of Appellant as the person who robbed him.
8
Appellant argues that Maldonado’s post-robbery and in-court identifications
of him as the robber are insufficient because, during cross examination, Maldonado
testified that the photo of Appellant in the array was not actually a photo of
Appellant. After this, on redirect examination, Maldonado confirmed that he had
identified in the photo array the person who had robbed him and that his in-court
identification of Appellant was based on his memory of seeing him during the
robbery. On both direct and redirect examination, then, Maldonado confirmed that
he identified the person who had robbed him in the photo array and that Appellant
was the same person who had robbed him. Any conflicts in Maldonado’s testimony
during cross-examination was for the jury to resolve. See Clayton, 235 S.W.3d at
778.
Likewise, Appellant’s claims that he and his brother look alike, that Pyle
failed to identify him in a photo array, and that Appellant was not driving the car
when it was recovered were matters for the jury to weigh. See id. We must defer to
those determinations. See id.
Finally, Appellant’s complaints about what evidence is not in the record have
no bearing on our review. A sufficiency of the evidence review is based on the
evidence admitted at trial. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim.
App. 2001) (“When conducting a sufficiency review, we consider all the evidence
admitted.”). If that evidence is sufficient, we must affirm regardless of what other
9
evidence might have been admitted. See Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007) (holding courts review evidence in record in light most
favorable to verdict and determine whether rational jurors could have found essential
elements of crime beyond reasonable doubt).
We hold the evidence is sufficient to support the jury’s determination that
Appellant was the person that robbed Maldonado. We overrule Appellant’s second
issue.
Motion for Mistrial
In his first issue, Appellant argues the trial court abused its discretion by
denying his motion for mistrial.
A. Standard of Review
Challenging a trial court’s actions for denying a motion for mistrial is
reviewed for an abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.
App. 2004). We view “the evidence in the light most favorable to the trial court’s
ruling, considering only those arguments before the court at the time of the ruling.”
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). “We do not substitute
our judgment for that of the trial court, but rather we decide whether the trial court’s
decision was arbitrary or unreasonable.” Webb v. State, 232 S.W.3d 109, 112 (Tex.
Crim. App. 2007).
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B. Preservation
As an initial matter, the State argues that Appellant’s motion for mistrial has
not been preserved. At trial, the State asked Investigator Salinas about what it means
to put “a robbery hold on somebody” that has been arrested. While answering,
Investigator Salinas revealed that Appellant had initially been arrested for “felon in
possession of a firearm.” No objection was raised, but the trial court excused the
jury and instructed Investigator Salinas to not testify about Appellant’s prior
criminal history. After that, the following exchange occurred:
[APPELLANT’S COUNSEL]: If I may Your Honor before the jury
comes back in obviously the answer was given before I had an
opportunity to object but I would object to the answer he was
being held in felon on possession of firearm would move for a
mistrial.
THE COURT: Overruled.
[APPELLANT’S COUNSEL]: Move for an instruction to the jury to
disregard any testimony that may have indicated that Mr. Recio
has any prior criminal history.
THE COURT: All right. I’ll grant that.
The State argues that these objections and rulings were insufficient to preserve
error because Appellant failed to object before the trial court excused the jury. The
Court of Criminal Appeals has rejected this argument.
[T]he most important procedure is to press the specific objection to the
point of obtaining an adverse ruling, be that to the objection, the request
for an instruction, or the motion for mistrial. If the objection is
overruled, an adverse ruling is immediately obtained. It has even been
11
held that a request for a mistrial, which was overruled, followed by a
granted request for an instruction to disregard was a method deemed
sufficient to preserve the claim of error.
Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992) (internal citations
omitted).
The authority relied on by the State is not relevant. In Boyington, the
defendant’s counsel did not raise any kind of objection or motion following a
reference to the defendant’s prior criminal history, and the trial court did not take
any corrective action on its own initiative. Boyington v. State, 787 S.W.2d 469, 470–
71 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d). Here, Appellant’s counsel
moved for mistrial and obtained a ruling. The issue has been preserved for appeal.
C. Analysis
After Investigator Salinas testified that Appellant has initially been charged
with felon in possession of a firearm, the trial court excused the jury, instructed
Investigator Salinas to not make any further references to Appellant’s criminal
history, and instructed the jury to disregard any reference to Appellant’s criminal
history. Specifically, the trial court instructed the jury, “Ladies and Gentlemen if
you heard any testimony that suggested that the Defendant might have any prior
criminal history the Court’s going to instruct you not to consider that. Disregard it
and do not use it at all for your deliberations in this case in trial.” Appellant argues
the trial court abused its discretion by denying his motion for mistrial.
12
“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow
class of highly prejudicial and incurable errors.” Ocon, 284 S.W.3d at 884 (quoting
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A mistrial may be
used when faced with error so prejudicial that “expenditure of further time and
expense would be wasteful and futile.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.
Crim. App. 2003). In our abuse-of-discretion review, we balance three factors: (1)
the severity of the misconduct or the magnitude of the prejudicial effect, (2) the
measures adopted to cure the misconduct, and (3) the certainty of conviction absent
the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
For the first factor, Appellant’s criminal history was not relevant to any issue
before the jury at the guilt-innocence phase of the trial. But that alone does not
establish that the error was severe or irreparably inflammatory. See Gardner v. State,
730 S.W.2d 675, 697 (Tex. Crim. App. 1987) (“That appellant had been to the
penitentiary was undoubtedly inadmissible and prejudicial testimony, having no
relevance to any issue at the guilt stage of trial. However, that bare fact,
unembellished, was not so inflammatory as to undermine the efficacy of the trial
court’s instruction to disregard it.”). Simply referencing that the defendant has a
criminal history is not, in itself, considered irreparably inflamataory. See Francis v.
State, 445 S.W.3d 307, 320–21 (Tex. App.—Houston [1st Dist.] 2013), aff’d on
other grounds, 428 S.W.3d 850 (Tex. Crim. App. 2014). Here, Investigator Salinas
13
mentioned once that Appellant had a prior felony, but did not state the nature of the
offense or provide any other detail.
For the second factor, the trial court instructed the jury to disregard any
statements about Appellant’s criminal history and to not consider his criminal
history in their deliberations. An instruction to disregard is presumed effective
unless the particular facts imply otherwise. Waldo v. State, 746 S.W.2d 750, 754
(Tex. Crim. App. 1988). “Ordinarily, a prompt instruction to disregard will cure
error associated with an improper question and answer, even one regarding
extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)
(citing Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992)). As our
analysis of the third factor reflects, nothing in the record indicates that the instruction
to disregard was not effective.
For the third factor, there is a strong certainty of conviction without the
reference to Appellant having a prior felony conviction. Maldonado saw the robber
at the beginning and end of the robbery. The robber had distinctive tattoos on his
arms that Maldonado could see. Appellant was arrested a little more than two hours
after the offense. Maldonado’s description of the robber matched Appellant’s
appearance, including location of tattoos. Appellant was in Maldonado’s car and
had Maldonado’s cell phone in his hand. A gun was located under the front
14
passenger seat, where Appellant had been sitting. The day after the robbery,
Maldonado identified Appellant as the robber in a photo array.
Based on these factors, we hold the trial court did not abuse its discretion by
denying Appellant’s motion for mistrial. We overrule Appellant’s first issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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