Mario Hernandez v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-19-00424-CR
___________________________

MARIO HERNANDEZ, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1513167D

Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
 MEMORANDUM OPINION

Mario Hernandez appeals from his conviction for aggravated robbery with a

deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2). In his sole point of error,

Hernandez argues that the evidence was insufficient for the jury to find that he

committed aggravated robbery as a principal. We will overrule Hernandez’s point,

modify the judgment to reflect the correct sentencing date and to show that

Hernandez pleaded “not guilty,” and affirm the judgment as modified.

I. Background

In the early morning hours of July 15, 2017, several theft incidents occurred in

northwest Fort Worth. At about 2:00 a.m., the first victim opened her boyfriend’s

front door to see three men surrounding her running but locked car. 1 After being

spotted, the men slowly walked to a convenience store next door. The victim then

walked out to her car to turn it off. Before opening her car door, the victim heard one

of the men fire a shot behind her, and she ran along the driver’s side to the back of

the car. The man stood in front of her car and pointed a gun in the victim’s direction

until she ran back into the house saying, “forget it, just take it.” The victim described

the men as Hispanic with dark hair, not very tall, slender, and wearing hoodies. The

victim and her boyfriend both testified that the men left from the convenience store’s

parking lot in a faded red, hoodless SUV. Footage from the store’s camera showed a

1
The victim left her car running while visiting her boyfriend because she had to
jump-start the car earlier and was afraid it would die again.

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red SUV leaving the parking lot at 1:58 a.m. The front passenger was wearing a light-

colored shirt.

At approximately 5:00 a.m., 82-year-old Bobbie Davis was watching a movie in

his garage when something caught his attention. 2 Davis, who is hard of hearing,

turned to see two men standing behind him. Davis described one of the men as “tall

and thin” and the other as “a little bit shorter and thin, too.” Both men wore “cutoff

short pants,” tennis shoes, hoodies, and face masks, and had what Davis described as

“mag lights” on top of their heads. Because the men wore face masks and kept the

lights directed at Davis’s face, Davis could not see their faces. Both men jabbed and

punched “big automatic” pistols in Davis’s stomach. Davis testified that he feared that

the shorter man’s gun would fire because that man was more nervous and jabbed at

Davis more frequently than the taller one. Davis could not hear their demands and

told the two men he was hard of hearing. Davis asked, “[W]hat do y’all want, money?”

and handed over $150 that he had in cash.

The taller gunman then pointed his gun towards Davis’s house, and Davis

yelled, “[Y]ou got my money . . . just go on and leave, just get out.” Davis’s stepson,

Adam Bravo, heard yelling and entered the garage. Bravo saw a “small and scrawny”

“kid” around 5′5″ standing in the garage. That person ran down the street to a red,

hoodless SUV with two other men that Bravo had not seen before. Davis and Bravo

Davis testified that he regularly wakes at 4:00 a.m., showers, and then watches
2

movies or paints in his garage until daylight.

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heard a gunshot ring out before the SUV drove off. A fired 9 millimeter casing was

later collected from the street in front of Davis’s house.

While responding to calls related to the two theft incidents, Sergeant Francisco

Solano with the Fort Worth Police Department learned that the assailants in both

incidents were Hispanic men in a burgundy red, hoodless SUV. Sergeant Solano also

learned there was at least one firearm. During a call about a third theft incident in the

area, Sergeant Solano, based on his experience working robberies and his familiarity

with the area, “posted up” on West Long Avenue to locate the SUV. Sergeant Solano

located a burgundy red, hoodless SUV traveling eastbound on West Long Avenue and

initiated a traffic stop. Four young Hispanic men with black hair were inside the SUV:

Hernandez, Ryan Delgado, Enrique Perez, and Jose Garcia. On approaching the

driver’s side, Sergeant Solano saw Hernandez, who was sitting behind the front

passenger’s seat, conceal an item under the seat. After being removed from the SUV

and identified, Hernandez escaped Sergeant Solano’s vehicle,3 removed one of the

handcuffs, and hid in a backyard before officers apprehended him again. Three guns

were later found in the SUV: a 9 millimeter, a .40 caliber, and a BB gun.

At trial, the State introduced evidence and expert testimony that the fired

casing found in front of Davis’s house was fired from the 9 millimeter gun found in

3
Sergeants’ vehicles are not equipped with a cage, and the door handle is
accessible. Normal patrol vehicles have cages and a metal plate placed on the door
handles.

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the SUV. The State also introduced evidence and expert testimony that the .40 caliber

gun could not be fired due to a backwards cartridge in the chamber. Further, only

Hernandez’s fingerprints were on the magazine of the 9 millimeter, to the exclusion

of the SUV’s other three occupants.

At trial, Sergeant Solano and Sergeant Carlos Cespedes identified the other

three SUV occupants from pictures taken the day of the robbery. In the pictures,

Delgado is wearing a light-colored shirt, long pants, and socks with sandals; Perez is

wearing a blue shirt, shorts, and tennis shoes; and Garcia is wearing a black shirt,

shorts, and tennis shoes. The State played police body-camera footage showing

Hernandez wearing a black shirt, black shorts, and tennis shoes. Sergeant Solano

identified Perez as the driver and owner of the SUV, Delgado as the front passenger,

Hernandez as the rear passenger, and Garcia as the rear driver’s-side passenger.

Hernandez was indicted for aggravated robbery with a deadly weapon against

Davis, and a jury found him guilty. See id. The jury also found a repeat-offender

enhancement to be true and assessed his punishment at 40 years’ confinement and a

$10,000 fine. The trial court sentenced Hernandez accordingly.

II. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.

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Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Queeman, 520 S.W.3d at 622. The factfinder alone judges the evidence’s weight

and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622.

We may not re-evaluate the evidence’s weight and credibility and substitute our

judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine

whether the necessary inferences are reasonable based on the evidence’s cumulative

force when viewed in the light most favorable to the verdict. Murray v. State,

457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State, 514 S.W.3d 227,

232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not

engage in a ‘divide and conquer’ strategy but must consider the cumulative force of all

the evidence.”). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict, and we must defer to that resolution. Murray,

457 S.W.3d at 448–49.

The standard of review is the same for direct- and circumstantial-evidence

cases; circumstantial evidence is as probative as direct evidence in establishing guilt.

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The alternative-

reasonable-hypothesis theory does not apply in reviewing evidentiary sufficiency. Tate

v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (“Although the State must prove

that a defendant is guilty beyond a reasonable doubt, the State’s burden does not

6
require it to disprove every conceivable alternative to a defendant’s guilt.”); Temple v.

State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013); Wise v. State, 364 S.W.3d 900,

903 (Tex. Crim. App. 2012) (“For the evidence to be sufficient, the State need not

disprove all reasonable alternative hypotheses that are inconsistent with the

defendant’s guilt.”).

III. Sufficiency of the Evidence

In his sole point of error, Hernandez argues that the evidence is insufficient to

support his conviction because there was no evidence to show he was a primary actor

in the Davis robbery. The State argues that the circumstantial evidence, and the

inferences properly drawn from it, were sufficient for the jury to reasonably conclude

that Hernandez was a primary actor in the robbery. We agree with the State.

To support his sole point of error, Hernandez advances three arguments:

(1) there were no factually supported inferences identifying Hernandez as a primary

actor;4 (2) the State gave improper argument; and (3) the jury reached an irrational

4
As part of his identity argument, Hernandez argues that a particular jury note
reflects the jury’s concern that he was an accomplice, not a primary actor. But a jury’s
motive in sending a note is not relevant to a sufficiency review. See Smith v. State,
No. 2-05-322-CR, 2006 WL 1494616, at *3 n.2 (Tex. App.—Fort Worth June 1, 2006,
pet. ref’d) (per curiam) (mem. op., not designated for publication) (sending jury notes
does not impact sufficiency analysis); cf. Cox v. State, 931 S.W.2d 349, 353 (Tex.
App.—Fort Worth 1996) (“The record does not reveal whether the jury’s inquiry was
due to prejudice, sympathy, or mere curiosity. In order to presume a motive behind
the jury’s question, we would have to indulge in speculation, and we will not.”), pet.
dism’d, improvidently granted, 951 S.W.2d 5 (Tex. Crim. App. 1997).

7
decision based on the State’s inflammatory use of extraneous conduct.5 Hernandez

concedes—and we agree—that his second and third arguments were not preserved

because he failed to object at trial, so we will not address them. See Tex. R. App. P.

33.1(a)(1).

Hernandez’s remaining argument revolves around identification.6 Hernandez

argues that because there is no direct evidence of the robbers’ identities, there is no

evidence establishing his identity as one of the robbers. In support of his argument,

Hernandez points to the following evidence:

• Davis and Bravo did not identify Hernandez as one of the robbers.

• Bravo identified one actor as “white complected,” which Hernandez is

not.

5
Hernandez also argues that he could not be convicted as a party because the
State never requested a parties charge for the jury. Because we hold the evidence is
sufficient to uphold Hernandez’s conviction as charged, we decline to address this
argument.
6
Hernandez argues two distinct alternative theories for who the primary actor
could be. First, because three other individuals were present in the SUV, all
passengers had equal access to the gun and could be the primary actor. Second,
because the SUV was apprehended over an hour after the Davis robbery and the SUV
passengers all lived near each other, the identity of the SUV passengers could have
changed, and the primary actor could have been dropped off before the traffic stop.
The State is not required to disprove all reasonable alternative hypotheses, and the
Texas Court of Criminal Appeals explicitly rejected the alternative-hypothesis
analytical construct in Geesa v. State, 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991).
See Wise, 364 S.W.3d at 903.

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 • Hernandez was not wearing a hoodie or a mask, and neither was found

on or near his person or in the red SUV.

• Hernandez’s fingerprints were not on the trigger and grip of the

9 millimeter, nor could his fingerprints on the magazine be dated.

• Hernandez did not have any stolen property on his person, and his

fingerprints and DNA were not found on any of the stolen items in the

SUV.

“A person commits robbery if, in the course of committing theft and with

intent to obtain or maintain control of the property, he intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death.” Hernandez v.

State, 501 S.W.3d 264, 268 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing Tex. Penal

Code Ann. § 29.02(a)(2)). If a person uses or exhibits a deadly weapon, the offense

becomes aggravated robbery. Tex. Penal Code Ann. § 29.03(a)(2). The State may

prove identity by direct or circumstantial evidence, coupled with all reasonable

inferences from the evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App.

2009). If the State relies on circumstantial evidence for identification, the evidence is

sufficient when the conclusion is warranted by the combined and cumulative force of

all the incriminating circumstances. See Temple, 390 S.W.3d at 359–60.

Here, the jury could have found beyond a reasonable doubt that Hernandez

was a principal actor who robbed Davis from the following circumstantial evidence:

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• The first victim of the night described three Hispanic men with dark hair

who were slender and not very tall. One man fired a gun.

• That first victim and her boyfriend described a faded red, hoodless SUV

leaving the convenience store next door. Footage from the convenience

store’s camera showed a red SUV leaving the parking lot. The front

passenger can be seen wearing a light-colored shirt.

• Davis testified that he was robbed by two men, both wearing “cutoff

short pants” and tennis shoes, but one man was “tall and thin” while the

other was “a little bit shorter and thin, too.” Davis also said he was

scared as both men had “big automatic” pistols and both jabbed and

punched him in the stomach.

• Bravo heard yelling and entered the garage where he saw a short, thin

man.

• Davis and Bravo heard a gunshot before a red, hoodless SUV left from

across the street from Davis’s house. Police collected a fired 9 millimeter

casing from the street in front of Davis’s house.

• While responding to the first two theft incidents, Sergeant Solano

learned the assailants were Hispanic men in a burgundy red, hoodless

SUV with at least one gun. Sergeant Solano located a matching SUV

with four young Hispanic men inside.

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 • Sergeant Solano saw Hernandez, sitting in the rear passenger seat, put

something under the seat. Sergeant Solano and Sergeant Cespedes

identified the four SUV occupants, including Hernandez.

• After being placed in Sergeant Solano’s vehicle, Hernandez temporarily

escaped.7

• Three guns were located in the SUV including a 9 millimeter that was

the source of the casing found in front of Davis’s house.

• Only Hernandez’s fingerprints were found on the 9 millimeter’s

magazine.

• Pictures taken of the other three SUV occupants on the day of the

robbery show Delgado wearing a light-colored shirt, long pants, and

socks with sandals; Garcia wearing a black shirt, shorts, and tennis shoes;

and the relatively heavy-set Perez wearing a blue shirt, shorts, and tennis

shoes.

From the last bit of summarized evidence, the jury could have reasonably

eliminated Perez and Delgado as the gunmen who robbed Davis. Delgado was

wearing neither short pants nor tennis shoes; Perez, a heavy-set man, did not match

7
“Flight is a circumstance from which guilt may be inferred.” Cantrell v. State,
731 S.W.2d 84, 92 (Tex. Crim. App. 1987).

11
Davis’s or Bravo’s descriptions.8 This leaves Hernandez and Garcia, both of whom

are thin and were wearing shorts the day of the robbery. Moreover, the spent casing

came from the 9 millimeter found in the vehicle, and only Hernandez’s fingerprints

were found on that gun.

From all the circumstantial evidence and the reasonable inferences drawn from

it, a rational jury could have found beyond a reasonable doubt that Hernandez was

one of the two gunmen with “big automatic” pistols who intentionally or knowingly

threatened or placed Davis in fear of imminent bodily injury or death while

committing theft with an intent to obtain or maintain control of Davis’s $150.

Viewing the evidence in the light most favorable to the verdict, we hold the evidence

is sufficient to support Hernandez’s aggravated-robbery-with-a-deadly-weapon

conviction. We overrule Hernandez’s sole point of error.

IV. Modification of the Judgment

The trial court’s judgment does not show Hernandez’s plea to the offense. The

State asks us to modify the trial court’s judgment to reflect that Hernandez pleaded

“not guilty.” While examining the trial court’s judgment, we noticed another clerical

error in the judgment: the sentencing date is incorrect.

8
While there is testimony from Bravo and Sergeant Solano about one gunman
or one gun, the jury also heard and was permitted to weigh their testimony against
Davis’s testimony of two gunmen with two guns jabbing him in the stomach.

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 On the first day of trial, Hernandez pleaded “not guilty” to the offense. The

next day, Hernandez voluntarily absented himself from the remainder of trial. The

jury found him guilty and assessed punishment against Hernandez in absentia.9 That

same day, the trial court sentenced Hernandez in absentia in accordance with the

jury’s verdict. Ten months later, Hernandez was apprehended, and the trial court

sentenced him in person in accordance with the jury’s verdict.10 Hernandez then

appealed.

The trial court’s judgment does not reflect the correct sentencing date or

Hernandez’s “not guilty” plea. It is well established that we may modify a judgment to

make it speak the truth. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992); see also Tex. R. App. P. 43.2(b). When the oral pronouncement of a sentence

varies from the written judgment, the oral pronouncement will control. Ex parte

Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citing Coffey v. State, 979 S.W.2d

326, 328 (Tex. Crim. App. 1998)). Here, because the written judgment does not reflect

9
In a felony prosecution, the defendant must be personally present at trial, but
if he “voluntarily absents himself after pleading to the indictment or information, or
after the jury has been selected when trial is before a jury, the trial may proceed to its
conclusion.” Tex. Code Crim. Proc. Ann. art. 33.03; see id. art. 37.06 (“In felony cases
the defendant must be present when the verdict is read unless his absence is wil[l]ful
or voluntary.”).
10
Generally, a defendant must be sentenced in person. See id. art. 42.03(1)(a). If
no sentence is pronounced or is improperly pronounced, a trial court may later
properly pronounce the sentence, and a defendant may then appeal. See Clemons v.
State, 414 S.W.2d 940, 941 (Tex. Crim. App. 1967); Pruitt v. State, 737 S.W.2d 622,
623 (Tex. App.—Fort Worth 1987, pet. ref’d).

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Hernandez’s “not guilty” plea or the correct sentencing date—November 11, 2019—

we will modify the judgment accordingly.

V. Conclusion

We modify the judgment (1) to delete and replace “1/17/2019” as the “Date

Sentence Imposed” with “11/11/2019” and (2) to add “Not Guilty” as the “Plea to

the Offense.” Having overruled Hernandez’s sole point of error, we affirm the

judgment as modified. See Tex. R. App. P. 43.2(b).

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: July 1, 2021

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