NUMBER 13-13-00657-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARIO ALBERTO ALANIZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
The State charged Mario Alberto Alaniz with robbery, a second degree felony, to
which Alaniz pleaded not guilty. See TEX. PENAL CODE ANN. § 29.02 (West, Westlaw
through 2015 R.S.). A Cameron County jury later found Alaniz guilty as charged, and
the trial court assessed his punishment at four years’ imprisonment with the Texas
Department of Criminal Justice’s Institutional Division. By four issues, Alaniz asserts
that: (1) the evidence is insufficient to sustain his conviction for robbery under the law of
parties; (2) the trial court reversibly erred by allowing the State to introduce extraneous
evidence related to an extraneous forgery offense; (3) the trial court reversibly erred by
not giving the jury a limiting instruction regarding an extraneous offense; and (4) the trial
court reversibly erred by admitting into evidence Alaniz’s statement to police without
proper translation into English. We affirm.
I. BACKGROUND
In the late afternoon of February 9, 2013, Odulia Anderson exited a Wal-Mart in
Brownsville and walked toward her parked vehicle when a black Nissan Sentra
approached her. An unknown female passenger exited the rear driver’s side of the
Sentra and took Anderson’s purse. After a brief struggle, the unknown female returned
to the Sentra with Anderson’s purse, and the car sped away. Anderson sustained
injuries to her head, back, knee, and one of her arms. Anderson was, however, able to
provide the license plate number of the Nissan Sentra to police; the vehicle was registered
to Mary Lou Arredondo.
Police investigators eventually turned their attention from the scene of the robbery
to an H-E-B gas station where an individual, later identified as Arredondo, unsuccessfully
attempted to cash a $40 check in Anderson’s name along with Anderson’s driver’s
license. Police later obtained video surveillance footage from the gas station. In the
video, Alaniz appears to ask the station’s clerk to borrow a pen and later returns to his
vehicle. The gas station’s clerk, Janie Castillo, identified Alaniz at trial as the individual
who asked to borrow the pen, and further testified that Alaniz took the pen and returned
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to the front passenger seat of a small black vehicle. A short time later, Castillo explained
that Arredondo exited the driver’s side of the black vehicle and attempted to cash the $40
check with Anderson’s driver’s license. When Arredondo experienced issues with
cashing the check, Castillo testified that Arredondo returned to her vehicle and drove
away.
When later questioned by Brownsville police investigator Eduardo Reyes, Alaniz
admitted in a recorded interview that he had been “driving around” and “partying” with
Arredondo and another female on February 9, 2013. Alaniz also admitted to Investigator
Reyes that they were “all high.” Alaniz stated that he had traveled from Wal-Mart to a
dumpster behind a coffee shop, and later to the H-E-B gas station. On this information,
police investigated the dumpster behind the coffee shop and discovered Anderson’s
purse and other items that were located inside of the purse. Alaniz acknowledges that
he asked the H-E-B gas station clerk for a pen, but stated that he did not know what the
pen was for, despite seeing the check and the driver’s license belonging to Anderson in
the car. Investigator Reyes opined that the fact that Alaniz remained in the vehicle
following Anderson’s robbery shows that he had knowledge of the plan to rob Anderson
and that “he was a willing participant.”
At the conclusion of the one-day trial, the jury found Alaniz guilty as charged, and
the trial court sentenced Alaniz to four years’ imprisonment. This appeal followed.
II. SUFFICIENCY CHALLENGE
By his first issue, Alaniz asserts that the evidence is insufficient to prove that he
was a party to the robbery.
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A. Standard of Review and Applicable Law
In reviewing sufficiency of evidence to support a conviction, we consider all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.
App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in
the light most favorable to the verdict, we defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the
weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for
every fact to point directly and independently to the guilt of the accused; it is enough if
the finding of guilty is warranted by the cumulative force of all incriminating evidence.
Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct
jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that
accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was tried.
Id. Under a hypothetically correct jury charge in this case, Alaniz is guilty of robbery if,
in the course of committing theft and with intent to obtain property, he intentionally or
knowingly caused bodily injury to another. See id. § 29.02(a) (West, Westlaw through
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2015 R.S.). A person commits a theft if he unlawfully appropriates property with intent
to deprive the owner of property. See id. § 31.03(a) (West, Westlaw through 2015 R.S.).
A hypothetically correct charge in this case would allow the jury to convict Alaniz
under “the law of parties.” See id. § 7.02 (West, Westlaw through 2015 R.S.). Under
the law of parties, a person is criminally responsible for an offense committed by the
conduct of another, if: acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. Id. In determining whether the accused participated as a party,
the court may look to events occurring before, during and after the commission of the
offense, and may rely on actions of the defendant which show an understanding and
common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex.
Crim. App. 1994).
B. Discussion
On appeal, Alaniz solely argues that the evidence is insufficient to prove that he
was a party to the robbery because he was merely present while the robbery took place.
We disagree. While Alaniz is correct to argue that mere presence of a person at the
scene of a crime, or even flight from the scene, without more, is insufficient to support a
conviction as a party to the offense, see Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim.
App. 2012), when viewing all of the evidence collectively and allowing the jury to draw
reasonable inferences from the evidence, we conclude that the evidence is sufficient to
find Alaniz guilty of robbery under the law of parties.
First, the evidence is undisputed that Alaniz was a passenger of the Nissan Sentra
used in this robbery before the vehicle arrived at the Wal-Mart store, when it arrived at
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the dumpster, and ultimately, when it stopped at the H-E-B gas station after the robbery.
Although Alaniz denied his knowledge of the robbery or his involvement in its ultimate
execution, the evidence shows that several items from Anderson’s stolen purse were
found in the coffee shop’s dumpster that Alaniz told police about. Additionally, the
evidence shows that approximately twenty minutes after the robbery, Alaniz borrowed a
pen from a gas station clerk and took it back to Arredondo’s vehicle. A short time after
borrowing the pen, the evidence shows that Arredondo returned to the gas station clerk
and attempted to cash a check from Anderson’s checkbook using Anderson’s driver’s
license. Although retrieving a pen is not per se an unlawful act or an element of a crime,
the jury could have reasonably concluded that the pen retrieved by Alaniz was used by
Arredondo to fill out the check that was unlawfully taken from Anderson during the
robbery, and Arredondo unsuccessfully attempted to cash it. A reasonable fact finder
could have concluded that this post-robbery act shows an understanding and common
design by Alaniz and the others to commit the robbery. Alaniz’s statement to the police
that he did not know what the pen was to be used for is contrary evidence which the jury
was entitled to disbelieve. See Brooks, 323 S.W.3d at 899. Finally, Alaniz told police
that he saw Anderson’s checks and driver’s license at the time that he borrowed the gas
station clerk’s pen.
Accordingly, after examining all of the evidence in the light most favorable to the
verdict, as well as looking to events occurring before, during and after the commission of
the robbery, we conclude that Alaniz’s actions and involvement with the principal actors
of the robbery show an understanding and common design on his part to take part in the
robbery. See Ransom, 920 S.W.2d at 302. Therefore, we hold that the evidence is
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legally sufficient to support Alaniz’s conviction. Alaniz’s first issue is overruled.
III. EXTRANEOUS EVIDENCE
By his second and third issues, Alaniz asserts that the trial court committed
reversible error by: (1) allowing the State to introduce extraneous evidence related to a
pending forgery indictment against him; and (2) failing to give a limiting instruction
regarding this extraneous offense. Because these two issues are related, we will
address them together.
A. Preservation of Error
The State argues that Alaniz did not properly preserve his second issue for
appellate review. We disagree. As a prerequisite to presenting a complaint for
appellate review, the record must show that the complaint was made to the trial court by
a timely objection stating the grounds for the ruling that the complaining party sought from
the trial court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context, and that the trial court ruled
on the objection. TEX. R. APP. P. 33.1. In this case, Alaniz’s trial counsel objected prior
to Investigator Reyes testifying about the purported forged check that Arredondo
presented at the H-E-B gas station. Although a bench conference took place off the
record following Alaniz’s objection, the trial court was made aware—on the record—
during a pre-trial motion in limine hearing of Alaniz’s complaints under rule of evidence
404(b) regarding Investigator Reyes’s testimony, and the trial court asked the parties to
“approach the bench” when the issue came up again at trial. Additionally, Investigator
Reyes was permitted to testify about the alleged forged check, and thus we infer that
Alaniz’s objection was overruled. See id. Because we conclude that this issue was
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properly preserved, we will now address its merits.
B. Standard of Review and Applicable Law
We review a trial court's decision to admit or exclude evidence over a rule 404(b)
objection for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1990) (en banc). Stated another way, we will not disturb a trial court's ruling if
it was “at least within the zone of reasonable disagreement.” Id. Once a complaint is
lodged, it is incumbent upon the proponent of extraneous bad act evidence, in this case
the State, to satisfy the trial court that the “other crime, wrong, or act” has relevance apart
from its tendency “to prove character of a person in order to show that he acted in
conformity therewith.” Id. (citing TEX. R. EVID. 404(b)). If the trial court determines the
evidence has no relevance apart from character conformity, then the evidence is
absolutely inadmissible, and the trial court has no discretion to admit it. Id. However,
the proponent of the evidence may persuade the trial court that the “other crime, wrong,
or act” has relevance apart from character conformity—i.e., that it tends to establish some
elemental fact, such as identity or intent; that it tends to establish some evidentiary fact,
such as motive, opportunity or preparation, leading inferentially to an elemental fact; or
that it rebuts a defensive theory by showing, e.g., absence of mistake or accident. TEX.
R. EVID. 404(b); Montgomery, 810 S.W.2d at 387–88.
Additionally, evidence of extraneous offenses that are indivisibly connected to the
charged offense and necessary to the State's case in proving the charged offense may
be admissible as relevant evidence to explain the context of the offense for which the
defendant is on trial. Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992)
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C. Discussion
The complained-of evidence in this case relates to the events that transpired at the
H-E-B gas station. The State argues that this evidence is admissible over Alaniz’s rule
404(b) objection because it is “same transaction contextual evidence,” and as a result,
did not require a limiting instruction. We agree with both of the State’s contentions.
Same transaction contextual evidence is deemed admissible as a so-called
exception to the propensity rule where several crimes are intermixed, or
blended with one another, or connected so that they form an indivisible
criminal transaction, and full proof by testimony, whether direct or
circumstantial, of any one of them cannot be given without showing the
others. The reason for its admissibility is simply because in narrating the
one it is impracticable to avoid describing the other, and not because the
other has any evidential purpose. Necessity, then, seems to be one of the
reasons behind admitting evidence of the accused's acts, words and
conduct at the time of the commission of the offense.
Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (internal citations and
quotations omitted).
The State’s purpose for admitting the evidence of Alaniz borrowing a pen and
Arredondo’s attempt to cash one of Anderson’s stolen checks is intermixed and blended
with the underlying robbery because it shows an agreement, plan, and understanding
between Alaniz and the other passengers of the Nissan Sentra to rob Anderson. See id.
We hold that this evidence was admissible as same transaction contextual evidence
because it was essential to understanding the context and circumstances of the robbery
and Alaniz’s role as a party to the offense, and the trial court did not abuse its discretion
by admitting it. Likewise, because we conclude that this evidence is admissible as same
transaction contextual evidence, it was not subject to the requirement of a limiting
instruction. See Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim. App. 1993).
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Alaniz’s second and third issues are overruled.
IV. ALANIZ’S STATEMENT
By his fourth and final issue, Alaniz asserts that the trial court reversibly erred by
admitting into evidence his video statement to police that was not properly translated into
English pursuant to rule 1009 of the rules of evidence.
A. Standard of Review and Applicable Law
A trial court's decision to admit or exclude evidence is reviewed under an abuse of
discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We
will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable
disagreement. Id.
Rule of evidence 1009(a) (Translating a Foreign Language Document) states:
A translation of foreign language documents shall be admissible upon the
affidavit of a qualified translator setting forth the qualifications of the
translator and certifying that the translation is fair and accurate. Such
affidavit, along with the translation and the underlying foreign language
documents, shall be served upon all parties at least 45 days prior to the
date of trial.
TEX. R. EVID. 1009(a). However, a party may offer the live testimony of a qualified
translator to translate a foreign language document. See id. R. 1009(e); see also Peralta
v. State, 338 S.W.3d 598, 606 (Tex. App.—El Paso 2010, no pet.) (“In the event the time
requirements of subsection (a) are not met, a party may nevertheless introduce the
translation at trial either by live testimony or by deposition testimony of a qualified expert
translator.”).
B. Discussion
Alaniz’s audio statement to police contained both English and Spanish. Although
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the record is clear that the State did not provide a written translation of the Spanish
portions of Alaniz’s statement under rule 1009(a), the trial court called a certified Spanish-
to-English interpreter to translate the Spanish portions of the audio statement through live
testimony. The interpreter’s qualifications were not challenged by Alaniz’s trial counsel,
and the interpreter testified as needed while the audio was played for the jury. We hold
that this method of translation is permitted by rule 1009(e), and the trial court did not
abuse its discretion by admitting Alaniz’s statement. See id. R. 1009(e); Peralta, 338
S.W.3d at 606. We overrule Alaniz’s fourth issue.
V. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
8th day of October, 2015.
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