Opinion issued November 17, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00957-CR
———————————
RICHARD RENE RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1404642
OPINION
A jury convicted appellant, Richard Rene Rivera, of the third-degree felony
offense of racing without a license.1 The trial court assessed his punishment at two
1
See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (West Supp. 2016).
years’ confinement, suspended for two years, and a $2,000 fine. In eleven issues on
appeal, appellant contends: (1) the State failed to present sufficient evidence that he
conducted a horse race without a license as alleged in the indictment; (2)–(3) the
trial court erroneously allowed two police officers to testify that, in their opinion,
appellant was guilty of helping to conduct a horse race; (4)–(6) the trial court
erroneously allowed the State to introduce evidence that appellant’s wife committed
the extraneous offense of impersonating a police officer because the evidence was
irrelevant, unduly prejudicial, and constituted improper character evidence; (7)–
(9) the trial court erroneously allowed the State to introduce evidence that
appellant’s wife committed the extraneous offense of being a party to an illegal bet
because the evidence was irrelevant, unduly prejudicial, and constituted improper
character evidence; (10) the trial court erroneously admitted testimony of statements
made to another security officer because the statements were irrelevant and made
outside of appellant’s presence; and (11) the trial court erroneously included an
instruction on law of parties in the jury charge.
We reverse and render a judgment of acquittal.
Background
This case grew out of an investigation of a racetrack in Crosby, Texas, for a
violation of the Texas Racing Act.
2
Appellant was a Department of Public Safety (“DPS”) trooper and the
coordinator of outside jobs for the DPS. In 2008, he began working an extra job
providing security at the El Herradero Ranch in Crosby. In 2013, the owners of the
ranch added a racetrack to the property. In early 2013, Agent J. Duck, with the
Criminal Investigation Division of DPS, began investigating the racetrack to
determine whether illegal betting on horse races was occurring at this property. In
2014, appellant was indicted, tried, convicted, and sentenced under the Texas Racing
Act for conducting a horse race without a racetrack license when he knew or should
have known that another person was betting on the final outcome of the race.
Agent Duck testified that, in early 2013, he and the Criminal Investigation
Division of DPS began investigating the racetrack that had been added at the El
Herradero Ranch to determine whether illegal betting on horse races was occurring
at this property. He testified that, under the Texas Racing Act, betting on the
outcome of horse races may only occur at racetracks that are licensed by the Texas
Racing Commission and may only occur between the patron and the racetrack itself,
but may not occur between patrons. The racetrack at the El Herradero Ranch was
not licensed by the Texas Racing Commission.
Agent Duck sent Investigator Garcia and Agent J. Aguillera to El Herradero
Ranch undercover as patrons on approximately eight different dates throughout
2013, beginning on February 23, 2013, to record what they witnessed using both
3
audio and video equipment. Agent Duck instructed the agents to discover “who was
running things inside the racetrack,” to determine if betting was occurring, and to
determine if the individuals in charge of the racetrack knew that betting was
occurring. The property had a parking area, an area for concession stands, a DJ, an
elevated area for photo-finish cameras, starting gates, a straight-line dirt track, and
fences, along which the patrons would stand to watch the races.
El Herradero Ranch personnel handed out schedules of the races that occurred
each day and that said, in both English and Spanish, “gambling prohibited.” Signs
located throughout the property also said “gambling prohibited.” Agent Duck
testified that, despite these signs, “it was blatantly obvious once we got in there that
gambling was going on.” Agent Duck testified that the El Herradero Ranch made
money by charging a $20 entrance fee, by selling alcohol and food at a concession
stand, and by selling “photo finishes and winner circle photographs [and] DVD’s as
well.”
Agent Duck agreed with the State that his investigation uncovered no
evidence that the racetrack or the owners of the track were taking bets from patrons.
If that was occurring, Agent Duck agreed that it was not happening “out in the open.”
Agent Duck testified that betting among patrons, however, did occur “out in the
open.” He stated:
The way that the bets would take place was everyone would line up
along the rail of [the] racetrack before the race. The horses would walk
4
by with other horses and riders. As the horses are walking by and
everyone is getting a look at them, it would just be people betting back
and forth to one another. They would be asking, [‘]I like the one on
this side or the one [on] that side[,’] determining a particular horse.
They would also state which amount they would like to bet.
When he viewed the videos from the undercover agents, Agent Duck was able to
witness betting occurring between patrons.
Agent Duck testified that on the first day he sent officers undercover to the El
Herradero Ranch, February 23, 2013, the officers witnessed appellant, a DPS
Trooper, working an extra job as the head of security at the property. Appellant was
present at the track on six of the eight days that the agents conducted undercover
surveillance. Appellant wore his DPS uniform while he was at the property, and it
was “obvious” that he was not there as a patron. Agent Duck testified that appellant
“was working at the racetrack, showing a command presence. He would pull a rope
across the racetrack and allow patrons to pass. He would check people and make
sure they weren’t bringing in beer from outside since they sold beer there.” Agent
Duck stated that other police officers were at the property working security, as well
as “an individual there who was dressed as a police officer and impersonating [but
who] was not a police officer.” Agent Duck identified this individual as Consuela
Rivera, appellant’s wife.2 Appellant objected to this testimony on relevance
2
The undercover officers testified that, on various occasions, Consuela Rivera wore
either a peace officer’s uniform with a state seal or a shirt that had her name and
5
grounds, Rule 403 grounds, and Rule 404(b) grounds. The trial court overruled these
objections and allowed Agent Duck to testify that Consuela Rivera, who was not a
police officer, wore an officer’s uniform while working security at the property.
Agent Duck testified that “[i]t was apparent that Mr. Rivera was in charge” of
the other officers at the property and that appellant would coordinate the officers’
schedules. He also stated that police officers working extra jobs “still enforce the
laws” and “still provide a command presence.” If an officer sees a crime occur while
he is working an extra job, he is “bound to act on that appropriately and make the
arrest or whatever action needs to be taken.”
On re-direct examination, the State asked Agent Duck about the types of
actions appellant performed in providing security at the El Herradero Ranch. Agent
Duck testified that officers observed appellant “pulling [a] rope across the track,”
and he clarified that, in between the races, patrons were allowed to walk around the
property and appellant “would pull the rope across the track to allow patrons to get
across safely without having a run in with one of the horses.”
Agent Duck and the State had the following exchange:
[The State]: So were there times when [appellant] allowed
people to walk and times when he stopped
people from walking on the track?
[Agent Duck]: Yes, ma’am.
patches and that identified her as a police officer. Appellant testified that Consuela
“wore a generic uniform” and carried a firearm.
6
[The State]: Did that aid in the racing?
[Agent Duck]: Yes, ma’am.
[Defense counsel]: Your Honor, that’s a legal determination by
the jury, invading the province of the jury.
The Court: Overruled, Counsel.
Agent Duck also testified that appellant wore either his full DPS uniform or a safety
vest that stated “Police,” and he would ride around the property on a four-wheeled
ATV to “check out different locations of the track.”
Agent Aguillera testified that he went undercover as a patron at El Herradero
Ranch on approximately five occasions, equipped with an audio and video recorder.
He agreed with the State that gambling was occurring at the races. He testified that
“[p]rior to the races, we would have people come up and ask us [‘W]hich horse do
you want? Which side do you want?[’]” and that the patrons were not whispering
or trying to hide what they were doing. After the races, Agent Aguillera witnessed
the open exchange of money between patrons depending on the outcome of the race.
Agent Aguillera was repeatedly approached by patrons asking him if he wanted to
place a bet. Agent Aguillera witnessed patrons betting on the races each time he
visited the El Herradero Ranch.
Agent Aguillera testified that appellant would spend some time on a four-
wheeler driving around the property and that at other times he would be walking
through the crowd or on the track. Agent Aguillera agreed with the State that there
7
were times when appellant “was present in a crowd of people and betting would be
taking place” and that appellant was occasionally “nearby when the gambling was
going on.” At one point, appellant was standing approximately thirty yards away
from two patrons exchanging money after a race. Agent Aguillera testified that it
was possible that that transaction could have been visible to appellant. On other
occasions, patrons engaged in gambling and discussing gambling were ten or fifteen
feet away from appellant.
On October 5, 2013, Agent Aguillera again visited the racetrack. On this
occasion, he had a conversation with appellant that was recorded. Appellant had left
the parking area and was walking toward the concession stand, and Agent Aguillara
asked him a couple of questions, including whether it was okay for him as patron to
make a bet on a race. Appellant replied “yes as long as he didn’t see it” because he
“couldn’t take enforcement action upon” bets that he did not witness. Agent
Aguillera witnessed gambling every time he visited the racetrack and it always
occurred in the open.
The trial court admitted video recordings that Agent Aguillera made while
undercover at the property. One clip depicted the conversation Agent Aguillera had
with appellant on October 5, 2013, regarding whether betting was allowed. Other
clips showed appellant and other security officers, in uniform, walking on the track,
around the property, and through the crowd. In one video, taken on March 30, 2013,
8
appellant can be seen sitting on an ATV near the track after a race had occurred.
Within the next two minutes, three different payouts for bets occurred while
appellant sat on the ATV approximately thirty to fifty feet away. It’s unclear from
the video whether those payouts occurred within appellant’s line of sight. On cross-
examination, Agent Aguillera acknowledged that he could not see any patrons
gambling right in front of appellant and that appellant was not “in the middle” of
betting as it was occurring.
Investigator Garcia, a lieutenant with the Brookshire Police Department
assigned to work with DPS, first went to El Herradero Ranch on February 23, 2013.
He immediately witnessed patrons betting, and he testified that some individuals
“were actually walking around asking if somebody wanted to take a bet.” He
testified:
It was open. It was out in the open. You just go up there and people
start asking which horse you want. They start asking you want this
horse or that horse type deal. Trying to engage in betting as soon as
you walk up. It’s just open betting.
The State and Investigator Garcia had the following exchange:
[The State]: As part of your undercover role, was it to
determine who was helping conduct this
racetrack?
[Investigator Garcia]: Our deal is trying to find who was conducting
it and to document that in fact it was going
on.
9
[The State]: Were there other people that, you, throughout
the investigation were able to identify as
helping run the track?
[Investigator Garcia]: Yes, ma’am. There were property owners
and probably about six other officers.
[Defense counsel]: Your Honor, we object to helping run the
track as being a legal conclusion and
invading [the] province of the jury.
The Court: Overruled.
The trial court also admitted video recordings made by Investigator Garcia
while undercover. In one clip, taken on an unknown date, three different payouts
occurred among patrons standing near the fence running along the racetrack. While
this occurred, appellant stood on the track, approximately twenty to thirty feet away,
with his back to the patrons. He later turned towards the patrons, but the video did
not show any further betting among patrons occurring at this time. The trial court
admitted another video in which patrons were “celebrating” over a race that had just
occurred while appellant was standing nearby. Investigator Garcia agreed that “at
this time, at this location,” he saw betting occurring.
Investigator Garcia also testified that, on one occasion, he approached
Consuela Rivera, who was wearing a shirt that identified her as a police officer, and
spoke with her. Investigator Garcia “asked her about the horses, which one would
be a good one to bet on.” Defense counsel objected on relevancy, Rule 403, and
Rule 404(b) grounds. The trial court overruled the objections. Investigator Garcia
10
testified that his conversation with Consuela Rivera was amicable and that, after
their conversation, he made a bet on the next race with a patron. The trial court
admitted an audio recording of this conversation. Investigator Garcia won $100, and
he “paid Ms. Rivera for information” and “told her it was payoff for the tip she had
given [him].” Consuela Rivera took the money from Investigator Garcia and “was
happy about it.”
Investigator Garcia also testified concerning a conversation that he had with
another person working security, Officer G. Hurd. Defense counsel objected to the
State’s line of questioning on relevancy grounds, and the trial court overruled the
objection. Investigator Garcia testified that he told Officer Hurd, “[I]f I won, based
on the information he gave me, I would give him some money. Or if he ever wanted
to make a bet to let me know, and I would bet for him.” Officer Hurd did not escort
Investigator Garcia off the property or write him a ticket, and Garcia was able to
continue betting on that occasion. On cross-examination, Investigator Garcia
testified that appellant was not present at the time Garcia had this conversation with
Officer Hurd.
Investigator Garcia testified that he never spoke with appellant, but, on one
occasion while appellant was standing nearby, he got into an argument with another
patron concerning whether a race had actually occurred and whether the other person
was going to pay Garcia. One of the property owners, Reginald Mandujano, was
11
called over to mediate the dispute, and the owner “agreed that it was a race, and the
[other patron] paid [Garcia].” Investigator Garcia was not being “covert or quiet,”
but was instead “being loud and kind of arguing about getting paid.” The other
patron did not appear worried that appellant was standing nearby. There is no
indication from Investigator Garcia’s testimony that Mandujano was still standing
nearby when this payout occurred or that Mandujano saw the payout. Investigator
Garcia testified that he never had a direct conversation with either appellant or
Mandujano.
Harris County Constable’s Officer Sergeant A. Rubio testified that he had
known appellant for many years and that appellant had been a coordinator for
officers who wanted to work extra jobs. Sergeant Rubio obtained an extra job
through appellant on a few occasions, including one day working security at El
Herradero Ranch in 2013. Sergeant Rubio saw patrons openly holding cash and
recording the races, and he believed that gambling was occurring at the property.
Later that day, Sergeant Rubio informed appellant of what he observed and his
concerns, and he told appellant that he would not work security at the property
again.3 Sergeant Rubio informed the Office of the Inspector General of what he had
3
Appellant testified that Sergeant Rubio told him of his concerns about gambling at
the property. He stated that, despite these concerns, Rubio did not arrest anyone on
the day he worked at the property.
12
witnessed, and he called Noe Diaz, with the Texas Rangers, to report his
observations.
Ranger Diaz testified concerning the types of extra jobs that DPS troopers are
allowed to work. He stated that jobs where gambling occurs are strictly prohibited.
When appellant applied to work an extra job at the El Herradero Ranch, he listed the
nature of the business as “a Mexican rodeo,” but Ranger Diaz testified that he would
characterize the property as a “straight track,” not as a rodeo. If appellant had listed
“racetrack” on his application to work security, that would have “immediately”
triggered concern among the officers who approve extra jobs. After receiving
information from Sergeant Rubio concerning the activities at the El Herradero
Ranch, Ranger Diaz began an investigation and eventually coordinated with Agent
Duck’s investigation and provided training assistance for the undercover agents.
Appellant testified on his own behalf. He testified that he has been a DPS
Trooper since 1981. He started working security at El Herradero Ranch in 2008. It
did not have a horse track at that time. From 2008 to 2013, a Mexican rodeo occurred
at the property, and, in 2013, the owners added a horse track. He testified that his
duty at El Herradero Ranch was to “provide security” and “enforce the law of the
State of Texas.” He stated that his job was not to conduct horse races but to conduct
security and make the premises safe for patrons. Appellant characterized his
conversation with Agent Aguillera as Aguillera’s asking if gambling was occurring
13
at the property and appellant responding that “if it’s in my view, I will take some
action. But if it’s not in my view, I cannot take some action.” He stated that this
was his way of giving a warning that gambling was prohibited, and if he saw
gambling occurring, he “would do something about it.” Appellant testified, “I was
there to enforce all the laws. They never gambled in front of me. They never bet in
front of me. I was never able to take any action on that.”
On cross-examination, appellant had the following exchange with the State:
[The State]: We’re having horses racing, certainly the idea must
come to you that some people may want to bet on
that?
....
[Appellant]: They bet everywhere. Everywhere betting is done.
[The State]: Everywhere racing is, betting is done?
[Appellant]: In everything. You go to Reliant Park, you go to
[Minute Maid] Park, you go to boxing, you go to
anywhere, betting is done.
[The State]: So certainly based on your training and experience,
you can expect betting to be going on at that facility;
is that correct?
[Appellant]: It’s a possibility. If they do it in front of me, I’m
going to take action.
Appellant testified that none of the security officers working with him approached
him to inform him that betting was occurring. He stated that the officers are
“supposed to take action” if they see betting occurring, and that they know they are
supposed to take action because they are police officers.
14
Appellant objected at trial to the admission into evidence of the testimony of
Agent Duck and Investigator Garcia that, in their opinion, appellant was conducting
the race and aiding the racing as improper testimony on legal issues. He also
objected to the trial court’s admission of evidence of the extraneous offense of a
third party at the guilt/innocence stage of trial as improperly prejudicial and
irrelevant. He further objected to the trial court’s admission of statements made to
a third party outside of appellant’s presence as evidence of his guilt. The trial court
overruled all of appellant’s objections.
The jury charge included a law of parties instruction and thus authorized the
jury to find appellant guilty of the offense of racing without a license either as the
primary actor or as a party to the offense. No one other than appellant was identified
as a primary actor in the charge. The law of parties portion of the application
paragraph stated:
[I]f you find from the evidence beyond a reasonable doubt that on or
about the 5th day of October, 2013, in Harris County, Texas, an
unknown person or persons, did then and there unlawfully,
intentionally or knowingly conduct a horse race without having a
racetrack license from the Texas Racing Commission, and the unknown
person or persons knew or reasonably should have known that another
person was betting on the final outcome of said race, and that the
defendant, Richard Rene Rivera, with the intent to promote or assist the
commission of the offense, if any, solicited, encouraged, directed, aided
or attempted to aid the unknown person or persons to commit the
offense, if he did, then you will find the defendant guilty of a violation
of the Texas Racing Act, as charged in the indictment.
15
The jury found appellant guilty of the offense of racing without a license. The
trial court assessed appellant’s punishment at two years’ confinement, suspended for
two years, and a $2,000 fine. This appeal followed.
Racing Without a License
In his first issue, appellant contends that the State presented insufficient
evidence that he conducted a horse race without a racetrack license as a primary
actor, as alleged in the indictment. In his eleventh issue, appellant contends that the
trial court erred in including an instruction on the law of parties in the charge because
the State presented no evidence that someone else was the primary actor for the
offense of conducting an illegal race and no evidence that appellant intentionally
aided in committing this offense, as required by the statute. We consider these issues
together.
A. Standard of Review of Sufficiency of the Evidence
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.
State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard
is only standard to use when determining sufficiency of evidence). The jurors are
the exclusive judges of the facts and the weight to be given to the testimony. Bartlett
16
v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge
of credibility, may accept one version of the facts and reject another, and it may
reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve
witness even when witness’s testimony is uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). We afford almost complete deference to the jury’s
credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.
App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict.
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the prosecution and therefore defer to that determination.”). Circumstantial
evidence is as probative as direct evidence in establishing guilt, and circumstantial
evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need
not point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
17
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “[A]ll the
evidence the jury was permitted, properly or improperly, to consider must be taken
into account in determining the . . . sufficiency of the evidence.” Barnes v. State, 62
S.W.3d 288, 297–98 (Tex. App.—Austin 2001, pet. ref’d).
B. Conducting a Horse Race Without a Racetrack License as a Primary
Actor
The Texas Racing Act, under which appellant was convicted, provides:
(a) A person commits an offense if the person:
(1) Conducts a greyhound or horse race without
a racetrack license; and
(2) Knows or reasonably should know that
another person is betting on the final or
partial outcome of the race.
(b) An offense under this section is a felony of the third degree.
TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (West Supp. 2016). Thus, to establish
that appellant committed the offense of conducting a horse race without a racetrack
license as a primary actor, the State had to prove that appellant “conduct[ed]
a . . . horse race without a racetrack license” and that appellant “kn[ew] or
reasonably should [have] know[n] that another person was betting on the final
outcome of the race.” See id.
18
The Texas Racing Act does not define the term “conducts.”4 The Court of
Criminal Appeals has held that, when interpreting a statute, “an undefined word or
phrase should be construed and understood according to its common, every day
usage.” Hanna v. State, 426 S.W.3d 87, 92 (Tex. Crim. App. 2014); see also TEX.
GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read in
context and construed according to the rules of grammar and common usage.”).
“Jurors may ‘freely read [undefined] statutory language to have any meaning which
is acceptable in common parlance.’” Kirsch v. State, 357 S.W.3d 645, 650 (Tex.
Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.
1995)).
Appellant and the State have offered various definitions of “conduct” when
used as a verb in order to aid our interpretation of Texas Racing Act section 14.16.5
4
One other Texas criminal statute uses “conducts” as a verb: Penal Code section
34.02, which concerns money laundering. See TEX. PENAL CODE ANN.
§ 34.02(a)(2) (West Supp. 2016) (“A person commits an offense if the person
knowingly . . . conducts, supervises, or facilitates a transaction involving the
proceeds of criminal activity.”). As with the Texas Racing Act, the Penal Code does
not define “conducts” when used as a verb. But see id. § 1.07(a)(10) (Vernon Supp.
2015) (defining “conduct,” when used as a noun, as “an act or omission and its
accompanying mental state”). And, as with the Texas Racing Act, no Texas court
has interpreted the meaning of “conducts” in the context of section 34.02.
5
The Fourteenth Court of Appeals recently decided a case arising out of this same
incident involving another off-duty police officer working an extra job as security
at El Herradero Ranch. See Hurd v. State, 495 S.W.3d 592 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). Although the appellant in that case challenged the
applicability of article 14.16 to him as well as the sufficiency of the evidence to
convict him as a primary actor or as a party, our sister court did not analyze the
19
The State cites the Merriam-Webster Dictionary, which defines “conduct” as “to
direct or take part in the operation or management of” and “to direct the performance
of.” Conduct, MERRIAM-WEBSTER.COM, www.merriam-webster.com/
dictionary/conduct (last visited Nov. 14, 2016). The American Heritage Dictionary
defines “conduct” as “to direct the course of; manage or control.” Conduct, THE
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=conduct (last visited Nov. 14, 2016);
see also Conduct, WEBSTER’S NEW WORLD COLLEGE DICTIONARY,
www.yourdictionary.com/conduct#websters (last visited Nov. 14, 2016) (defining
“conduct” as “to manage, control, or direct”).
Each of these definitions of “conduct” implies a degree of management,
control, and authority over what is being conducted. Thus, in the context of section
14.16, a person “conducts a horse race” if he directs or takes part in the operation or
management of a horse race, or directs the performance of the race, or controls the
race. And he violates section 14.16 if he performs such functions without a racetrack
license and he knows or reasonably should know that another person is betting on
the outcome of the race. There is no evidence in the record that appellant was a
person required to have a racetrack license. There is no evidence in the record to
language of article 14.16 or specifically define what it means to “conduct” a horse
race.
20
show that appellant directed the operation or management of the racetrack, the racing
operation, or the performance of the races.
Instead, the evidence reflects that, in addition to generally ensuring the
security of the property and the safety of the patrons, appellant’s only action in
connection with the actual races themselves was to ensure that patrons stayed off the
track during races by pulling a rope back and forth across the track. These actions
do not require a racetrack license and do not constitute management, control, or
direction of the operation, the course, or the performance of a horse race without a
license. We therefore conclude that the State presented insufficient evidence that
appellant was guilty as the primary actor of conducting a horse race at which betting
was occurring without a racetrack license.
C. Conducting a Horse Race Without a Racetrack License as a Party
The State points out, however, that the jury charge authorized the jury to
convict appellant as a party to the offense under the law of parties. On appeal,
appellant argues that the instruction was improperly given and that the evidence is
insufficient to support his conviction under the law of parties. We therefore must
consider whether the State presented sufficient evidence that appellant was guilty as
a party of the criminal offense of conducting a horse race without a license.
“An instruction on the law of parties should be submitted to the jury when the
evidence adduced at trial shows the active participation in the offense by two or more
21
persons.” Gilmore v. State, 397 S.W.3d 226, 243 n.24 (Tex. App.—Fort Worth
2012, pet. ref’d). If the State is to prove a defendant’s guilt as a party beyond a
reasonable doubt, the State must first prove the guilt of another party as the primary
actor. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993); Barnes,
62 S.W.3d at 296. To support an instruction on the law of parties, the State need not
establish the identity of the primary actor in the commission of the offense; rather,
it is sufficient that the State prove conduct by a third party constituting the offense
and an act by the accused committed with the specific intent to promote or assist the
conduct. See Nelson v. State, 405 S.W.3d 113, 126 (Tex. App.—Houston [1st Dist.]
2013, pet. ref’d); Mullins v. State, 173 S.W.3d 167, 174 (Tex. App.—Fort Worth
2005, no pet.); Barnes, 62 S.W.3d at 296. “To establish guilt under the law of
parties, the evidence must show that, at the time of the offense, the parties were
acting together, each contributing some part towards the execution of their common
purpose.” Nelson, 405 S.W.3d at 123.
“In general, an instruction on the law of parties may be given to the jury
whenever there is sufficient evidence to support a jury verdict that the defendant is
criminally responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564
(Tex. Crim. App. 1999); Ryser v. State, 453 S.W.3d 17, 28 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d). The trial court may include this instruction in the charge
if evidence supporting the theory has been introduced at trial, even if the indictment
22
alleges only that the defendant acted as a principal actor. Ryser, 453 S.W.3d at 28.
Under the law of parties, a person is criminally responsible as a party to an offense
if the offense is “committed by his own conduct, by the conduct of another for which
he is criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a) (West
2011); Nelson, 405 S.W.3d at 123. 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.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West
2011).
Further, “it must be shown that, in addition to the illegal conduct by the
primary actor, the accused harbored the specific intent to promote or assist the
commission of the offense.” Barnes, 62 S.W.3d at 296; see Richardson, 879 S.W.2d
at 882. The accused must know that he was assisting in commission of the offense.
Barnes, 62 S.W.3d at 296; see Amaya v. State, 733 S.W.2d 168, 174–75 (Tex. Crim.
App. 1986). This “agreement, if any, must be before or contemporaneous with the
criminal event.” Barnes, 62 S.W.3d at 296 (emphasis in original); see Beier v. State,
687 S.W.2d 2, 3–4 (Tex. Crim. App. 1985). “The evidence must show that at the
time of the commission of the offense, the parties were acting together, each doing
some part of the execution of the common design.” See Barnes, 62 S.W.3d at 297
(emphasis in original).
23
“The State must show more than mere presence to establish participation in a
criminal offense.” Id. (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App.
1981)). The accused’s “[m]ere presence or even knowledge of an offense does not
make [him] a party to the offense.” Barnes, 62 S.W.3d at 297; see Oaks v. State,
642 S.W.2d 174, 177 (Tex. Crim. App. 1982). In determining whether a defendant
participated in the commission of an offense as a party, the fact finder may examine
the events occurring before, during, and after the commission of the offense and may
rely on actions of the defendant that show an understanding and common design to
commit the offense. Barnes, 62 S.W.3d at 297.
Here, the jury charge instructed the jury that it could find appellant guilty
under the law of parties
if you find from the evidence beyond a reasonable doubt that on or
about the 5th day of October, 2013, in Harris County, Texas, an
unknown person or persons, did then and there unlawfully,
intentionally or knowingly conduct a horse race without having a
racetrack license from the Texas Racing Commission, and the unknown
person or persons knew or reasonably should have known that another
person was betting on the final outcome of said race, and that the
defendant, Richard Rene Rivera, with the intent to promote or assist the
commission of the offense, if any, solicited, encouraged, directed, aided
or attempted to aid the unknown person or persons to commit the
offense.
Appellant argues that the “unknown person or persons” mentioned in the jury
charge presumably refers to the owners of the El Herradero Ranch. But the State
presented no evidence beyond mere speculation that any person who owned or
24
operated the racetrack committed the offense of conducting a horse race without a
racetrack license and “knew or reasonably should have known that another person
[was] betting on the final or partial outcome of the race.” See TEX. REV. CIV. STAT.
ANN. Art. 179e, art. 1, sec. 14.16(a). There was simply nothing in the record to
convict any person as a primary actor of the offense of conducting a horse race
without a racetrack license.
The only person fitting the description of an owner or manager of the racetrack
at El Herradero Ranch was Reginald Mandujano. Investigator Garcia identified
Mandujano as one of the owners of the property and presented evidence that he was
present at the racetrack on at least one occasion. Garcia also testified that betting
occurred among patrons on horse races at El Herradero Ranch, was “open” and
“obvious” when he was walking through the crowds, and occurred each time
undercover agents visited the property. On the occasion when Mandujano was
present, he was asked to decide a dispute between Garcia and another patron with
whom Garcia had made a bet as to whether a race had occurred. Mandujano
reviewed a tape of the race and determined that a race had occurred. That was all he
was asked to do. The patron then paid Garcia. But there is no indication in the
record that Mandujano was still nearby when this payout occurred or that he saw the
payout. Garcia testified that he never had a direct conversation with Mandujano.
25
There was no evidence that Mandujano personally conducted the operation of the
racetrack or managed, controlled, or directed the races at the site.
The State presented no testimony concerning who was in charge of conducting
the horse races, such as whether the owners of the property were in charge or whether
another individual was in charge of managing the business of the racetrack. The
only testimony that the State presented concerning the owners’ involvement with the
racetrack was Investigator Garcia’s testimony concerning Mandujano’s resolution
of the dispute Garcia had with a patron about whether a race had occurred and
Garcia’s testimony that the owners’ family members worked at the property
collecting entrance fees at the gate and selling food and beer. The State presented
no testimony that any of the owners, if they were the ones conducting the races, were
aware of the betting that was occurring among the patrons along the sidelines of the
track before and after races. The State presented no evidence that the owners were
present when betting was occurring and saw bets being placed or money exchanging
hands after a race.6
6
We note that, in Hurd, the Fourteenth Court concluded that Mandujano knew or
reasonably should have known that others were betting on the outcomes of races.
495 S.W.3d at 597–98. The Fourteenth Court based this conclusion on the facts that
Mandujano owned El Herradero Ranch, he was observed at the racetrack on a race
day, he paid the employees, and the betting was “open and pervasive.” Id. at 597.
However, there is no evidence in the record in this case that Mandujano, despite
being an owner of the property and being present at a race, operated the racetrack
or otherwise conducted the horse races, or himself saw or aided or participated in
illegal betting. We therefore disagree with the Fourteenth Court that the State
26
Based on this record, we conclude that the State presented no evidence that
any property owner, or any other unidentified individual, conducted an identifiable
horse race without a racetrack license when he knew or reasonably should have
known that another person was betting on the final outcome of that race. There was,
therefore, insufficient evidence to convict any person of the offense of violating the
Texas Racing Act. See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16.
There was likewise no evidence that, at time of the commission of a proven
offense, appellant had an agreement with a primary actor entered with the specific
intent to promote or assist in the commission of the offense and that “the parties were
acting together, each contributing some part towards the execution of their common
purpose.” See Barnes, 62 S.W.3d at 296–97. Appellant could be held criminally
responsible for the conduct of another under the law of parties only if, acting with
intent to promote or assist the commission of the offense, he “solicit[ed],
encourage[d], direct[ed], aid[ed], or attempt[ed] to aid the other person to commit
the offense.” See TEX. PENAL CODE ANN. § 7.02(a)(2); see also Nelson, 405 S.W.3d
at 123 (stating that, to establish guilt under law of parties evidence must show that,
at time of offense, “the parties were acting together, each contributing some part
towards the execution of their common purpose”).
established Mandujano’s criminal liability as a primary actor beyond a reasonable
doubt.
27
There was no evidence of any agreement between appellant and another party
to the offense to conduct a horse race without a racetrack license at the time of
appellant’s alleged offense. And there was no evidence of how appellant and one or
more of the parties acted together to contribute to the execution of a common
purpose of committing the offense. At most, the evidence showed that appellant was
present at a horse race at which betting was occurring.7 Mere presence during the
commission of an offense is legally insufficient evidence to convict a person of an
offense as a party. See Barnes, 62 S.W.3d at 297 (stating that State must show more
than mere presence to establish participation in criminal offense); see also Nelson,
405 S.W.3d at 126 (stating that when defendant is not primary actor, State must
prove conduct constituting offense plus act by defendant done with specific intent to
promote or assist such conduct). As a result, the State failed to prove that appellant
7
In concluding that the State presented sufficient evidence that the defendant violated
article 14.16 as a party in Hurd, the Fourteenth Court stated, “The conviction here
does not rest on proof of [Hurd’s] status within an enterprise that merely had
criminal potential. Rather, [Hurd’s] conviction rests on evidence of his actions as a
security officer coupled with evidence that he affirmatively encouraged hand-to-
hand betting.” 495 S.W.3d at 599. After an undercover officer complained to Hurd
that he “wasn’t hardly winning anything,” Hurd told the officer that “he should have
bet $500 on the previous race.” Id. at 598. There was no evidence in this case that
appellant affirmatively encouraged any of the patrons at El Herradero Ranch to
engage in betting on the horse races.
28
was guilty of the charged offense as a party.8 See Richardson, 879 S.W.2d at 882;
Barnes, 62 S.W.3d at 296.
We hold that the State failed to present sufficient evidence to support
appellant’s conviction, either as the primary actor or as a party.
We sustain appellant’s first issue.9
8
We note that Penal Code section 7.03(2) provides that “[i]n a prosecution in which
an actor’s criminal responsibility is based on the conduct of another, the actor may
be convicted on proof of commission of the offense and that he was a party to its
commission, and it is no defense . . . that the person for whose conduct the actor is
criminally responsible has been acquitted, has not been prosecuted or convicted, has
been convicted of a different offense or of a different type or class of offense, or is
immune from prosecution.” TEX. PENAL CODE ANN. § 7.03(2) (West 2011)
(emphasis added); Roberts v. State, 319 S.W.3d 37, 48 (Tex. App.—San Antonio
2010, pet. ref’d) (holding that primary actor’s acquittal on three counts does not, by
itself, “prevent appellant’s conviction on these same counts”). Here, however, the
State has presented no evidence that a primary actor committed the charged offense
of racing without a license. Section 7.03(2), therefore, does not apply to this case.
9
Because we hold that the State failed to present sufficient evidence to uphold
appellant’s conviction, either as the primary actor or as a party, and we thus render
a judgment of acquittal, we do not address the remainder of appellant’s issues.
29
Conclusion
We reverse the judgment of the trial court and render a judgment of acquittal.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Justice Jennings, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
30
Richard Rene Rivera v. State
Court: Court of Appeals of Texas
Date filed: 2016-11-17
Citations: 507 S.W.3d 844, 2016 Tex. App. LEXIS 12375, 2016 WL 6803225
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