Court of Appeals Tenth Appellate District of Texas
10-24-00253-CR
Arlie Glenn Gaston, Appellant
v.
The State of Texas, Appellee
On appeal from the 13th District Court of Navarro County, Texas Judge James E. Lagomarsino, presiding Trial Court Cause No. D41771-CR
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
Arlie Glenn Gaston was convicted of two counts of aggravated robbery
and sentenced to 37 years in prison, each count to run concurrently with the
other. Because the evidence was sufficient to support his conviction, the trial
court did not abuse its discretion in excluding a witness’s testimony regarding
Gaston’s alleged mental health, and the trial court did not abuse its discretion
in admitting three self-authenticating exhibits at punishment, we affirm the trial court’s judgments.
BACKGROUND
After retrieving his wife’s gun from his brother, to whom he had sold it,
Gaston drove around Navarro County until he ended up at the Family Dollar
store in Dawson, Texas, at about 9:00 p.m. He wandered around the store for
a while and then walked up to the checkout counter, behind which an assistant
manager and a cashier stood, and asked what time the store closed. The
assistant manager told Gaston the store closed at 10:00 p.m. Gaston responded
that he had something in his shoe that would make them close early. He then
demanded money from the register. After a regular customer bought items
while Gaston was present, the assistant manager communicated to the
customer outside that Gaston was trying to rob the store.
As Gaston waited for the store to close, officers from the Navarro County
Sherriff’s Office arrived. Gaston approached the sliding-door entrance to the
store, displayed a firearm, and stood with it at his side. After an approximately
20-minute standoff, Gaston placed the firearm on the ground and surrendered.
He later admitted to the robbery.
SUFFICIENCY OF THE EVIDENCE
In Gaston’s first issue on appeal, he contends the evidence was
insufficient to support his conviction because, specifically, the State failed to
Gaston v. State Page 2 prove: 1) Family Dollar’s ownership of the property; 2) the two complainants
felt threatened; and 3) Gaston “brandished” or used a deadly weapon during
the offense.
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of
a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly 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. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 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. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
Gaston v. State Page 3 evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury 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.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Gaston was charged with two counts of aggravated robbery. The
essential elements of an aggravated robbery, as modified by the indictment in
this case, are: (1) the defendant, (2) in the course of committing theft, (3) with
intent to obtain or maintain control of property, (4) knowingly or intentionally,
(5) threatened or placed another in fear of imminent bodily injury or death,
and (6) used or exhibited a deadly weapon. See TEX. PENAL CODE
§§ 29.02(a)(2), 29.03(a)(2); see also Robinson v. State, 596 S.W.2d 130, 132 (Tex.
Crim. App. 1980). "In the course of committing theft" means conduct that
occurs in an attempt to commit, during the commission, or in immediate flight
Gaston v. State Page 4 after the attempt or commission of theft. TEX. PEN. CODE § 29.01(1). A person
commits theft if he unlawfully appropriates property, meaning without the
owner's effective consent, with intent to deprive the owner of property. Id.
§ 31.03(a) & (b).
Ownership
Gaston claims the evidence is insufficient because no one testified as to
who was the true owner of the property “supposedly being stolen.” In support
of his argument, Gaston relies on the Court of Criminal Appeals’ opinion in
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011). In Byrd, the Court
addressed a variance issue in a shoplifting case where the indictment
identified the property owner as "Mike Morales." Id. at 245. At trial, the State
proved that Wal-Mart was the property owner and not "Mike Morales." Id. at
253. No one at trial had even heard of Mike Morales or that he had anything
to do with Wal-Mart. Id. at 254. The Court found a material variance between
the indictment and evidence at trial, which amounted to a failure of proof, and
concluded that the material variance rendered the evidence insufficient to
support the conviction. Id. at 258.
This is not a case, as was Byrd, where the indictment alleged one owner,
and the State proved another. Rather, in this case, the indictment did not
allege an owner because such an allegation was not required in an indictment
Gaston v. State Page 5 for aggravated robbery. Rudd v. State, 616 S.W.2d 623, 624 (Tex. Crim. App.
1981). Thus, in a hypothetically correct jury charge as authorized by the
indictment in this case, a particular owner was not required to be proved, and
the holding in Byrd is not applicable.
Texas law provides, and the jury was so instructed, that an owner is one
who "has title to the property, possession of the property, whether lawful or
not, or a greater right to possession of the property than the actor[.]" Id.
§ 1.07(a)(35)(A); see also Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App.
2016). The evidence here showed that Gaston demanded money held in a cash
register inside the Family Dollar store in Dawson, Texas. 1 There was no
evidence in the record that the money was Gaston’s or that he had any right,
much less a greater right, to the money. While there was nothing to show
Family Dollar had title to the money, the evidence is sufficient to show that
Family Dollar possessed the money in the cash register or at least had a
greater right to possession of the money than Gaston.
Threatened or Placed in Fear
Next, Gaston contends that there is insufficient evidence to prove that
the two complainants, Veronica and Brittney, were threatened or placed in fear
1 Although no money exchanged hands, a theft only has to be attempted, not completed. Jones v. State, 323 S.W.3d 885, 890 (Tex. Crim. App. 2010). See White v. State, 671 S.W.2d 40, 41-42 (Tex. Crim. App. 1984) (“[n]o completed theft is required in order for the proscribed conduct to constitute the offense of robbery.”); Robinson v. State, 596 S.W.2d 130, 134 (Tex. Crim. App. 1980).
Gaston v. State Page 6 of imminent bodily injury or death.
The Texas Court of Criminal Appeals has said:
The plain language of the [robbery] statute encompasses not just explicit threats, but whatever implicit threats may lead to the victim being placed in fear. So long as the defendant's actions are of such nature as in reason and common experience is likely to induce a person to part with his property against his will, any actual or perceived threat of imminent bodily injury will satisfy this element of the offense.
Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2010). Consequently,
an accused need not expressly threaten another or display a weapon to place
an individual in fear of imminent bodily injury or death. See Howard v. State,
306 S.W.3d 407, 410-11 (Tex. App.—Texarkana 2010), aff'd, 333 S.W.3d 137
(Tex. Crim. App. 2011).
In this case, Veronica testified that she was an assistant manager at the
Family Dollar store in Dawson when Gaston tried to rob the store. She was
working the closing shift. Late in the shift, Gaston approached the counter
where she and Brittany, a cashier, were standing. He asked what time the
store closed. When Veronica told him that the store closed at 10:00 p.m.,
Gaston replied, “I got something in my shoe that says you’ll close before.” At
first, Veronica did not pay attention to what Gaston was saying. However,
when he repeated it, she decided he was serious. He also demanded money
from the cash register drawer. Veronica did not know what he had in his shoe
Gaston v. State Page 7 and never saw a weapon, but what Gaston said to her scared her. She told
Gaston that the doors had alarms on them and would go off if she closed early.
This was not the truth, but she was trying to stall.
Veronica texted “I need you” to her husband because she was scared and
had a heart condition. She tried going outside to get some air, but Gaston
followed her. She said he was trying to calm her down. The store surveillance
video showed Veronica fanning herself and placing her hand on her heart. She
was visibly distressed. It also appeared that Gaston convinced her to come
back in the store. Veronica walked back outside to smoke, but Gaston again
followed her, walking outside and then standing in the doorway. Veronica
returned to the store, walked back to the doorway, and walked back into the
store moments later. She frequently paced behind the checkout counter. She
walked back outside to smoke again, staying near or in the doorway. Gaston
kept an eye on her whenever she went outside, especially when customers
stopped to talk to her. Gaston frequently stood in the doorway and returned
inside the store, appearing to guard the entry.
Veronica testified that Brittney, who did not testify at Gaston’s trial, was
also scared. Brittney was only 19 years old and was crying and visibly shaken
by what Gaston was trying to do. She placed her hand on her heart as well
after Gaston approached the counter. Veronica was afraid to run because she
Gaston v. State Page 8 did not know what Gaston would do and did not want to leave Brittney behind.
Eventually, she and Brittney exited the store and stood just outside the doors
smoking cigarettes. They were still in Gaston’s line of sight. Later, when
sheriff’s deputies arrived, Veronica and Brittney took the opportunity to leave
the store front. Gaston then walked out of the store, stood in the doorway, and
displayed a handgun, a revolver, in the palm of his hand, causing a standoff
between the deputies and Gaston.
This evidence of Veronica’s and Brittney’s physical responses to Gaston’s
actions and what he had said showed they perceived a threat of imminent
bodily injury or death. Accordingly, based on a review of the evidence in the
light most favorable to the verdict, a rational jury could find that Gaston either
threatened or placed Veronica and Brittney in fear of imminent bodily injury
or death, and the evidence is sufficient to support this element of aggravated
robbery.
Deadly Weapon
Lastly, Gaston contends the evidence is insufficient because there was
no evidence that he used or “brandished” a deadly weapon during the robbery.
A person commits aggravated robbery if he commits robbery and uses or
exhibits a deadly weapon. TEX. PENAL CODE § 29.03. In this case, the deadly
weapon is a firearm. Id. § 1.07(17)(a). A person uses or exhibits a deadly
Gaston v. State Page 9 weapon under the aggravated robbery statute if he employs the weapon in any
manner that facilitates the associated felony. Glover v. State, 710 S.W.3d 816,
822 (Tex. Crim. App. 2025); McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim.
App. 2000); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). As
the Court of Criminal Appeals has said
… "used . . . a deadly weapon" during the commission of the offense means that the deadly weapon was employed or utilized in order to achieve its purpose. Whereas "exhibited a deadly weapon" means that the weapon was consciously shown or displayed during the commission of the offense. Therefore, the court of appeals was correct when it stated that "'used . . . during the commission of a felony offense' refers certainly to the wielding of a firearm with effect, but it extends as well to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony." (citation omitted). However, to "exhibit" a deadly weapon it need only be consciously displayed during the commission of the required felony offense. Thus, one can "use" a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it.
Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Thus, actual
“brandishing” of a deadly weapon is not required.
In this case, Gaston, used a firearm—a revolver—even though he did not
exhibit it to Veronica or Brittney, to facilitate the commission of the robbery.
He approached them as they were behind the checkout counter and stated that
he had something in his shoe that would make them close the store early. He
repeated his statement. He demanded money. Veronica and Brittney were
Gaston v. State Page 10 scared. Although they did not hand over any money, Gaston remained at or
near the counter, keeping an eye on them— especially when Veronica would
step outside—and backing away slightly when customers needed to pay for
their items. Veronica and Brittney were trapped.
When sheriff’s deputies arrived and Veronica and Brittney made their
escape from the front of the store, Gaston displayed the revolver to the deputies
with arms open wide, but he would not put it down. He would not put his
hands in the air. He would not get on his knees. When searching himself for
a lighter after retrieving his cigarettes, Gaston put the revolver in his back
pocket and went back inside the store to take a lighter from the store. He then
stood in the open doorway to light and smoke his cigarette. With the revolver
still in his back pocket, he then retrieved a beer from the store and again, stood
in the open doorway while he smoked his cigarette and drank the beer.
Eventually, he retrieved the revolver from his back pocket, placed it on the
ground, and surrendered.
Thus, based on the evidence viewed in the light most favorable to the
verdict, a rational jury could find that Gaston used a deadly weapon, and the
evidence is sufficient to support this element of aggravated robbery.
Gaston’s first issue is overruled.
Gaston v. State Page 11 EXCLUDED TESTIMONY
Next, Gaston complains that the trial court erred by prohibiting a
defense witness from testifying that Gaston was suffering from a “mental
health incident” when Gaston committed the offense.
Because Gaston characterized this witness as an expert, a Rule 702
hearing was held. See TEX. R. EVID. 702. After the hearing, the trial court
prohibited the witness from discussing any mental health determination made
by the witness or by anyone with whom the witness spoke. We review a trial
court's decision to admit or exclude expert testimony for an abuse of discretion,
and we may not reverse those rulings unless they fall outside the zone of
reasonable disagreement. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim.
App. 2012).
Pursuant to Texas Rules of Evidence 702 and 705, three requirements
must be met before expert testimony can be admitted: "(1) The witness
qualifies as an expert by reason of his knowledge, skill, experience, training,
or education; (2) the subject matter of the testimony is an appropriate one for
expert testimony; and (3) admitting the expert testimony will actually assist
the fact-finder in deciding the case." Vela v. State, 209 S.W.3d 128, 131 (Tex.
Crim. App. 2006); see TEX. R. EVID. 702; 705; Wolfe v. State, 509 S.W.3d 325,
335 (Tex. Crim. App. 2017). These requirements are commonly referred to as
Gaston v. State Page 12 (1) qualification, (2) reliability, and (3) relevance. Rhomer v. State, 569 S.W.3d
664, 669 (Tex. Crim. App. 2019).
Gaston contends that the witness met all three requirements but focuses
on the relevance of the witness’s testimony in his appellate brief. The State,
on the other hand, focuses primarily on the witness’s lack of qualifications with
a minor discussion of relevance in its appellate brief. Nevertheless, because it
appears that the qualification of the witness to testify as an expert was the
focus of the Rule 702 hearing and the trial court’s ruling, we begin with that
requirement.
The specialized knowledge that qualifies a witness to offer an expert
opinion may be obtained from specialized education, practical experience, a
study of technical works, or a combination of these things. Rhomer, 569 S.W.3d
at 669. “A witness must first have a sufficient background in a particular field,
but a trial judge must then determine whether that background 'goes to the
very matter on which [the witness] is to give an opinion.'" Rhomer, 569 S.W.3d
at 669, quoting Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). "Fit"
is a component of qualification, and "the expert's background must be tailored
to the specific area of expertise in which the expert desires to testify." Id.,
quoting Vela, 209 S.W.3d at 133. The party offering expert testimony has the
burden to show the witness is qualified on the matter in question. Rhomer,
Gaston v. State Page 13 569 S.W.3d at 669.
To determine whether a trial court has abused its discretion in ruling on
an expert's qualifications, an appellate court may consider: (1) the complexity
of the field of expertise; (2) how conclusive the expert's opinion is; and (3) how
central the area of expertise is to the resolution of the lawsuit. Rhomer, 569
S.W.3d at 669. Greater qualifications are required for more complex fields of
expertise and for more conclusive and dispositive opinions. Id.
At the Rule 702 hearing, the witness testified it was his intent to offer
an opinion that Gaston was mentally ill when he committed his crime. The
witness clarified he wanted to opine that Gaston was suffering from symptoms
of mental illness. 2 His only qualifications for making those statements was
that the witness had been a police officer for 22 years, had dealt with mentally
ill individuals, and had attended a week-long class which certified him to
become a “Mental Health Officer.”
Mental health is a complex field; and in the criminal trial context:
…psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the
2 That the witness later said he was only identifying “indicators” and not making a diagnosis or identifying symptoms, is of no consequence. A symptom is defined as something that “indicates” the existence of something else. See https://www.merriam-webster.com/dictionary/symptom.
Gaston v. State Page 14 probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, (citation omitted), and tell the jury why their observations are relevant…. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.
Ake v. Oklahoma, 470 U.S. 68, 80-81, 105 S. Ct. 1087, 1095 (1985) (emphasis
added). In this case, Gaston wanted the witness to give the jury a “non-
criminal explanation as to why” Gaston committed the offense and the
“passive” manner in which he did it. In other words, Gaston wanted to give
the jury a way to say he did not have the intent to commit the crime. Without
Gaston having requested an insanity defense, the ability to present this kind
of “expert” evidence to a jury would be central to the resolution of the case.
Because of the field in which the witness was attempting to testify and
because the ramifications the type of testimony the witness might provide, the
trial court could have determined the witness needed greater qualifications
than he had to testify as to the symptoms or indicators of an alleged mental
illness in Gaston. Accordingly, the trial court did not abuse its discretion in
excluding the witness’s testimony as an expert.
Gaston’s second issue is overruled.
Gaston v. State Page 15 SELF-AUTHENTICATED EVIDENCE
In his last issue, Gaston argues the trial court erred during the
punishment phase of his trial by admitting State's Exhibits 46 through 48
which appear to be newspaper articles of an extraneous offense—an escape
from the Henderson County Jail after being arrested for murder.
A trial court has broad discretion in determining the admissibility of
evidence presented during the punishment phase of trial and may admit
evidence deemed relevant to sentencing, including evidence of other crimes or
bad acts. TEX. CODE CRIM. PROC. art. 37.07, sec. 3(a)(1); Schultze v. State, 177
S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Thus, we
review the trial court's decision to admit the complained of evidence under an
abuse of discretion standard. See State v. Heath, 696 S.W.3d 677, 688 (Tex.
Crim. App. 2024); see also Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim.
App. 2018) (decision regarding authentication). A trial court abuses its
discretion if its decision lies outside of the zone of reasonable disagreement.
Heath, 696 S.W.3d at 688-87.
At punishment, the State sought to introduce three items that appeared
to be newspaper articles covering the story of Gaston’s escape in 1989 from the
Henderson County Jail after he had been arrested for murder. Gaston
Gaston v. State Page 16 objected, arguing the articles were not properly authenticated. The trial court
overruled the objection without explanation.
Rules 901 and 902 of the Texas Rules of Evidence govern how a
proponent may authenticate or identify evidence. TEX. R. EVID. 901, 902.
While Rule 901 requires the proponent to "produce evidence sufficient to
support a finding that the item is what the proponent claims it is" and provides
a non-exclusive list of examples of such evidence, Rule 902 provides an
exclusive list of certain items that are "self-authenticating" which "require no
extrinsic evidence of authenticity in order to be admitted." Id. For example,
"[p]rinted material purporting to be a newspaper or periodical" are self-
authenticating. TEX. R. EVID. 902(6). Thus, under Rule 902, such documents
are automatically authenticated. Fleming v. Wilson, 610 S.W.3d 18, 20 (Tex.
2020).
On appeal, Gaston complains that it was not possible to determine the
exhibits were “clips” from a newspaper or periodical; thus, the trial court
abused its discretion in admitting them. But the exhibits looked like, and the
trial court had the discretion to conclude they were, copies of newspaper
articles. As such, the exhibits were self-authenticating, and no other
identifying information needed to be provided.
Gaston v. State Page 17 Thus, the trial court did not abuse its discretion by admitting State’s
Exhibits 46 through 48, and Gaston’s third issue is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s
judgments.
LEE HARRIS Justice
OPINION DELIVERED and FILED: September 25, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CRPM
Gaston v. State Page 18