IN THE TENTH COURT OF APPEALS
No. 10-17-00394-CR
BRODNIEY CHARLES RAY, Appellant v.
THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas Trial Court No. 16-01478-CRF-85
MEMORANDUM OPINION
In four issues, appellant, Brodniey Charles Ray, challenges his convictions for two
counts of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2011).
Specifically, Brodniey contends that: (1) the evidence supporting his convictions is
insufficient; (2) the trial court abused its discretion by denying his motions for mistrial;
and (3) he was deprived of his right to a fair trial and to present a full defense because the State purportedly withheld exculpatory evidence of three alternate suspects. Because
we overrule all of Brodniey’s issues on appeal, we affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his first issue, Brodniey argues that the evidence supporting his convictions is
insufficient because the State failed to prove that: (1) he was present during the
commission of the offense in this case; (2) the weapon allegedly exhibited was a firearm;
(3) anyone was in fear of imminent bodily injury or death; and (4) property was stolen.
We disagree.
A. Standard of Review
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must 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. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar standard gives full play 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. “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 conviction.” Hooper, 214 S.W.3d at 13.
Id.
Ray v. State Page 2 Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,
443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are
treated equally: “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder
is entitled to judge the credibility of the witnesses and can choose to believe all, some, or
none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
Under a hypothetically-correct jury charge, a person commits aggravated robbery
“if he commits robbery . . . and he . . . uses or exhibits a deadly weapon . . . .” TEX. PENAL
Ray v. State Page 3 CODE ANN. § 29.03. 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.” Id.
§ 29.02 (West 2011). A deadly weapon is anything that, in the manner of its use or
intended use, is capable of causing death or serious bodily injury. Id. § 1.07(a)(17)(B)
(West Supp. 2017); see Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017) (“A
deadly weapon is defined as a firearm or anything manifestly designed, made, or adapted
for the purpose of inflicting death or serious bodily injury or anything that in the manner
of its use or intended use is capable of causing death or serious bodily injury.” (internal
citations & quotations omitted)).
Though he challenges the other elements for aggravated robbery, Brodniey’s chief
argument in this issue involves the identity element. The State is required to prove
beyond a reasonable doubt that the accused is the person who committed the charged
crime. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd) (citing
Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Rice v. State, 801 S.W.2d 16,
17 (Tex. App.—Fort Worth 1990, pet. ref'd)). Identity may be proved by direct or
circumstantial evidence. Id. (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986);
Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth 1999, pet. ref'd); Creech v.
State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986, no pet.)). “In fact, identity may be
proven by inferences.” Id. (citing United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981));
Ray v. State Page 4 see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.); see also Jones v.
State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, pet. ref'd) (explaining that the
jury may use common sense and apply common knowledge, observation, and experience
gained in ordinary affairs of life when giving effect to inferences that may reasonably be
drawn from evidence).
B. Discussion
Here, Brodniey was charged by indictment with two counts of aggravated
robbery, one for each victim—Francisca Balandra-Ortega and Yazmin Roman-Arroyo. At
2:52 P.M. on the day in question, Officer Jarrett Williams of the Bryan Police Department
responded to a call involving an aggravated robbery at the Safenet Insurance Company
trailer located at 1204 West William Joel Bryan Parkway in Brazos County, Texas. Upon
arriving, Officer Williams was informed by Francisca and Yazmin, both employees of
Safenet, that two African-American males had pointed a pistol at them. According to
Francisca, one of the robbers yelled that he only wanted money. While pointing a pistol,
one of the robbers told Francisca that she needed to get on her knees and put her face on
the ground. Yazmin recalled that she was also forced to the ground at gunpoint. Both
women testified that they felt afraid and scared during the robbery. The two women
further testified that the robbers went directly to a black filing cabinet in the corner of the
trailer where the company kept the money. Yazmin also noted that one of the robbers
rummaged through her desk for money. As a result of the robbery, Francisca’s purse and
Ray v. State Page 5 other belongings, including an LG cell phone and cash, were stolen. Yazmin’s iPhone 6
and white Michael Kors purse were also stolen. Inside Yazmin’s purse was a deposit bag
with cash from the day’s transactions. While investigating, Officer Williams found on
the floor of the Safenet trailer a 9-millimeter magazine that Yazmin had seen come out of
one of the robbers’ guns during the robbery. Officer Williams emphasized that the
magazine was from a real gun, not a BB gun.
With regard to the description of the assailants, Francisca told Officer Williams
that she observed one of the males wearing a hoodie with some type of white substance
on his face. Yazmin stated that she knew both robbers were African-American because
she could see their necks. Additionally, she recalled one of the robbers wore gloves; both
robbers wore gray hoodies; and one of the robbers had a white towel covering his face,
and the other robber had white paint covering his face. The descriptions of the robbers
provided by Francisca and Yazmin matched the descriptions provided by a nearby
eyewitness, Vance Castillo.
Castillo testified that he was near the Safenet trailer and that he observed, from
about twenty yards away, two individuals running away from the trailer. He noted that
the two men were African-American and that they wore masks, gloves, and long sleeves.
Castillo also heard yelling and saw one of the men carrying what looked like a white-
colored bag that seemed to match the color of Yazmin’s purse that was stolen. According
to Castillo, the two individuals then got into a silver Ford Fusion with bulky, chrome
Ray v. State Page 6 rims, a missing center cap on one rim, and tinted windows. When shown a photographic
lineup, Castillo was sixty percent sure that Brodniey was one of the suspects.
Other evidence presented at trial included testimony that Brodniey’s sister,
Quintesha Ray, drove a silver Ford Fusion in September 2015 and that Brodniey was
driving Quintesha’s Ford Fusion on the day of the robbery. Additionally, the evidence
established that Brodniey had visited the Safenet trailer earlier in the day with Quintesha,
so that Quintesha could pay her insurance bill. Quintesha paid in cash while Brodniey
sat next to her. Brodniey observed Yazmin place the cash in her bottom desk drawer.1
Furthermore, records from Brodniey’s cell phone, as well as his ankle monitor,
placed him near the location of the Safenet trailer during the time of the robbery.
Brodniey’s ankle monitor showed that he left Quintesha’s house at 2:29 P.M. on the day
in question; that he was more than 150 feet away from Quintesha’s house between 2:29
P.M. and 5:50 P.M.; and that Brodniey returned to Quintesha’s house at 5:50 P.M.
Moreover, Brodniey’s cell phone records demonstrated that he: (1) made a phone call to
Safenet using caller-ID restriction at 1:46 P.M., and this phone call bounced off the west
side of the Waco Street tower; and (2) made another phone call at 3:04 P.M. that bounced
off the west side of the Waco Street tower. This information placed Brodniey’s cell phone
near the Safenet trailer at the time of the robbery.
1Prior to closing the trailer that day, Yazmin moved the cash from her bottom desk drawer for safekeeping.
Ray v. State Page 7 The State also proffered additional “pinging” evidence regarding cell phones.
Brodniey received a phone call at 3:39 P.M. that bounced off the Smetana Road tower,
and he made a phone call after the robbery at 4:16 P.M. that bounced off the beta face of
the Smetana Road tower. “Pinging” from Yazmin’s stolen cell phone showed that, at 4:11
P.M. and at 4:25 P.M., the cell phone was located at 2107 Silver Hill Road. Sergeant Steven
Fry of the Bryan Police Department noted that the Smetana Road tower falls between
Highway 21 and Highway 47 off of Silver Hill Road. Or, in other words, the “pinging”
evidence showed that Brodniey’s cell phone was located near Yazmin’s stolen cell phone.
And finally, Quintesha admitted telling police that no one else would have used
Brodniey’s cell phone.
Viewing the evidence in the light most favorable to the verdict, the jury could
rationally conclude that Brodniey participated in the aggravated robbery of the Safenet
trailer that involved the use of deadly weapons, firearms, that caused Francisca and
Yazmin to be fearful of serious bodily injury and resulted in the theft of cash, cell phones,
and other belongings. See TEX. PENAL CODE ANN. §§ 1.07(a)(17), 29.03; see also Johnson, 509
S.W.3d at 322 (noting that a firearm is a deadly weapon); Pitte v. State, 102 S.W.3d 786,
793 (Tex. App.—Texarkana 2003, no pet.) (“It is sufficient to constitute robbery if the
accused places the complainant in fear of bodily injury or death to the degree that reason
and common experience will likely induce the complainant to part with his property
against his will.” (internal quotations omitted)). In other words, based on the cumulative
Ray v. State Page 8 force of all the evidence when viewed in the light most favorable to the verdict, we
conclude that the evidence is sufficient to support Brodniey’s convictions for aggravated
robbery. See TEX. PENAL CODE ANN. § 29.03; see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at
2781; Hooper, 214 S.W.3d at 16-17. And to the extent that the evidence supports conflicting
inferences, we must presume that the jury resolved the conflicts in favor of the
prosecution and therefore defer to that determination. 2 See Jackson, 443 U.S. at 326, 99 S.
Ct. at 2793. Accordingly, we overrule Brodniey’s first issue.
II. BRODNIEY’S FIRST MOTION FOR MISTRIAL
In his second issue, Brodniey asserts that the trial court abused its discretion by
denying his first motion for mistrial. In particular, Brodniey argues that the State was
permitted to elicit evidence against him before a witness, Dwanteria Cross, asserted his
Fifth Amendment privilege and that the admission of this evidence deprived Brodniey
of his right to confront and cross-examine witnesses and his due process right to a fair
trial.
A. Applicable Law
2In particular, Brodniey offered the testimony of Bennie Ray Hawkins, who stated that Brodniey had come over to his house to eat barbecue and watch Aggie football on the afternoon of the robbery. However, Hendrick Patterson, Brodniey’s half-brother, recounted that he attended the same barbecue get- together that Hawkins referenced and that the get-together involved watching a Dallas Cowboys football game, which took place on the day after the robbery—Sunday. Nevertheless, this conflict in the evidence was for the jury to resolve. See Jackson v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781,2793, 61 L. Ed. 2d 560 (1979)
Ray v. State Page 9 We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings when
error is so prejudicial that expenditure of further time and expense would be wasteful
and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v.
State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a narrow class
of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004). Therefore, a trial court properly exercises its discretion to declare
a mistrial when, due to the error, “an impartial verdict cannot be reached” or a conviction
would have to be reversed on appeal due to “an obvious procedural error.” Wood, 18
S.W.3d at 648; see Ladd, 3 S.W.3d at 567.
Here, Brodniey complains about the testimony of Cross, who provided some
testimony and then invoked his Fifth Amendment privilege. Prior to invoking the Fifth
Amendment, Cross testified about statements Brodniey made regarding the aggravated
robbery at Safenet Insurance. Specifically, Cross stated the following:
Q [The State]: Okay. And during that—during that time when detectives were talking to you in the case, do you remember them asking you about an aggravated robbery involving Brodniey Ray?
A [Cross]: Yeah. Ray v. State Page 10 Q: And you remember telling them that he had talked to you about that aggravated robbery?
A: Yes, but I lied.
Q: Okay. So all of those things that you said in that audio were a lie?
A: Yes.
Q: Okay. So do you remember saying that Brodniey told you “he said it was some Mexican dude that pointed him out and said he didn’t have a mask on or something.”
...
A: Brodniey never told me that.
Q: Okay. So when you told them that, you were lying?
A: Yes. I heard it from the streets.
Later, the following exchange occurred:
Q [The State]: Mr. Cross, earlier when I was asking you a question, I was talking to you about a recording that you had listened to twice. And I was asking you if you—if you stated on there—or did you tell—did you tell those two detectives, quote, “He—“ he being Brodniey Ray, “He told me he did it but he was saying that nobody had evidence on it. So that’s really what we’re talking about the whole time. He was like ‘man, bro, they ain’t got no evidence on me.’ And I was, like, ‘man, did you do it?’”
A [Cross]: Plead the Fifth. Ray v. State Page 11 After being admonished by the trial court, Cross continued to refuse to answer
questions, relying upon the Fifth Amendment. Believing that Cross was not entitled to
invoke the Fifth Amendment privilege against self-incrimination because Cross was not
criminally liable in this matter, the trial court held Cross in contempt and sentenced him
to six months in jail with a $500 fine. At this point, Brodniey objected that he did not have
an opportunity to cross-examine Cross, made a motion to strike Cross’s testimony, and
moved for a mistrial. The trial court sustained Brodniey’s objection, instructed the jury
to disregard any testimony from Cross, and denied Brodniey’s motion for mistrial.
Regardless of the propriety of Cross’s assertion of his Fifth Amendment privilege,
we conclude that any prejudice associated with Cross’s testimony prior to the assertion
of his Fifth Amendment privilege was cured. As noted above, the trial court sustained
Brodniey’s objection and instructed the jury to disregard any testimony from Cross. This
Court has noted that, in most instances, an instruction to disregard will cure any
prejudicial effect. Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.—Waco 2007, pet. ref’d)
(citing Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000)). Furthermore,
“[a]n instruction to disregard is presumptively inadequate only in the most blatant cases;
only offensive or flagrantly improper conduct warrants reversal when there has been an
instruction to disregard.” Id. (citing Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim.
App. 1994)).
Ray v. State Page 12 In the instant case, the complained-of evidence is not of such a nature that the trial
court’s curative instruction was inadequate, especially considering that: (1) jurors are
presumed to follow the instructions of the trial court; (2) a “mistrial is an extreme remedy
which is appropriate only when the objectionable event is so emotionally inflammatory
that a curative instruction is not likely to prevent the jury from being unfairly prejudiced
against the defendant”; and (3) Brodniey has not directed us to any evidence in the record
demonstrating that the jury failed to follow the trial court’s instructions. Lusk v. State, 82
S.W.3d 57, 60-61 (Tex. App.—Amarillo 2002, pet. ref’d); see Thrift v. State, 176 S.W.3d 221,
224 (Tex. Crim. App. 2005) (“On appeal, we generally presume the jury follows the trial
court’s instructions in the manner presented.” (internal citations omitted)). Accordingly,
we cannot say that the trial court abused its discretion by denying Brodniey’s motion for
mistrial. See Archie, 221 S.W.3d at 699-700. We overrule Brodniey’s second issue.
III. EXCULPATORY EVIDENCE & BRODNIEY’S SECOND MOTION FOR MISTRIAL
In his third and fourth issues, Brodniey contends that he was deprived of his right
to a fair trial and his right to present a full defense because the State withheld exculpatory
evidence of three alternate suspects until the middle of trial in violation of Brady v.
Maryland and article 39.14 of the Code of Criminal Procedure. See 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963); see also TEX. CODE CRIM. PROC. ANN. art. 39.14 (West 2018).
Brodniey further argues that the trial court abused its discretion by denying his second
motion for mistrial based on the withholding of the purportedly exculpatory evidence.
Ray v. State Page 13 In these issues, Brodniey complains about a report that Bryan Police Officer Aaron
Arms filed on September 19, 2015, which indicated that, while investigating the robbery
in this case, Officer Arms saw three African-American males “a couple of blocks” from
where the robbery took place and was told by a citizen that one of the males had thrown
a Ruger BB gun under a vehicle. The three males were identified by name, and the report
states that one of the males was on bond for “several aggravated robberies.” Attached to
the report was a photograph of the Ruger BB gun. However, after determining that the
ditched gun was a BB gun with the magazine still in it, Officer Arms released the three
males. Brodniey asserts on appeal that the State improperly withheld this report by
waiting to produce the report until the third day of trial. In making this argument,
Brodniey alleges that the State violated both Brady and article 39.14 of the Code of
Criminal Procedure.
The State has an affirmative duty under the Due Process Clause of the United
States Constitution to disclose exculpatory or impeachment evidence that is material to
guilt. See United States v. Bagley, 473 U.S. 667, 677, 105 S. Ct. 3375, 3381, 87 L. Ed. 2d 481
(1985); see also Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Thomas v. State, 841 S.W.2d 399,
407 (Tex. Crim. App. 1992). The Court of Criminal Appeals has noted that favorable
evidence is “material” if there is a reasonable probability that the result of the proceeding
would have been different if the evidence had been disclosed to the defense. Thomas, 841
S.W.2d at 404.
Ray v. State Page 14 Likewise, under article 39.14(h), the State must “disclose to the defendant any
exculpatory, impeachment, or mitigating document, item, or information in the
possession, custody, or control of the state that tends to negate the guilt of the defendant
or would tend to reduce the punishment for the offense charged.” TEX. CODE CRIM. PROC.
ANN. art. 39.14(h). When the complained-of evidence is disclosed during trial, as is the
case here, the question turns on whether the defendant was prejudiced by the delayed
disclosure. See Williams v. State, 995 S.W.2d 754, 761-62 (Tex. App.—San Antonio 1999,
no pet.); see also Painter v. State, No. 11-15-00318-CR, 2017 Tex. App. LEXIS 11935, at **19-
20 (Tex. App.—Eastland Dec. 21, 2017, pet. ref’d) (mem. op., not designated for
publication).
Furthermore, when previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. [Williams, 995 S.W.2d] at 762. A defendant’s failure to request a continuance waives any Brady violation. Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d); Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.—Austin 2002, pet. ref’d); Williams, 995 S.W.2d at 762. Likewise, a defendant’s failure to request a continuance also waives any violation under Article 39.14(h). See O’Kane v. State, No. 04-16-00526-CR, 2017 Tex. App. LEXIS 6927, 2017 WL 3159462, at *3 (Tex. App.—San Antonio July 26, 2017, no pet.) (mem. op., not designated for publication) (“By failing to file a written, sworn motion for continuance, [the defendant] failed to preserve error” based on the State’s failure to comply with Article 39.14(h).”); see also Prince v. State, 499 S.W.3d 116, 120-21 (Tex. App.—San Antonio 2016, no pet.) (same).
Painter, 2017 Tex. App. LEXIS 11935, at *20.
In the trial court, Brodniey failed to request a continuance in response to the State’s
proffer of Officer Arms’s report. Therefore, even if we assume without deciding that the
Ray v. State Page 15 State had a duty to disclose the challenged evidence, Brodniey waived any violation of
Brady or article 39.14(h) by failing to request a continuance. See Prince, 499 S.W.3d at 120-
21; see also Painter, 2017 Tex. App. LEXIS 11935, at *20; O’Kane, 2017 Tex. App. LEXIS 6927,
at *8. Accordingly, we overrule Brodniey’s third and fourth issues.
IV. CONCLUSION
Having overruled all of Brodniey’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurring) Affirmed Opinion delivered and filed October 10, 2018 Do not publish [CRPM]
Ray v. State Page 16