Opinion issued August 3, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-01079-CR ——————————— CHARLES R. JONES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1510058
MEMORANDUM OPINION
Charles Jones was convicted of aggravated robbery and sentenced to 30
years’ confinement. His appellate counsel filed an Anders brief,1 declaring there
1 See Anders v. California, 386 U.S. 738 (1967). were no nonfrivolous bases for appeal. After this court affirmed his conviction,2
the Court of Criminal Appeals granted Jones’s pro se petition for discretionary
review and remanded.3
On remand, Jones presents three issues. In the first two, Jones challenges the
sufficiency of the evidence and the trial court’s ruling to denying his motion for
mistrial. The State opposes both issues. In the third issue, Jones contends that the
case must be remanded for a new punishment trial because the State failed to
properly invoke the enhancement punishment range. The State concedes the third
issue and agrees that remand is proper.
Because we overrule Jones’s first two issues and sustain his third, we affirm
the portion of the trial court’s judgment finding Jones guilty of aggravated robbery,
reverse the portion of the judgment imposing a sentence of 30 years’ confinement,
and remand for a new punishment trial.
Background
K. Wright is a FedEx driver. In May 2016, she was driving another
employee’s route. One of her stops was at an AT&T store in Webster to deliver
2 Jones v. State, No. 01-18-01079-CR, 2020 WL 1466982 (Tex. App.—Houston [1st Dist.] Mar. 26, 2020) (mem. op., not designated for publication) (per curiam), vacated, PD-0380-20, 2020 WL 5814603 (Tex. Crim. App. Sept. 30, 2020) (per curiam). 3 Jones v. State, PD-0380-20, 2020 WL 5814603 (Tex. Crim. App. Sept. 30, 2020) (per curiam).
2 boxes of cell phones. As she got out of her truck to begin the delivery, a man got
out of an SUV and walked toward her. He was wearing a FedEx shirt and had a
white hockey mask covering his face. She thought it was a coworker playing a
joke. But then she saw that he had a gun. The robber got into her truck and told her
to drive away.
Two people saw Wright being robbed. A. Stromeyer and M. Lutkenhaus
were on their way to the AT&T store when they saw the robber point the gun at
Wright. Lutkenhaus has a license to carry a concealed weapon. He drew his
weapon and approached the FedEx van, but when Wright saw Lutkenhaus, she
thought he was assisting the robber, not trying to help her. Lutkenhaus could not
find a position to safely help Wright. When the FedEx truck began to drive away,
Lutkenhaus got back into his vehicle with Stromeyer and followed the truck.
The robber had Wright stop the truck at a second location. He asked her
which box had the phones in it. He could not determine which boxes were the
correct ones, so he had Wright help him locate the boxes he was searching for.
Wright found and gave him the AT&T boxes. Wright thought the robber would
leave at that point, but he pointed the gun at her again and told her to get into the
back of the FedEx truck. She did. Once he was in the front of the truck, she closed
the door between the two spaces, opened the back of the truck, and ran into a
nearby store for help. The robber drove away in the FedEx truck.
3 Meanwhile, Lutkenhaus and Stromeyer were on the phone with a 911
operator while they followed the FedEx truck. They did not see Wright run from
the truck into the store. They thought she was still in the truck with the robber, so
they continued to follow the FedEx truck to a third location at an apartment
complex. Lutkenhaus and Stromeyer waited there for the police to arrive.
After the police arrived, as they were talking to Lutkenhaus, Lutkenhaus was
told that a suspect had been detained and asked if he could attempt an
identification. Lutkenhaus told the police that he would be unable to identify the
robber by appearance because the robber wore a hockey mask to shield his face.
But Lutkenhaus thought he could identify the robber by his clothing. Lutkenhaus
said that the robber wore a white hockey mask, a black hoodie, and black gloves.
The police showed Lutkenhaus a black hoodie and gloves that they found near
where Jones was arrested. Lutkenhaus said they were the same items he saw the
robber wearing earlier.
Sergeant M. Quintanilla with the Houston Police Department testified about
encountering Jones. He was told that a stolen vehicle was left at an apartment
complex. He was told that the suspect ran west. Quintanilla went that direction to a
gas station. He saw a man run past him. Quintanilla followed and found Jones
hiding behind a dumpster. Jones was taking off a black hoodie. Quintanilla began
to give Jones demands. Jones complied and was arrested. Quintanilla recovered the
4 black hoodie, which had been shoved between the dumpster and the store wall. The
police looked around the area for a weapon but did not locate one.
Quintanilla returned to the area the next day to search again for the weapon.
He retraced the path between where the FedEx truck was recovered and where he
arrested Jones. Along that path, he found some items in the shrubs. He found a
black semiautomatic gun and a purple and black FedEx shirt. Quintanilla identified
Jones in the courtroom as the person he arrested.
The police compared Jones’s DNA sample to DNA found on the black
hoodie stuffed between the dumpster and store. The DNA analysis determined that
Jones was a major contributor of the DNA on the hoodie. The other items tested
did not have enough DNA data for interpretation.
The police obtained a search warrant to search the phone that Jones had with
him when he was arrested. Investigator N. Gates with the Harris County District
Attorney’s office testified about extracting data from the phone. The data was
compiled into a report. Officer J. Scott testified about text messages detailed in the
report. On the morning of the robbery, between 8:00 and 8:30 am, Jones sent four
texts:
• U know Today Thurs I got some major shit going u forgot? No! I can’t depend on to take ass for shit
• Just got a call from my home boy . . . I’m bout to miss some major major money on that truck . . . Thanks
5 • Just got a CAll from my boy I’m bout to miss out on some major major money . . . . . . . thanks
• Just got a call from my home boy we bout to miss the major load on FexEd jis
Thus, on the morning of the robbery of a FedEx truck, Jones sent text messages
about a “major load on FedEx” and “major major money.” One of those messages
was to Jones’s girlfriend. The police investigation determined that his girlfriend
drives an SUV that matches the vehicle that the robber got out of when he
approached the FedEx driver while holding a gun.
After the FedEx driver, the two eyewitnesses who followed the FedEx truck,
and the police officers and investigators testified, the State rested. The defense
rested without calling any witnesses. After closing arguments, the jury deliberated
and returned a verdict of guilty on the charge of aggravated robbery.
At the punishment phase of the trial, the State had “pen packets” admitted
into evidence. These documents included judgments of conviction and sentencing
orders for past offenses. Each identified the convicted defendant as Charles Jones.
The first was a judgment of conviction for the offense of burglary of a habitation
with intent to commit theft. The date of the judgment was November 20, 1998. The
judgment includes a notation that the conviction was appealed. There is no
indication in the record of the appeal’s outcome.
6 The second was a judgment of conviction for the offense of aggravated
robbery. The date of the judgment was the same as the burglary conviction. This
judgment also included a notation that it was appealed but no indication of the
appeal’s outcome.
Documentation of three other offenses were included in the pen packet.
These convictions were for possession of a controlled substance in 1998,
possession with intent to deliver in 2011, and credit card abuse in 2013.
There was only one witness during the punishment phase of the trial. R.
Reed testified that the fingerprint he obtained from Jones on the day of trial
matched the fingerprints on the criminal judgments of conviction and sentencing
orders presented to the jury. In other words, the person whose fingerprints were
taken upon sentencing for various past crimes is the same person charged for this
aggravated robbery and identified in court as Charles Jones.
During closing arguments, the jury was told that, if they found that Jones
had two prior enhancement offenses, based on the evidence presented, then the
punishment range was between 25 years and life. The defense asked for a sentence
on the lower end, arguing that Jones’s past crimes were linked to drug use and the
lack of a support system. The State asked for a 50-year sentence. The jury returned
a sentence of 30 years. Jones appealed.
7 Sufficiency of the evidence
In his first issue, Jones challenges the sufficiency of the evidence to support
his conviction.
A. Standard of review
We review sufficiency of the evidence using the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 318 (1979). See Brooks v. State, 323 S.W.3d
893, 898–912 (Tex. Crim. App. 2010). Under that standard, “the relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” See Jackson, 443 U.S. at 319; Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider all reasonable
inferences that may be drawn from the evidence in making our determination,
including all direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not
establish the criminal offense charged. See Jackson, 443 U.S. at 314, 320; Laster,
8 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury
may choose to believe all, some, or none of a witness’s testimony. See Davis v.
State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And
the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “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; Clayton, 235 S.W.3d at
778. If there are conflicts in the evidence, we must presume the factfinder resolved
the conflicts in favor of the verdict and defer to that determination, as long as it is
rational. See Jackson, 443 U.S. at 326; Penagraph, 623 S.W.2d at 343 (“A jury is
entitled to accept one version of the facts and reject another or reject any of a
witness’[s] testimony.”). Contradictory evidence will not diminish the legal
sufficiency of the evidence that supports the verdict. See McDonald v. State, 462
S.W.2d 40, 41 (Tex. Crim. App. 1970). If the evidence is insufficient, we must
9 reverse and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41
(1982).
B. Legally sufficient evidence supports the judgment of conviction
The evidence was legally sufficient. Wright testified that a man wearing a
FedEx shirt robbed her at gunpoint. Stromeyer and Lutkenhaus testified that they
saw the robbery occur. They recall seeing the robber wear a black hoodie. A search
of the area where Jones was arrested revealed a discarded FedEx shirt, a hidden
black hoodie with Jones’s DNA on it, and a gun matching the description given by
Wright and Lutkenhaus. There was more. Lutkenhaus followed the FedEx truck
from the site of the robbery to where it was abandoned. He and Stromeyer alerted
the police to where the FedEx truck was abandoned. Jones was found shortly
afterward by the police. He was behind a dumpster at a nearby property. The
hoodie was stashed behind the dumpster. The FedEx shirt and gun were found
along the path between the two locations. Moreover, a search of Jones’s phone,
which was taken from him when he was arrested, revealed text messages from
Jones on the morning of the robbery discussing a “major load on FedEx” and
“major major money.” And the vehicle the robber exited to begin the robbery
matched the vehicle of Jones’s girlfriend—who was one of the people Jones texted
that morning about a major load on FedEx.
10 While much of the evidence is circumstantial, its cumulative force provided
more than a scintilla of evidence to support a reasonable conclusion that Jones was
the FedEx robber. See Jackson, 443 U.S. at 320 (setting forth standard for legal
insufficiency). To the extent there was any evidence suggesting otherwise, the jury
has the exclusive role of weighing the evidence and the witnesses’ credibility, and
we will defer to their determinations as evinced by their verdict of guilt. See id. at
326; McDonald, 462 S.W.2d at 41.
Ruling to Deny Mistrial
In his second issue, Jones challenges the trial court’s denial of his motion for
mistrial.
A. Standard of review and applicable law
A mistrial halts the trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile. Ladd v.
State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court may properly
exercise its discretion to declare a mistrial if an impartial verdict cannot be reached
or if a verdict of conviction could be reached but would have to be reversed on
appeal due to an obvious procedural error. Id.
An outburst by a witness or other bystander “‘which interferes with the
normal proceedings of a trial will not result in reversible error unless the defendant
shows a reasonable probability that the conduct interfered with the jury’s verdict.’”
11 Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (quoting Landry v.
State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985)). Instructions to the jury are
generally considered sufficient to cure improprieties, such as witness outbursts,
because it is presumed that the jury will follow those instructions. Coble v. State,
330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Gamboa, 296 S.W.3d at 580. We
review the denial of a motion for mistrial under an abuse of discretion standard.
Coble, 330 S.W.3d at 292; Gamboa, 296 S.W.3d at 580. An appellate court views
the evidence in the light most favorable to the trial court’s ruling, considering only
those arguments before the court at the time of the ruling. Wead v. State, 129
S.W.3d 126, 129 (Tex. Crim. App. 2004). The ruling must be upheld if it was
within the zone of reasonable disagreement. Id. Our determination of whether an
error requires a mistrial is made by examining the particular facts of the case.
Ladd, 3 S.W.3d at 567.
A mistrial is an appropriate remedy only in “extreme circumstances” for a
narrow class of highly prejudicial and incurable errors. Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex.
Crim. App. 2000). Its occurrence should be “exceedingly uncommon.” Williams v.
State, 417 S.W.3d 162, 175 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
Because it is an extreme remedy, a mistrial should be granted “only when residual
prejudice remains” after less drastic alternatives are explored. Barnett v. State, 161
12 S.W.3d 128, 134 (Tex. App.—Fort Worth 2005), aff’d, 189 S.W.3d 272 (Tex.
Crim. App. 2006).
B. No abuse of discretion is shown on this record
As for the identity of the robber, Wright testified that she was robbed by an
unknown man in a hockey mask. She testified that she did not “know what he
looked like” because he wore his mask the entire time he was in her FedEx truck.
On cross-examination, she again confirmed that she did not see the robber’s face
and could not identify him. She could only identify the robber by what he wore and
the weapon he held: a FedEx shirt and a white hockey mask, along with a black,
small gun.
Just after Wright testified, defense counsel moved for a mistrial. Counsel
stated that he heard Wright blurt out as she was leaving the witness stand, “That’s
him,” and argued that the statement was made near the jury. There is no indication
in the record that anyone, other than defense counsel, heard the alleged statement.
The Court responded by instructing the jury that they were to disregard any
statement by Wright that was made after leaving the stand, if they heard any
statement. The trial court asked the jury if it understood their instruction, and the
jurors replied in unison, “Yes.” The trial court followed that instruction with a
second instruction that the jurors were not to consider such statement during its
13 deliberations or even mention it. Jones made no further objection or motion on the
matter.
An instruction to disregard is generally sufficient to cure prejudicial effects
of an improper statement. See Barney v. State, 698 S.W.2d 114, 125 (Tex. Crim.
App. 1985) (witness’s reference to the defendant as an “ex-con” cured by
instruction to disregard statement). And we generally presume the jury follows the
trial court’s instructions, though the presumption is rebuttable. See Colburn v.
State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Waldo v. State, 746 S.W.2d
750, 752–53 (Tex. Crim. App. 1988).
Here, the witness had already testified that the robber’s face was covered by
a hockey mask throughout the robbery. On cross-examination, she confirmed that
she did not see the robber’s face and would be unable to identify him. Her only
source of identifying him was by his clothing and gun. Her alleged statement after
leaving the witness stand of “that’s him” conflicts with her sworn testimony, just
minutes earlier, that she could not identify the robber. This inconsistency weighs
against a determination that the alleged statement was so extreme and prejudicial
as to require a mistrial. Similar outbursts upon leaving the witness stand have,
likewise, been held to be curable by an instruction to disregard. See Jimenez v.
State, 298 S.W.3d 203, 213 (Tex. App.—San Antonio 2009, pet. ref’d) (witness,
when not being questioned by either counsel, blurted out, “Well, I got to say it. Mr.
14 Jimenez planned the murder. I’m sorry, but he did,” and the appellate court held
that the event was curable by jury instruction to disregard); see also Jay M. Zitter,
Annotation, EMOTIONAL MANIFESTATIONS BY VICTIM OR FAMILY OF VICTIM
DURING OR IMMEDIATELY BEFORE OR AFTER OWN TESTIMONY DURING CRIMINAL
TRIAL AS GROUND FOR REVERSAL, NEW TRIAL, OR MISTRIAL, 99 A.L.R. 6th 113
(2014) (discussing cases from multiple jurisdictions in which outbursts from
witnesses were held to be curable by jury instruction); cf. Gonzalez v. State, No.
14-11-00995-CR, 2013 WL 396075 (Tex. App.—Houston [14th Dist.] Jan. 3,
2013, no pet.) (mem. op., not designated for publication) (trial court did not abuse
its discretion in denying motion for mistrial although, as she was leaving the
witness stand, the complainant held her hands in prayer and said “please” to the
jury, given that trial court admonished jurors not to consider her plea and jurors
confirmed they could disregard the plea).
Jones had the burden to rebut the presumption that the curative instruction
was adequate. Colburn, 966 S.W.2d at 520. Jones presented no evidence on the
matter. He did not try to establish a record of where the witness was when the
statement was made, how close she was to the jury, whether any juror heard her
statement, or the possibility that the jury would be unable to follow the trial court’s
instruction. The record is limited to counsel’s own statement that counsel heard the
remark. After the trial court gave the instruction, Jones dropped the matter, neither
15 seeking to establish a record on the event nor objecting that the instruction was
insufficient.
The trial court gave a curative instruction. The jury stated that they
understood the instruction. And Jones presented no evidence to rebut the
presumption that the jury complied with the instruction. Given all the evidence—
including Wright’s testimony under oath that she could not identify the robber
because his face was shielded throughout their encounter—and the trial court’s
instruction to the jury to disregard any statement she made once she left the
witness stand, we cannot say that the prejudicial effect of the alleged statement was
so severe as to nullify the instruction to disregard. Nor can we conclude that the
trial court’s refusal to use the extreme remedy of declaring a mistrial was outside
the zone of reasonable judicial disagreement. See Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1991). Thus, the trial court did not abuse its
discretion.
Appellant’s second issue is overruled.
Evidence for Enhancement
In this third issue, Jones contends reversal for a new punishment trial is
required because the State’s evidence to invoke an enhanced punishment range
failed to establish all aspects of the prior conviction to allow enhancement.
16 A. Applicable law
When seeking enhancement based on a conviction of a prior offense, the
State must prove beyond a reasonable doubt that the prior conviction exists and
that the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). When the State provides prima facie evidence of an
enhancement conviction, an appellate court will presume the conviction is final if
the record is silent about finality. Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim.
App. 2007). If, however, the evidence raises a question of finality, the State has the
burden of proof to show that the enhancement conviction was a final conviction.
See id. When a conviction has been appealed, it is not considered final until it has
been affirmed on appeal and the appellate court’s mandate has issued. Henry v.
State, 331 S.W.3d 552, 555 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Consequently, if the State offers proof showing that a prior conviction was
appealed, the State must put on evidence proving that a mandate issued. Id. at 556;
Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005).
B. As the State concedes, there was legally insufficient evidence of a final conviction for enhancement
The State concedes that the judgments submitted into evidence to support
enhancement each contained a notation that the judgments were appealed. The
State did not submit any evidence that the judgments were affirmed or that the
appellate court’s mandates issued. Accordingly, the evidence was insufficient to
17 support elevating the punishment range under the habitual offender statute.
Fletcher, 214 S.W.3d at 8; Henry, 331 S.W.3d at 555; see also TEX. PENAL CODE
§ 12.42 (enhancement for habitual offenders). Such an error requires reversal. See
Fletcher, 214 S.W.3d at 9 (reversing intermediate appellate court and holding that
appellate court cannot take judicial notice that a mandate issued; instead, the State
must be held to its burden to establish finality where evidence exists of an appeal,
which then allows the defendant an opportunity to rebut the State’s evidence).
We sustain Jones’s third issue.
Conclusion
We reverse the portion of the trial court’s judgment imposing a sentence. We
affirm the remainder of the judgment of conviction. And we remand for a new
punishment trial.
Sarah Beth Landau Justice
Panel consists of Justices Radack, Landau, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).