Kevin Jason Gonzales v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-21-00360-CR

Kevin Jason GONZALES, Appellant

v.

The STATE of Texas, Appellee

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2020CR0029 Honorable Michael E. Mery, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Delivered and Filed: March 22, 2023

AFFIRMED

A jury convicted appellant Kevin Gonzales of one count of robbery, a second-degree felony

enhanced by a prior adjudication for delinquent conduct constituting a felony offense, and the trial

court assessed punishment at confinement for forty years in the Texas Department of Criminal

Justice and a fine of ten thousand dollars. See TEX. PEN. CODE ANN. §§ 29.02, 12.42(f). In four

issues, Gonzales contends that: (1) the evidence is insufficient to support his conviction for the

offense of robbery; (2) the trial court erred in refusing his jury-charge request for the lesser-

included offense of theft; (3) the trial court erred in admitting scientifically unreliable fingerprint 04-21-00360-CR

analysis; and (4) the trial court erred in admitting his fingerprints from a prior criminal proceeding.

We affirm.

I. BACKGROUND

The jury considered the testimony of, among others, Mehru Lalani, a store clerk, and

Shannon Standifer, a latent fingerprint examiner with the San Antonio Police Department.

Lalani testified that, on August 15, 2019, she was working as a cashier at Mariposa

Groceries. On that afternoon, months before the COVID-19 pandemic, Lalani noticed a man with

tattoos on his arm and hand enter the store while wearing a bandana that covered his face. The

man’s masked appearance immediately raised Lalani’s suspicion. The man approached Lalani,

“banged on the lottery box,” and exclaimed to her, “give me money, give me money.” Lalani

described the man’s voice as “strong” and “demanding” and how she felt “scared” and “truly

terrified.” Lalani testified that in that moment she thought he might have a weapon and “he’s

going to hurt me.” Lalani then put her hands up and gave the man approximately two-hundred

dollars that was kept underneath the counter but outside of the cash register. The man responded

by telling her, “open the register and give me the money.” Lalani complied by opening the cash

register and giving the man money from it.

Standifer testified that she aided the investigation through fingerprint analysis. Standifer

identified State’s Exhibit 9 as a latent print that was “lifted” from the front door of Mariposa

Groceries. Before trial, Standifer, in accordance with a court order, took a fingerprint sample from

Gonzales. This sample was marked as State’s Exhibit 10. The trial court admitted, without

objection, State’s Exhibits 9 and 10. On examination by the State, Standifer testified:

STATE: I want to clarify that State’s Exhibit 9 were the latent prints lifted at the scene, correct?

STANDIFER: Yes.

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STATE: And State’s Exhibit 10 was a print that you did this morning of the defendant you identified, correct?

STATE: And from those you said that the right thumb and the right palm matched the interior top left door; is that correct?

The State also questioned Standifer on State’s Exhibits 11, 12, and 13, which were purportedly

Gonzales’s fingerprints that had been extracted from a Texas Department of Public Safety

database. Gonzales objected to these three exhibits on hearsay grounds. Thereafter, the State did

not urge their admission, and the trial court did not admit them into evidence.

The jury convicted Gonzales on one count of robbery, a second-degree felony enhanced by

a prior adjudication for delinquent conduct constituting a felony offense. The trial court assessed

punishment at confinement for forty years in the Texas Department of Criminal Justice and a fine

of ten thousand dollars. Gonzales timely appeals from his judgment of conviction and sentence.

II. DISCUSSION

A. Sufficiency of the Evidence

In Gonzales’s first issue, he contends that the evidence is insufficient to support his

conviction for the offense of robbery.

1. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard set forth in

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). See Blea v. State, 483 S.W.3d 29, 33 (Tex.

Crim. App. 2016). Under that standard, we examine all the evidence in the light most favorable

to the verdict and resolve all reasonable inferences from the evidence in the verdict’s favor to

determine whether any rational trier of fact could have found the essential elements of the charged

offense beyond a reasonable doubt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).

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An appellate court cannot act as a thirteenth juror and make its own assessment of the evidence.

Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). Rather, a court’s role on appeal is

restricted to guarding against the rare occurrence when the factfinder does not act rationally. Id.

This rationality requirement is a key and explicit component of the Jackson sufficiency standard.

See Jackson, 443 U.S. at 319.

A court conducting a sufficiency review must consider the cumulative force of all the

evidence, even evidence not properly admitted. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.

App. 2017); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Additionally, direct and

circumstantial evidence are equally probative, and circumstantial evidence alone can be sufficient

to establish guilt. Nowlin, 473 S.W.3d at 317.

“The trier of fact is the exclusive judge of the credibility and weight of the evidence and is

permitted to draw any reasonable inference from the evidence so long as it is supported by the

record.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). We must defer to its

determinations. Nowlin, 473 S.W.3d at 317. However, inferences based on mere speculation are

not sufficient to support a criminal conviction. Ramsey, 473 S.W.3d at 809.

2. Applicable Law

A person commits the offense of 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. TEX. PEN. CODE ANN. § 29.02. A person

commits theft if he unlawfully appropriates property with intent to deprive the owner of property.

Id. at § 31.03(a).

Gonzales references Boston v. State, 410 S.W.3d 321 (Tex. Crim. App. 2013), and Brown

v. State, No. 13-19-00276-CR, 2020 WL 5052762 (Tex. App.—Corpus Christi-Edinburg July 30,

2020, no pet.) (mem. op., not designated for publication), in support of his first issue. In Boston,

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a convenience store robber and his accomplice were tried on one count of aggravated robbery.

Boston, 410 S.W.3d at 322. The store clerk, according to the Texas Court of Criminal Appeals,

testified:

that she did not realize that [the robber] had a firearm until she saw the video of the robbery. She also testified that she was “very upset” and “shocked” during the robbery. When asked if [the accomplice] threatened her, she stated that the robbers “didn’t say anything.” When asked if she perceived [the robber’s] actions as threatening, [the clerk] stated that putting a firearm on the counter is threatening behavior, but she conceded that she never saw the firearm. She also testified that, during the robbery, she feared that she could be injured, perhaps seriously, and that she would not have run outside after [the accomplice] and [the robber] if she knew that they had a firearm.

Id. A jury convicted the accomplice under the law of parties, and the Texas Court of Criminal

Appeals affirmed the conviction. Id. at 323, 327. The court explained the distinction between

when a robber threatens a person with imminent bodily injury or death and when a robber places

a person in fear of imminent bodily injury or death. Specifically,

[R]obbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone actually is placed in fear.

Boston, 410 S.W.3d at 325 (quoting Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App.

2011)). Alternatively,

[O]ne can threaten without necessarily placing another in fear of imminent bodily injury. A logical inference . . . is that “threatening,” as used in the Penal Code, does not require that the intended victim perceive or receive the threat, but “placing another in fear of imminent bodily injury does.”

Boston, 410 S.W.3d at 326 (quoting Olivas v. State, 203 S.W.3d 341, 346 (Tex. Crim. App. 2006)).

In Brown, the appellant was convicted on two counts of aggravated robbery of a store.

2020 WL 5052762, at *1. On appeal, the appellant argued that because the store clerk did not

testify, there is insufficient evidence that he was actually placed in fear or that he perceived a threat

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of imminent bodily injury or death during the robbery. Id. at *3. The Thirteenth Court of Appeals

disagreed, writing that:

Although [the store clerk] refused to testify regarding any specifics of the robbery, he acknowledged under oath that he was in the robbery surveillance video. The video showed [the store clerk] pacing, rubbing his face, and placing his hands on his head. The video also shows [the store clerk] opening the safe with [the accomplice] nearby, holding a firearm.

Id. (footnote omitted).

3. Analysis

Generally, Gonzales argues that the evidence is insufficient to support a finding that he

intentionally or knowingly threatened or placed Lalani in fear of imminent bodily injury or death.

Specifically, Gonzales argues that the evidence is insufficient because “he only banged his hand

on the counter or next to a display next to the count[er]. He uttered no threatening words. He did

not reach into the cash register. He only demand[ed]” money. We disagree. Lalani, similar to the

clerk in Boston, 410 S.W.3d at 323, testified that she was “scared” and “truly terrified” by

Gonzales’s words and actions, which included banging on the lottery box and demanding money

from the cash register in a “strong” voice. Gonzales’s implicit contention that “threatening words”

are required is not supported by Brown, 2020 WL 5052762, at *3, a case in which the store clerk

refused to testify regarding the robbery specifics. Id. Viewing the evidence in the light most

favorable to the verdict, we conclude a rational fact finder could have found beyond a reasonable

doubt that Lalani was fearful and perceived a threat of imminent bodily injury or death. TEX. PEN.

CODE ANN. § 29.02. We overrule Gonzales’s first issue.

B. Lesser-Included Offense

In Gonzales’s second issue, he contends that the trial court erred in refusing his jury-charge

request for the lesser-included offense of theft.

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1. Standard of Review and Applicable Law

We conduct a two-part Aguilar/Rousseau analysis to determine whether the trial court was

required to provide the jury with an instruction on a requested lesser-included offense. See

Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d

556, 558 (Tex. Crim. App. 1985); see also State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App.

2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012).

First, we must determine as a matter of law whether the requested instruction is indeed a

lesser-included offense of the offense charged, using the “cognate-pleadings” approach. Meru,

414 S.W.3d at 162; Cavazos, 382 S.W.3d at 382. Gonzales and the State agree that theft is a lesser

included offense of robbery. See Earls v. State, 707 S.W.2d 82, 84–85 (Tex. Crim. App. 1986)

(“[t]heft, by whatever method committed,” is a lesser-included offense of robbery, when the

indictment alleges that the defendant committed a violent act in the course of committing theft);

see also Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (finding theft to be a lesser-

included offense of robbery).

Second, we must review the evidence presented at trial and determine whether there is any

evidence in the record that would permit a rational jury to find that if the defendant is guilty, he is

guilty only of the lesser offense. See Meru, 414 S.W.3d at 162–63; Guzman v. State, 188 S.W.3d

185, 188–89 (Tex. Crim. App. 2006). In making this determination, we should not consider

whether the evidence presented was “credible, controverted, or in conflict with other evidence.”

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). “[A]nything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge on a lesser offense.” Cavazos, 382

S.W.3d at 385; see also Meru, 414 S.W.3d at 163.

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2. Analysis

In Gonzales’s brief, he argues that:

[T]he lesser included offense of theft must have been given to the jury. Without the lesser included offense, the jury was forced to decide the defendant was not guilty or did some bad act by taking the money from the clerk while banging his hands on the counter. His behavior certainly wasn’t mundane by any means, but was it enough to amount to a robbery, is the question. The jury had no middle ground on which to place their doubts. Therefore, the denial of the jury charge created harm, because the jury’s hand was forced to make the only decision available by which to punish the Appellant for his behavior. Indeed, due to the amount of money taken, the jury could have held Appellant guilty of Theft of $200, a Class B misdemeanor, if they wanted to punish him, but not to the extent of punishing him to the extent of prison for 40 years.

The State contends that Gonzales’s second issue fails because “there was no affirmative evidence

presented at trial from which a rational jury could have found that if [Gonzales] was guilty, he was

guilty only of theft, and not robbery.”

A rational jury could only have found Gonzales guilty upon concluding that Lalani parted

with the money only because of Gonzales’s demands, which caused Lalani to become “scared”

and “truly terrified.” If Gonzales unlawfully appropriated the money, it was only because he

intentionally or knowingly threatened or placed Lalani in fear of imminent bodily injury or death.

See TEX. PEN. CODE ANN. §§ 29.02, 31.03(a). In other words, on this record, if Gonzales

committed theft, he also committed robbery. See id. Gonzales has not directed us — and we

cannot find — any evidence in the record that would permit a rational jury to find that if Gonzales

is guilty, he is guilty only of the lesser offense of theft. See Meru, 414 S.W.3d at 162–63.

Therefore, we overrule Gonzales’s second issue.

C. Fingerprint Evidence

In Gonzales’s third and fourth issues, he contends that the trial court erred in admitting

scientifically unreliable fingerprint analysis and his fingerprints from a prior criminal proceeding.

At times, Gonzales couches these contentions as a violation of the Confrontation Clause. The

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State responds by arguing that Gonzales failed to preserve these alleged errors for appellate review.

Gonzales does not direct us to — and we cannot find — any part of the record wherein he lodged

an objection that comports with his third and fourth issues. Indeed, Gonzales lodged no objection

to the State’s examination of Standifer wherein she linked him to State’s Exhibits 9 and 10. “An

objection stating one legal theory [at trial] may not be used to support a different legal theory on

appeal.” Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State,

803 S.W.2d 272, 292 (Tex. Crim. App. 1990); see also Paredes v. State, 129 S.W.3d 530, 535

(Tex. Crim. App. 2004) (holding that defendant failed to preserve Confrontation Clause complaint

for appellate review when trial objection was solely on hearsay grounds). We conclude that

Gonzales failed to preserve his third and fourth issues. Accordingly, we overrule Gonzales’s third

and fourth issues.

III. CONCLUSION

We affirm the trial court’s judgment.

Rebeca C. Martinez, Chief Justice

DO NOT PUBLISH

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