                                                                 ACCEPTED
                                                             01-15-00410-CR
                                                  FIRST COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                       8/26/2015 10:09:25 AM
                                                       CHRISTOPHER PRINE
                                                                      CLERK




      No. 01-15-00410-CR                    FILED IN
                                     1st COURT OF APPEALS
                                         HOUSTON, TEXAS
               In the                8/26/2015 10:09:25 AM
        Court of Appeals             CHRISTOPHER A. PRINE
              For the                         Clerk
      First District of Texas

    ♦

           No. 1459599
    In the 232nd District Court
     Of Harris County, Texas

    ♦

    RICHARD RECIO, JR.
          Appellant
             V.
    THE STATE OF TEXAS
          Appellee

    ♦

     APPELLANT’S BRIEF

    ♦

                      CELESTE BLACKBURN
                      Attorney at Law
                      333 N. Rivershire Dr.; Suite 285
                      Conroe, Texas 77304
                      Texas State Bar Number: 24038803
                      Telephone: 936.703.5000
                      celesteblackburn@gmail.com

ORAL ARGUMENT NOT REQUESTED
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 38.1(e), the Appellant does not request oral

argument.


                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.1(a), a complete list of the names of all

interested parties is provided below.

Trial Judge:                            Honorable Mary Lou Keel, Presiding

Appellant:                              Richard Recio, Jr.
                                        01995432
                                        Garza West Unit
                                        4250 Highway 202
                                        Beeville, Texas 78102

Appellate Counsel for Appellant:        Celeste Blackburn
                                        333 N. Rivershire Dr., Suite 285
                                        Conroe, Texas 77304

Trial Counsel for Appellant:            Craig Hughes
                                        7322 Southwest Freeway, Suite 1100
                                        Houston, Texas 77074

Appellate Counsel for the State:        Alan Curry
                                        Harris County District Attorney’s Office
                                        1201 Franklin, Suite 600
                                        Houston, Texas 77002

Trial Counsel for the State:            Aimee Bolletino
                                        Harris County District Attorney’s Office
                                        1201 Franklin, Suite 600
                                        Houston, Texas 77002



                                          i
                                       TABLE OF CONTENTS


STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED...............................................................................................1

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENTS ...................................................................... 4

APPELLANT’S FIRST POINT OF ERROR ............................................................ 4

APPELLANT’S SECOND POINT OF ERROR ....................................................... 9

CONCLUSION ........................................................................................................11

CERTIFICATE OF SERVICE ................................................................................12

CERTIFICATE OF COMPLIANCE .......................................................................12




                                                         ii
                                          INDEX OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)(plurality op.)............................ 9
Hinojosa v. State, 4 S.W.3d 240 (Tex. Crim. App. 1999)................................................... 7
Jackson v. Virginia, 443 U.S. 307 (1979) ........................................................................... 9
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999). ........................................................ 5
Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000) ..................................................... 7
Sewell v. State, 696 S.W.2d 559 (Tex. Crim. App. 1983) ................................................... 5
State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993) .............................................. 5



STATUTES

TEX. PENAL CODE §29.02(a)(2)........................................................................................... 9




RULES

TEX. R. APP. P. 38.1(a) ......................................................................................................... i
TEX. R. APP. P. 38.1(e) ......................................................................................................... i
TEX. R. EVID. 401 ................................................................................................................ 6
TEX. R. EVID. 403 ................................................................................................................ 6
TEX. R. EVID. 404(b) ........................................................................................................... 6




                                                                iii
TO THE HONORABLE FIRST COURT OF APPEALS:


                              STATEMENT OF THE CASE

         On February 23, 2015, Appellant was charged by indictment with robbery in

trial court cause number 1459599. (CR 6). 1 A jury found Appellant guilty as

charged in the indictment on April 23, 2015, and sentenced him to 25 years

confinement in the Texas Department of Corrections—Institutional Division. (CR

59, 64; 4RR 20, 83). 2 On April 23, 2015, Appellant filed notice of appeal, and the

trial court certified his right to appeal. (CR 68, 71).

                            ♦


                                   ISSUES PRESENTED

First Issue:           Did the trial court abuse its discretion in denying
                       Appellant’s motion for a mistrial?

Second Issue:          Is the evidence sufficient to support Appellant’s
                       conviction for robbery?

                            ♦

                                 STATEMENT OF FACTS

          On June 19, 2014, around 10:00 p.m., Carlos Maldonado (“Maldonado”)

was driving home from work, when he stopped to make a turn at a dead-end street.

1
    The Clerk’s Record on appeal is designated by “CR” followed by page number.
2
 The Reporter’s Record on appeal is designated by volume number, followed by “RR,” followed
by page number.
(3RR 12-15, 27-28, 69). A male, later identified as Appellant, approached

Maldonado’s vehicle with what appeared to be a gun and Maldonado got out of the

vehicle.3 (3RR 15-16, 69, 120). The male took Maldonado’s vehicle, cell phone,

and “things” out of his wallet. (3RR 18, 70-71). As the male drove off in

Maldonado’s vehicle, another car that was parked nearby left at the same time at a

high rate of speed, and the other vehicle appeared to be associated with the male.

(3RR 18-19, 29).

       Arnold Pyle (“Pyle”), who lived nearby, lent Maldonado his cell phone to

call the police. (3RR 19, 30, 130, 143). Rafael Flores, a Houston Police Officer,

arrived soon after, and Maldonado provided them a description of the male who

robbed him and identifying information on his vehicle. (3RR 20-22, 31, 65-67, 93).

Later, the police called Maldonado, and Maldonado went to a location where he

observed his vehicle and cell phone. (3RR 23, 32-33, 82). A few days later

Maldonado was shown a photo array by Daniel Salinas, an Investigator with the

Houston Police Department, and he identified Appellant as the male who robbed

him. (3RR 24-25, 103, 114; State Exhibit 9).

       Jennifer Allen (“Allen”) and Rafael Flores, Houston Police Officers, were

called out the original scene. (3RR 48-49, 51, 63). Later, around 12:20 a.m., when

they were pulling into a gas station to get a snack, they observed Maldonado’s

3
 Maldonado only speaks Spanish, and he could not understand the English words the male was
saying. (3RR 16-17, 28).

                                             2
stolen vehicle. (3RR 53-54, 57). Appellant’s brother was driving the vehicle, and

Appellant was in the front passenger seat. (3RR 58; State exhibit 8 – photo of

Appellant’s brother; State exhibits 7, 11 – photos of Appellant). Allen observed

Appellant put a cell phone that was later identified as Maldonado’s on top of the

vehicle. (3RR 59). Eric Flores, a Houston Police Officer, was called out to the

“vehicle found” call. 4 (3RR 42-43). He searched the vehicle and found what

appeared to be a handgun underneath the front passenger seat.5 (3RR 45).

          Prior to Maldonado being robbed, a male approached Pyle, who was

working on his motorcycle in his driveway, around 10:00 p.m.. (3RR 130, 135).

The male asked Pyle if he wanted to purchase a gun, however, Pyle could see that

the gun did not really work. (3RR 136). The male told Pyle, “It works, I’ll show

you,” and then started walking to Maldonado’s car and robbed him. (3RR 138-39).

Pyle’s view of the robbery was obstructed, but he observed the male point the gun

at the car, open the door, and get Maldonado out. (3RR 139). He heard the male

say, “Get out or I’ll shoot you.” (3RR 141). Pyle then observed the male get into

Maldonado’s vehicle and drive away. (3RR 142). As Maldonado’s vehicle drove

away, Pyle observed a male jump out of a parked vehicle, cover the license plate of

that vehicle, and then that vehicle “took off” along with Maldonado’s vehicle.


4
    Eric and Rafael Flores are brothers. (3RR 66).
5
    The handgun was later determined to be a “firing gun,” that only fires blanks. (3RR 80).

                                                     3
(3RR 142, 145). The driver of that vehicle appeared to be a female. (3RR 142,

146). Pyle was also shown a photo array that included Appellant’s photograph, but

he was unable to identify anyone in the array. (3RR 120, 127).



                       ♦


                      SUMMARY OF THE ARGUMENTS

      First Point of Error:   The trial court abused its discretion in
      denying Appellant’s motion for a mistrial. Accordingly, Appellant’s
      conviction should be reversed and remanded to the trial court for a
      new trial.

      Second Point of Error: The evidence is insufficient to support the
      jury’s finding of guilty. Therefore, Appellant’s conviction should be
      reversed and an acquittal entered.



                       ♦



                  APPELLANT’S FIRST POINT OF ERROR


      The trial court erred in denying Appellant’s request for a mistrial when

Investigator Daniel Salinas informed the jury that Appellant was in custody for

being a felon in possession of a firearm. (3RR 107-109). 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. Ladd v. State, 3 S.W.3d 547, 567


                                         4
(Tex. Crim. App. 1999). Thus, 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. (citing Sewell v. State, 696 S.W.2d 559, 560 (Tex.

Crim. App. 1983)). A trial court’s ruling on a motion for mistrial is reviewed for an

abuse of discretion. Id. (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim.

App. 1993)).

      Here, there was testimony that Salinas obtained Appellant’s “booking

picture which was from that previous day.” (3RR 106). Then, on direct

examination, the prosecutor asked Salinas to describe what putting a “hold on

somebody” means. (3RR 107). In response to that question, Salinas explained:

“When they put a robbery hold on somebody they – either they’ve called a District

Attorney and they’ve had enough probable cause to place a charge on somebody at

that point or if they haven’t they have another type of charge. In this case I believe

it was felon in possession of a firearm.” (3RR 107). Obviously, this testimony

informed the jury that Appellant was arrested and accused of being a “felon in

possession of a firearm.”

      As a response to this testimony, the trial court stopped the testimony and

retired the jury to the jury room. (3RR 107). Outside of the jury’s presence the trial

court admonished Salinas that his testimony alluded to Appellant’s prior criminal



                                          5
history. (3RR 107). The trial court properly noted that the testimony was irrelevant

and was “highly prejudicial.” (3RR 107). Salinas was further admonished not to

refer to any prior criminal history again. (3RR 108).

      Appellant’s trial attorney requested that the jury being instructed to

disregard the testimony regarding Appellant’s prior criminal history, and the trial

court granted his request. (3RR 108). The trial court informed the jury, “Ladies and

Gentlemen if you heard any testimony that suggested that the Defendant might

have any prior criminal history the Court’s going to instruct you not to consider

that. Disregard it and not use it at all for your deliberations in this case in trial.”

(3RR 109). Appellant’s trial attorney also moved for a mistrial, which was denied

by the trial court. (3RR 108).

      As the trial court correctly noted, Salinas’ testimony regarding Appellant

being charged with a felon in possession of a weapon was not just prejudicial,

rather it was “highly prejudicial” and irrelevant. It introduced into evidence not

only Appellant’s prior felony criminal history, but also evidence of an extraneous

criminal offense alleged to have been committed by Appellant. Additionally, it was

unresponsive to the question asked by the prosecutor. Admission of irrelevant and

“highly prejudicial” evidence is error. See TEX. R. EVID. 401, 403, and 404(b).

      The trial court correctly granted Appellant’s request for an instruction to

disregard. However, an instruction to disregard was not sufficient to cure the error



                                          6
in this case. Appellant understands that “typically, any harm caused from an

improper question and answer is cured by an instruction to disregard.” Ovalle v.

State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). As is the case here, a mistrial

is required when the improper evidence is “clearly calculated to inflame the minds

of the jury and is of such a character as to suggest the impossibility of withdrawing

the impression produced on the minds of the jury.” See Hinojosa v. State, 4 S.W.3d

240, 253 (Tex. Crim. App. 1999).

      Here, the testimony was clearly presented by Salinas with the intent to

inflame the minds of the jury. His testimony regarding Appellant’s “hold” being

placed on him due to him being a “felon in possession of a firearm” was not

responsive to the general question asked by the prosecutor, neither was it necessary

to respond to her question. Further, Salinas testified that he has been a police

officer for more than six years, so it is not reasonable to believe that he was

unaware that the admission of a defendant’s criminal history and extraneous

offense are irrelevant and inadmissible during the guilt-innocence phase of trial.

(3RR 104). There is no other explanation for his unresponsive testimony other than

to inject this “highly prejudicial” evidence before the jury. Because the admission

of this evidence of Appellant’s prior felony criminal history and an alleged

extraneous offense was severe and calculated to inflame the minds of the jury, this

factor weighs in favor of a mistrial.



                                         7
      The trial court did, sua sponte, take measures to cure the error. It

admonished Salinas regarding further testimony of that nature, and it instructed the

jury to disregard the testimony. However, this testimony was of such a character to

suggest the impossibility of withdrawing the impression produced on the minds of

the jury. Specifically, the jurors were informed that not only did Appellant have a

criminal history, but that it was a prior felony conviction. Additionally, this

testimony is combined with the testimony that he was a “felon in possession of a

firearm,” to put evidence of an alleged extraneous offense in front of the jury,

which further suggests the impossibility of the instruction to disregard being able

to cure the improper testimony. Therefore, this factor also weighs in favor of a

mistrial.

      The testimony is of the nature to clearly inflame the minds of the jury and is

of such a character to suggest the impossibility of withdrawing the impression

produced on the minds of the jury. Accordingly, the trial court abused its discretion

in denying Appellant’s request for a mistrial regarding Salinas’ irrelevant and

“highly prejudicial” testimony as the instruction to disregard was insufficient to

cure the error. Appellant’s conviction should be reversed and the case remanded

back to the trial court for a new trial.




                                           8
                APPELLANT’S SECOND POINT OF ERROR

      A rational jury could not infer that Appellant was the male who committed

the robbery of Maldonado; therefore, the evidence presented at trial is insufficient

to sustain Appellant’s conviction for robbery. An appellate court reviews the

evidence in the light most favorable to the jury’s verdict and determines whether,

based on that evidence and reasonable inferences therefrom, a rational fact finder

could have found the accused guilty of all the elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)(plurality op.). Appellant was

charged with unlawfully, while in the course of committing theft of property

owned by Carlos Maldonado, and with intent to obtain and maintain control of the

property, intentionally and knowingly threaten and place Carlos Maldonado in fear

of imminent bodily injury and death, by pointing what appeared to be a firearm at

Carlos Maldonado. (CR 6); see TEX. PENAL CODE §29.02(a)(2).

      Here, the record is insufficient to support the jury’s finding that Appellant

was the male who committed the robbery of Maldonado. There is ample evidence

that another person, possibly Appellant’s brother, was the person who committed

the robbery. Specifically, Maldonado testified that the person he picked out of the

photo array was not Appellant; Appellant and his brother look similar; Pyle – who

spoke face-to-face with the male seconds before the robbery – was unable to


                                         9
identify Appellant; and, although, Appellant was found in Maldonado’s vehicle it

was hours after the robbery and his brother was the driver. (3RR 37, 120, 137, 144;

State’s exhibits 7 & 8). Further, there was no fingerprint testing of the firing gun to

see if Appellant ever held it, and Salinas never showed a photo array of

Appellant’s brother to either Maldonado or Pyle. (3RR 127).

      Because there is insufficient evidence Appellant was the male who

committed the robbery, the evidence presented at trial is insufficient to sustain

Appellant’s conviction for robbery; and, accordingly, Appellant’s conviction

should be reversed and an acquittal entered.




                                          10
                                   CONCLUSION

       It is respectfully submitted that the trial court erred in denying Appellant’s

motions for a mistrial, and the conviction should be reversed and remanded back to

the trial court for a new trial.

       It is further respectfully submitted that the evidence is insufficient to support

Appellant’s conviction for robbery; accordingly, Appellant’s conviction should be

reversed and an acquittal entered.




                                                 CELESTE BLACKBURN
                                                 Attorney at Law
                                                 333 N. Rivershire Dr.; Suite 285
                                                 Conroe, Texas 77304
                                                 Texas State Bar Number: 24038803
                                                 Telephone: 936.703.5000
                                                 celesteblackburn@gmail.com




                                          11
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to

Appellee’s attorney at the following address on August 26, 2015:

      Alan K. Curry
      Assistant District Attorney
      Harris County District Attorney’s Office
      1201 Franklin; Suite 300
      Houston, Texas 77002




                                                    CELESTE BLACKBURN




                      CERTIFICATE OF COMPLIANCE

      This is to certify that this brief contains a total of 2,642 words, according to

the word count on Microsoft Word.




                                                    CELESTE BLACKBURN




                                         12
