                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00051-CR

RUBEN MIGUEL ALANIZ,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-2237-C2


                           MEMORANDUM OPINION


       In two issues, appellant, Ruben Miguel Alaniz, challenges his conviction for

aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2011). Specifically, Alaniz

asserts that: (1) the jury charge erroneously defined the term “disabled person”; and (2)

the evidence is insufficient to show that the victim, Patrick Abel, qualified as a “disabled

person.” Because we conclude that Alaniz was not egregiously harmed by the charge,
and because the evidence is sufficient to show that Abel qualified as a “disabled person,”

we affirm.

                                    I.     BACKGROUND

        On October 10, 2012, Alaniz was at Brame Park in Bellmead, Texas, installing a

stereo in his Jeep when he was approached by Abel. Trial testimony revealed that Abel

frequently rode his bicycle to the park and walked around the park for exercise.

Additionally, Abel’s mother, Julie Story, testified that Abel has “Attention Deficit

Disorder with mild mental retardation” and that he was thirty-two at the time of trial.

Story also noted that Abel receives SSI benefits as a disabled person; that Abel spent his

school career in special-education classes; that Abel has no hope of ever living on his own;

and that Abel “is one of the kindest people you ever want to meet. He has a heart of gold,

and he’s never met a stranger.” Furthermore, for the past twelve years, Abel has worked

a two-hour Saturday shift at McDonald’s. In this job, Abel wipes down tables and cleans

the restaurant. After ten years of service, McDonald’s held a special ceremony and

awarded Abel with a gold ring. Witnesses testified that Abel was very proud of the ring.

        On the day in question, Abel saw Alaniz at the park and decided to approach.

Abel began talking with Alaniz and eventually showed Alaniz his McDonald’s ring. Abel

testified that he allowed Alaniz to hold the ring. When Abel asked Alaniz to give the ring

back, Alaniz used cuss words, allegedly pointed a gun at Abel, and “took off with Abel’s




Alaniz v. State                                                                       Page 2
ring.”1 Distraught, Abel rode his bicycle to the Bellmead Police Department to report the

incident.

        Officer Derek Baker of the Bellmead Police Department took Abel’s complaint.

Officer Baker testified that Abel “seemed very upset” at the time. Subsequently, Officer

Baker forwarded the complaint to Michael Miller, an investigator with the Bellmead

Police Department.          During the course of his investigation, Investigator Miller

determined that Alaniz was a possible suspect. Thereafter, Abel identified Alaniz from

a six-photo lineup as the perpetrator. Later, Investigator Miller interviewed Alaniz.

During the interview, Alaniz admitted to taking the ring from Abel. In addition, Alaniz

identified Abel as a “fucking retard” and asserted that “just because he robbed a retard,

it shouldn’t be an aggravated robbery.” Moreover, Alaniz initially denied trying to sell

the ring to his mother or anyone else; however, Investigator Miller later discovered that

Alaniz had tried to sell the ring to his mother.

        Alaniz also testified at trial. In his testimony, Alaniz admitted to taking Abel’s

ring and selling it to a gold buyer for about $450. Alaniz denied using a firearm in the

commission of the offense. Alaniz acknowledged that he took advantage of Abel and

that he had called Abel a “fucking retard.”




        1 With respect to the cuss words, Investigator Miller testified that Alaniz told Abel to “back the
fuck off” once Abel allowed Alaniz to hold the ring.

Alaniz v. State                                                                                    Page 3
        At the conclusion of the guilt-innocence phase of trial, the jury found Alaniz guilty

of aggravated robbery. During the punishment phase of trial, the State introduced

evidence of Alaniz’s other criminal actions, including prior convictions for driving while

intoxicated, unlawful possession of marihuana, assault family violence, and aggravated

assault. Thereafter, the jury assessed punishment at life imprisonment in the Institutional

Division of the Texas Department of Criminal Justice.2 This appeal followed.

                                       II.     THE JURY CHARGE

        In his first issue, Alaniz complains about the definition of “disabled person”

contained in the jury charge. More specifically, Alaniz contends that he was egregiously

harmed by language added to the charge definition of “disabled person” that is not

included in the statutory definition.

A.      Applicable Law

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly

preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved



        2 Pursuant to a motion filed by Alaniz, the trial court entered a judgment nunc pro tunc on March
13, 2014, thereby amending the judgment to reflect that no finding had been made with respect to the use
of a deadly weapon during the commission of this offense.

Alaniz v. State                                                                                   Page 4
at trial by a proper objection, a reversal will be granted only if the error presents egregious

harm, meaning appellant did not receive a fair and impartial trial. Id. To obtain a reversal

for jury-charge error, appellant must have suffered actual harm and not merely

theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v.

State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

        Alaniz admits that he did not object to the jury charge; thus, he must show

egregious harm. See Almanza, 686, S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments of

the parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B.      Discussion

        The definitions section of the charge provided the following definition for

“disabled person”: “[A] person older than 14 years of age who by reason of age or

physical or mental disease, defect, or injury is substantially unable to protect himself from

harm or to provide food, shelter, or medical care for himself.” The first portion of the

charge definition is substantially similar to the definition provided in section 29.03(c) of

the Texas Penal Code. See TEX. PENAL CODE ANN. § 29.03(c) (defining “disabled person”


Alaniz v. State                                                                          Page 5
as “an individual with a mental, physical, or developmental disability who is

substantially unable to protect himself from harm”). However, the second portion of the

charge definition (i.e., “to provide food, shelter, or medical care for himself”) does not

precisely follow section 29.03(c). See id.

        In any event, assuming without deciding that the second portion of the charge

definition is an incorrect statement of the law, we cannot say that Alaniz was egregiously

harmed. As stated earlier, when conducting an egregious-harm analysis, we consider the

entire jury charge, the state of the evidence, the final arguments of the parties, and any

other relevant information revealed by the record of the trial as a whole. See Olivas, 202

S.W.3d at 144.

        Here, if we were to assume that the second portion of the charge definition of

“disabled person” is a misstatement of the law, we note that the first portion of the charge

definition is substantially similar to the definition provided in section 29.03(c), thereby

allowing the jury to find that Abel is disabled because he is unable to protect himself from

harm.       See TEX. PENAL CODE ANN. § 29.03(c).                Furthermore, we believe that the

complained-of error was likely minimized by the arguments of counsel and correct

statements of law in the application paragraph of the charge.3 More specifically, neither



        3 We recognize that the State asked Story a few questions about Abel’s ability to purchase food, his
living arrangements, and his ability to secure medical care. However, the majority of the proffered
evidence centered on Abel’s inability to protect himself—a necessary requirement to prove the status of
“disabled person” under section 29.03(c) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 29.03(c)
(West 2011).

Alaniz v. State                                                                                      Page 6
party argued at trial about Abel’s status as a “disabled person.” Indeed, Alaniz focused

his opening and closing arguments on whether or not a gun was used in the commission

of the offense, not on Abel’s status as a “disabled person.”

        Additionally, the record contains ample evidence demonstrating that Abel is

“unable to protect himself from harm.” Story testified that Abel spent his school career

in special-education classes and that Abel has “Attention Deficit Disorder with mild

mental retardation.” Story also noted that Abel receives SSI benefits as a disabled person.

Moreover, Story stated that Abel is unable to protect himself from harm and that he will

never be able to live on his own or care for himself. The evidence also shows that Abel is

unable to drive a car and will never be able to do so and that Abel is very friendly to

strangers. In fact, Story recounted that Abel “is one of the kindest people you ever want

to meet. He has a heart of gold, and he’s never met a stranger. Ever. I could be talking

to somebody and he’ll walk up to them and shake their hand and want to know who they

are.”

        Other testimony, including that of Alaniz, also touches on Abel’s inability to

protect himself from harm.       During an interview with Investigator Miller, Alaniz

admitted to taking Abel’s ring and identifying Abel as a “fucking retard”—facts also

confirmed in Alaniz’s trial testimony. Alaniz also complained to Miller that “just because

he robbed a retard, it shouldn’t be an aggravated robbery.” Furthermore, Abel testified

about the incident, which gave the jury insight into the extent of his disability.


Alaniz v. State                                                                      Page 7
           And finally, on appeal, Alaniz contends that because the second portion of the

charge definition was purportedly a misstatement of the law, “there could have been

some sympathetic impact leading to a relaxing of the beyond a reasonable doubt standard

for threatening or placing in fear if the jury believed that Mr. Abel qualified as a ‘disabled

person’ when he did not under the law.” However, the Texas Court of Criminal Appeals

has stated that, to reverse a conviction due to jury-charge error, appellant must have

suffered actual harm and not merely theoretical harm. Sanchez, 376 S.W.3d at 775; Arline,

721 S.W.2d at 352. Besides speculating, Alaniz does not direct us to any portion of the

record indicating that he suffered actual harm due to the purportedly erroneous charge

definition of “disabled person.” See Sanchez, 376 S.W.3d at 775; Arline, 721 S.W.2d at 352.

         Therefore, based on the foregoing, we cannot say that the purported error in the

charge affected the very basis of the case, deprived Alaniz of a valuable right, or vitally

affected his defensive theory. See Almanza, 686 S.W.2d at 171; see also Stuhler, 218 S.W.3d

at 719; Sanchez, 209 S.W.3d at 121. In other words, we cannot conclude that Alaniz was

egregiously harmed by the complained-of error. See Almanza, 686 S.W.2d at 171; see also

Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. We overrule Alaniz’s first issue.




                               III.   EVIDENTIARY SUFFICIENCY

        In his second issue, Alaniz argues that the State failed to present sufficient

evidence for a rational factfinder to conclude beyond a reasonable doubt that Abel was


Alaniz v. State                                                                         Page 8
unable to protect himself from harm. As such, Alaniz asserts that the record evidence is

insufficient to establish that he is guilty of aggravated robbery.

A.      Applicable Law

        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.

        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
Alaniz v. State                                                                               Page 9
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.

B.      Discussion

        Section 29.03(a) of the Texas Penal Code provides that a person commits the

offense of aggravated robbery if he commits robbery and he: (1) causes serious bodily

injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to

another person or threatens or places another person in fear of imminent bodily injury or

death, if the other person is sixty-five years of age or older or is a disabled person. TEX.

PENAL CODE ANN. § 29.03(a). On appeal, Alaniz focuses on Abel’s purported status as a

“disabled person.” In particular, Alaniz asserts that the State did not proffer sufficient

evidence to demonstrate that Abel is unable to protect himself from harm. We disagree.


Alaniz v. State                                                                         Page 10
        As stated earlier, Story testified that Abel spent his school career in special-

education classes and that Abel has “Attention Deficit Disorder with mild mental

retardation.” Story also noted that Abel receives SSI benefits as a disabled person.

Moreover, Story stated that Abel is unable to protect himself from harm and that he will

never be able to live on his own or care for himself. The evidence also shows that Abel is

unable to drive a car and will never be able to do so and that Abel is very friendly to

strangers. Story recounted that Abel “is one of the kindest people you ever want to meet.

He has a heart of gold, and he’s never met a stranger. Ever. I could be talking to

somebody and he’ll walk up to them and shake their hand and want to know who they

are.”

        Other testimony, including that of Alaniz, also touches on Abel’s inability to

protect himself from harm.       During an interview with Investigator Miller, Alaniz

admitted to taking Abel’s ring and identifying Abel as a “fucking retard”—facts also

confirmed in Alaniz’s trial testimony. Alaniz also complained to Miller that “just because

he robbed a retard, it shouldn’t be an aggravated robbery.” Furthermore, Abel testified

about the incident, which gave the jury insight into the extent of his disability.

        Despite the foregoing evidence, Alaniz complains that the State did not proffer

medical evidence to prove that Abel is indeed disabled. Alaniz does not cite, nor are we

aware of, authority requiring the State to proffer medical testimony to prove that the

victim of a robbery is disabled. In fact, a couple of Texas courts have affirmed aggravated


Alaniz v. State                                                                      Page 11
robbery convictions based on disability findings without medical testimony. See, e.g.,

Waller v. State, No. 06-03-00039-CR, 2004 Tex. App. LEXIS 330, at *1, *13 (Tex. App.—

Texarkana Jan. 14, 2004, no pet.) (mem. op., not designated for publication) (“Bruce E.

Williams testified McPherson is mentally challenged. . . . Last, evidence was introduced

that McPherson is disabled. . . . Therefore, there is legally sufficient evidence to support

the jury’s verdict.”); Carr v. State, No. 07-99-0213-CR, 1999 Tex. App. LEXIS 7948, at **3-

4, *12 (Tex. App.—Amarillo Oct. 25, 1999, pet. ref’d) (mem. op., not designated for

publication) (affirming a conviction for aggravated robbery based, in part, on the victim’s

testimony about his own physical disabilities).

        Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational factfinder could conclude that Abel was unable to protect himself and,

thus, is disabled and that Alaniz committed aggravated robbery. See TEX. PENAL CODE

ANN. § 29.03; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894;

Hooper, 214 S.W.3d at 13. As such, we hold that the evidence is sufficient to support

Alaniz’s conviction for aggravated robbery. See TEX. PENAL CODE ANN. § 29.03; see also

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at

13. We overrule Alaniz’s second issue.

                                     IV.    CONCLUSION

        Having overruled both of Alaniz’s issues on appeal, we affirm the judgment of the

trial court.


Alaniz v. State                                                                       Page 12
                                                 AL SCOGGINS
                                                 Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
(Chief Justice Gray concurring with a note)*
Opinion delivered and filed August 6, 2015
Do not publish
[CRPM]

*(Chief Justice Gray concurs in the judgment. A separate opinion will not issue but he
provides the following note: In this case the trial court expanded the definition in the
charge of what it means to be a disabled person by adding “or to provide food, shelter,
or medical care for himself” to the statutory definition that it means a person that is
“…substantially unable to protect himself from harm.” Alaniz argues that this allowed
the jury to convict him upon a determination of the status of the victim as being disabled
when the victim was actually not disabled within the statutory definition. I disagree. The
added disjunctive clause, “or to provide food, shelter, or medical care for himself” is
nothing more than a reference to a specific way that a person is unable to protect
themselves from harm. As such it may have been an improper comment on the weight
of the evidence, but it certainly did not authorize a conviction on a theory that was not
otherwise within the statutory definition of a disabled person. I find that all the evidence
that shows that the victim was unable to provide food, shelter, or medical care for himself
was simply evidence of a specific way that showed the victim was disabled by being
unable to protect himself from harm. It may have been erroneous to include the phrase
in the definition but it is was not error for the reasons argued by Alaniz. Accordingly I
would overrule the first issue on the merits. With these additional comments I concur in
the judgment of the trial court convicting Alaniz.)




Alaniz v. State                                                                      Page 13
