Opinion issued November 17, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00957-CR
                            ———————————
                    RICHARD RENE RIVERA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Case No. 1404642



                                  OPINION

      A jury convicted appellant, Richard Rene Rivera, of the third-degree felony

offense of racing without a license.1 The trial court assessed his punishment at two



1
      See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (West Supp. 2016).
years’ confinement, suspended for two years, and a $2,000 fine. In eleven issues on

appeal, appellant contends: (1) the State failed to present sufficient evidence that he

conducted a horse race without a license as alleged in the indictment; (2)–(3) the

trial court erroneously allowed two police officers to testify that, in their opinion,

appellant was guilty of helping to conduct a horse race; (4)–(6) the trial court

erroneously allowed the State to introduce evidence that appellant’s wife committed

the extraneous offense of impersonating a police officer because the evidence was

irrelevant, unduly prejudicial, and constituted improper character evidence; (7)–

(9) the trial court erroneously allowed the State to introduce evidence that

appellant’s wife committed the extraneous offense of being a party to an illegal bet

because the evidence was irrelevant, unduly prejudicial, and constituted improper

character evidence; (10) the trial court erroneously admitted testimony of statements

made to another security officer because the statements were irrelevant and made

outside of appellant’s presence; and (11) the trial court erroneously included an

instruction on law of parties in the jury charge.

      We reverse and render a judgment of acquittal.

                                     Background

      This case grew out of an investigation of a racetrack in Crosby, Texas, for a

violation of the Texas Racing Act.




                                           2
      Appellant was a Department of Public Safety (“DPS”) trooper and the

coordinator of outside jobs for the DPS. In 2008, he began working an extra job

providing security at the El Herradero Ranch in Crosby. In 2013, the owners of the

ranch added a racetrack to the property. In early 2013, Agent J. Duck, with the

Criminal Investigation Division of DPS, began investigating the racetrack to

determine whether illegal betting on horse races was occurring at this property. In

2014, appellant was indicted, tried, convicted, and sentenced under the Texas Racing

Act for conducting a horse race without a racetrack license when he knew or should

have known that another person was betting on the final outcome of the race.

      Agent Duck testified that, in early 2013, he and the Criminal Investigation

Division of DPS began investigating the racetrack that had been added at the El

Herradero Ranch to determine whether illegal betting on horse races was occurring

at this property. He testified that, under the Texas Racing Act, betting on the

outcome of horse races may only occur at racetracks that are licensed by the Texas

Racing Commission and may only occur between the patron and the racetrack itself,

but may not occur between patrons. The racetrack at the El Herradero Ranch was

not licensed by the Texas Racing Commission.

      Agent Duck sent Investigator Garcia and Agent J. Aguillera to El Herradero

Ranch undercover as patrons on approximately eight different dates throughout

2013, beginning on February 23, 2013, to record what they witnessed using both



                                         3
audio and video equipment. Agent Duck instructed the agents to discover “who was

running things inside the racetrack,” to determine if betting was occurring, and to

determine if the individuals in charge of the racetrack knew that betting was

occurring. The property had a parking area, an area for concession stands, a DJ, an

elevated area for photo-finish cameras, starting gates, a straight-line dirt track, and

fences, along which the patrons would stand to watch the races.

         El Herradero Ranch personnel handed out schedules of the races that occurred

each day and that said, in both English and Spanish, “gambling prohibited.” Signs

located throughout the property also said “gambling prohibited.” Agent Duck

testified that, despite these signs, “it was blatantly obvious once we got in there that

gambling was going on.” Agent Duck testified that the El Herradero Ranch made

money by charging a $20 entrance fee, by selling alcohol and food at a concession

stand, and by selling “photo finishes and winner circle photographs [and] DVD’s as

well.”

         Agent Duck agreed with the State that his investigation uncovered no

evidence that the racetrack or the owners of the track were taking bets from patrons.

If that was occurring, Agent Duck agreed that it was not happening “out in the open.”

Agent Duck testified that betting among patrons, however, did occur “out in the

open.” He stated:

         The way that the bets would take place was everyone would line up
         along the rail of [the] racetrack before the race. The horses would walk

                                            4
      by with other horses and riders. As the horses are walking by and
      everyone is getting a look at them, it would just be people betting back
      and forth to one another. They would be asking, [‘]I like the one on
      this side or the one [on] that side[,’] determining a particular horse.
      They would also state which amount they would like to bet.

When he viewed the videos from the undercover agents, Agent Duck was able to

witness betting occurring between patrons.

      Agent Duck testified that on the first day he sent officers undercover to the El

Herradero Ranch, February 23, 2013, the officers witnessed appellant, a DPS

Trooper, working an extra job as the head of security at the property. Appellant was

present at the track on six of the eight days that the agents conducted undercover

surveillance. Appellant wore his DPS uniform while he was at the property, and it

was “obvious” that he was not there as a patron. Agent Duck testified that appellant

“was working at the racetrack, showing a command presence. He would pull a rope

across the racetrack and allow patrons to pass. He would check people and make

sure they weren’t bringing in beer from outside since they sold beer there.” Agent

Duck stated that other police officers were at the property working security, as well

as “an individual there who was dressed as a police officer and impersonating [but

who] was not a police officer.” Agent Duck identified this individual as Consuela

Rivera, appellant’s wife.2    Appellant objected to this testimony on relevance



2
      The undercover officers testified that, on various occasions, Consuela Rivera wore
      either a peace officer’s uniform with a state seal or a shirt that had her name and

                                           5
grounds, Rule 403 grounds, and Rule 404(b) grounds. The trial court overruled these

objections and allowed Agent Duck to testify that Consuela Rivera, who was not a

police officer, wore an officer’s uniform while working security at the property.

      Agent Duck testified that “[i]t was apparent that Mr. Rivera was in charge” of

the other officers at the property and that appellant would coordinate the officers’

schedules. He also stated that police officers working extra jobs “still enforce the

laws” and “still provide a command presence.” If an officer sees a crime occur while

he is working an extra job, he is “bound to act on that appropriately and make the

arrest or whatever action needs to be taken.”

      On re-direct examination, the State asked Agent Duck about the types of

actions appellant performed in providing security at the El Herradero Ranch. Agent

Duck testified that officers observed appellant “pulling [a] rope across the track,”

and he clarified that, in between the races, patrons were allowed to walk around the

property and appellant “would pull the rope across the track to allow patrons to get

across safely without having a run in with one of the horses.”

      Agent Duck and the State had the following exchange:

      [The State]:                So were there times when [appellant] allowed
                                  people to walk and times when he stopped
                                  people from walking on the track?
      [Agent Duck]:               Yes, ma’am.


      patches and that identified her as a police officer. Appellant testified that Consuela
      “wore a generic uniform” and carried a firearm.

                                            6
      [The State]:                Did that aid in the racing?
      [Agent Duck]:               Yes, ma’am.
      [Defense counsel]:          Your Honor, that’s a legal determination by
                                  the jury, invading the province of the jury.
      The Court:                  Overruled, Counsel.

Agent Duck also testified that appellant wore either his full DPS uniform or a safety

vest that stated “Police,” and he would ride around the property on a four-wheeled

ATV to “check out different locations of the track.”

      Agent Aguillera testified that he went undercover as a patron at El Herradero

Ranch on approximately five occasions, equipped with an audio and video recorder.

He agreed with the State that gambling was occurring at the races. He testified that

“[p]rior to the races, we would have people come up and ask us [‘W]hich horse do

you want? Which side do you want?[’]” and that the patrons were not whispering

or trying to hide what they were doing. After the races, Agent Aguillera witnessed

the open exchange of money between patrons depending on the outcome of the race.

Agent Aguillera was repeatedly approached by patrons asking him if he wanted to

place a bet. Agent Aguillera witnessed patrons betting on the races each time he

visited the El Herradero Ranch.

      Agent Aguillera testified that appellant would spend some time on a four-

wheeler driving around the property and that at other times he would be walking

through the crowd or on the track. Agent Aguillera agreed with the State that there



                                           7
were times when appellant “was present in a crowd of people and betting would be

taking place” and that appellant was occasionally “nearby when the gambling was

going on.” At one point, appellant was standing approximately thirty yards away

from two patrons exchanging money after a race. Agent Aguillera testified that it

was possible that that transaction could have been visible to appellant. On other

occasions, patrons engaged in gambling and discussing gambling were ten or fifteen

feet away from appellant.

      On October 5, 2013, Agent Aguillera again visited the racetrack. On this

occasion, he had a conversation with appellant that was recorded. Appellant had left

the parking area and was walking toward the concession stand, and Agent Aguillara

asked him a couple of questions, including whether it was okay for him as patron to

make a bet on a race. Appellant replied “yes as long as he didn’t see it” because he

“couldn’t take enforcement action upon” bets that he did not witness. Agent

Aguillera witnessed gambling every time he visited the racetrack and it always

occurred in the open.

      The trial court admitted video recordings that Agent Aguillera made while

undercover at the property. One clip depicted the conversation Agent Aguillera had

with appellant on October 5, 2013, regarding whether betting was allowed. Other

clips showed appellant and other security officers, in uniform, walking on the track,

around the property, and through the crowd. In one video, taken on March 30, 2013,



                                         8
appellant can be seen sitting on an ATV near the track after a race had occurred.

Within the next two minutes, three different payouts for bets occurred while

appellant sat on the ATV approximately thirty to fifty feet away. It’s unclear from

the video whether those payouts occurred within appellant’s line of sight. On cross-

examination, Agent Aguillera acknowledged that he could not see any patrons

gambling right in front of appellant and that appellant was not “in the middle” of

betting as it was occurring.

       Investigator Garcia, a lieutenant with the Brookshire Police Department

assigned to work with DPS, first went to El Herradero Ranch on February 23, 2013.

He immediately witnessed patrons betting, and he testified that some individuals

“were actually walking around asking if somebody wanted to take a bet.” He

testified:

       It was open. It was out in the open. You just go up there and people
       start asking which horse you want. They start asking you want this
       horse or that horse type deal. Trying to engage in betting as soon as
       you walk up. It’s just open betting.

       The State and Investigator Garcia had the following exchange:

       [The State]:             As part of your undercover role, was it to
                                determine who was helping conduct this
                                racetrack?
       [Investigator Garcia]:   Our deal is trying to find who was conducting
                                it and to document that in fact it was going
                                on.




                                         9
      [The State]:               Were there other people that, you, throughout
                                 the investigation were able to identify as
                                 helping run the track?
      [Investigator Garcia]:     Yes, ma’am. There were property owners
                                 and probably about six other officers.
      [Defense counsel]:         Your Honor, we object to helping run the
                                 track as being a legal conclusion and
                                 invading [the] province of the jury.
      The Court:                 Overruled.

      The trial court also admitted video recordings made by Investigator Garcia

while undercover. In one clip, taken on an unknown date, three different payouts

occurred among patrons standing near the fence running along the racetrack. While

this occurred, appellant stood on the track, approximately twenty to thirty feet away,

with his back to the patrons. He later turned towards the patrons, but the video did

not show any further betting among patrons occurring at this time. The trial court

admitted another video in which patrons were “celebrating” over a race that had just

occurred while appellant was standing nearby. Investigator Garcia agreed that “at

this time, at this location,” he saw betting occurring.

      Investigator Garcia also testified that, on one occasion, he approached

Consuela Rivera, who was wearing a shirt that identified her as a police officer, and

spoke with her. Investigator Garcia “asked her about the horses, which one would

be a good one to bet on.” Defense counsel objected on relevancy, Rule 403, and

Rule 404(b) grounds. The trial court overruled the objections. Investigator Garcia



                                          10
testified that his conversation with Consuela Rivera was amicable and that, after

their conversation, he made a bet on the next race with a patron. The trial court

admitted an audio recording of this conversation. Investigator Garcia won $100, and

he “paid Ms. Rivera for information” and “told her it was payoff for the tip she had

given [him].” Consuela Rivera took the money from Investigator Garcia and “was

happy about it.”

      Investigator Garcia also testified concerning a conversation that he had with

another person working security, Officer G. Hurd. Defense counsel objected to the

State’s line of questioning on relevancy grounds, and the trial court overruled the

objection. Investigator Garcia testified that he told Officer Hurd, “[I]f I won, based

on the information he gave me, I would give him some money. Or if he ever wanted

to make a bet to let me know, and I would bet for him.” Officer Hurd did not escort

Investigator Garcia off the property or write him a ticket, and Garcia was able to

continue betting on that occasion.      On cross-examination, Investigator Garcia

testified that appellant was not present at the time Garcia had this conversation with

Officer Hurd.

      Investigator Garcia testified that he never spoke with appellant, but, on one

occasion while appellant was standing nearby, he got into an argument with another

patron concerning whether a race had actually occurred and whether the other person

was going to pay Garcia. One of the property owners, Reginald Mandujano, was



                                         11
called over to mediate the dispute, and the owner “agreed that it was a race, and the

[other patron] paid [Garcia].” Investigator Garcia was not being “covert or quiet,”

but was instead “being loud and kind of arguing about getting paid.” The other

patron did not appear worried that appellant was standing nearby. There is no

indication from Investigator Garcia’s testimony that Mandujano was still standing

nearby when this payout occurred or that Mandujano saw the payout. Investigator

Garcia testified that he never had a direct conversation with either appellant or

Mandujano.

      Harris County Constable’s Officer Sergeant A. Rubio testified that he had

known appellant for many years and that appellant had been a coordinator for

officers who wanted to work extra jobs. Sergeant Rubio obtained an extra job

through appellant on a few occasions, including one day working security at El

Herradero Ranch in 2013. Sergeant Rubio saw patrons openly holding cash and

recording the races, and he believed that gambling was occurring at the property.

Later that day, Sergeant Rubio informed appellant of what he observed and his

concerns, and he told appellant that he would not work security at the property

again.3 Sergeant Rubio informed the Office of the Inspector General of what he had




3
      Appellant testified that Sergeant Rubio told him of his concerns about gambling at
      the property. He stated that, despite these concerns, Rubio did not arrest anyone on
      the day he worked at the property.

                                           12
witnessed, and he called Noe Diaz, with the Texas Rangers, to report his

observations.

      Ranger Diaz testified concerning the types of extra jobs that DPS troopers are

allowed to work. He stated that jobs where gambling occurs are strictly prohibited.

When appellant applied to work an extra job at the El Herradero Ranch, he listed the

nature of the business as “a Mexican rodeo,” but Ranger Diaz testified that he would

characterize the property as a “straight track,” not as a rodeo. If appellant had listed

“racetrack” on his application to work security, that would have “immediately”

triggered concern among the officers who approve extra jobs. After receiving

information from Sergeant Rubio concerning the activities at the El Herradero

Ranch, Ranger Diaz began an investigation and eventually coordinated with Agent

Duck’s investigation and provided training assistance for the undercover agents.

      Appellant testified on his own behalf. He testified that he has been a DPS

Trooper since 1981. He started working security at El Herradero Ranch in 2008. It

did not have a horse track at that time. From 2008 to 2013, a Mexican rodeo occurred

at the property, and, in 2013, the owners added a horse track. He testified that his

duty at El Herradero Ranch was to “provide security” and “enforce the law of the

State of Texas.” He stated that his job was not to conduct horse races but to conduct

security and make the premises safe for patrons. Appellant characterized his

conversation with Agent Aguillera as Aguillera’s asking if gambling was occurring



                                          13
at the property and appellant responding that “if it’s in my view, I will take some

action. But if it’s not in my view, I cannot take some action.” He stated that this

was his way of giving a warning that gambling was prohibited, and if he saw

gambling occurring, he “would do something about it.” Appellant testified, “I was

there to enforce all the laws. They never gambled in front of me. They never bet in

front of me. I was never able to take any action on that.”

      On cross-examination, appellant had the following exchange with the State:

      [The State]:        We’re having horses racing, certainly the idea must
                          come to you that some people may want to bet on
                          that?
      ....
      [Appellant]:        They bet everywhere. Everywhere betting is done.
      [The State]:        Everywhere racing is, betting is done?
      [Appellant]:        In everything. You go to Reliant Park, you go to
                          [Minute Maid] Park, you go to boxing, you go to
                          anywhere, betting is done.
      [The State]:        So certainly based on your training and experience,
                          you can expect betting to be going on at that facility;
                          is that correct?
      [Appellant]:        It’s a possibility. If they do it in front of me, I’m
                          going to take action.

Appellant testified that none of the security officers working with him approached

him to inform him that betting was occurring. He stated that the officers are

“supposed to take action” if they see betting occurring, and that they know they are

supposed to take action because they are police officers.


                                         14
      Appellant objected at trial to the admission into evidence of the testimony of

Agent Duck and Investigator Garcia that, in their opinion, appellant was conducting

the race and aiding the racing as improper testimony on legal issues. He also

objected to the trial court’s admission of evidence of the extraneous offense of a

third party at the guilt/innocence stage of trial as improperly prejudicial and

irrelevant. He further objected to the trial court’s admission of statements made to

a third party outside of appellant’s presence as evidence of his guilt. The trial court

overruled all of appellant’s objections.

      The jury charge included a law of parties instruction and thus authorized the

jury to find appellant guilty of the offense of racing without a license either as the

primary actor or as a party to the offense. No one other than appellant was identified

as a primary actor in the charge. The law of parties portion of the application

paragraph stated:

      [I]f you find from the evidence beyond a reasonable doubt that on or
      about the 5th day of October, 2013, in Harris County, Texas, an
      unknown person or persons, did then and there unlawfully,
      intentionally or knowingly conduct a horse race without having a
      racetrack license from the Texas Racing Commission, and the unknown
      person or persons knew or reasonably should have known that another
      person was betting on the final outcome of said race, and that the
      defendant, Richard Rene Rivera, with the intent to promote or assist the
      commission of the offense, if any, solicited, encouraged, directed, aided
      or attempted to aid the unknown person or persons to commit the
      offense, if he did, then you will find the defendant guilty of a violation
      of the Texas Racing Act, as charged in the indictment.




                                           15
      The jury found appellant guilty of the offense of racing without a license. The

trial court assessed appellant’s punishment at two years’ confinement, suspended for

two years, and a $2,000 fine. This appeal followed.

                             Racing Without a License

      In his first issue, appellant contends that the State presented insufficient

evidence that he conducted a horse race without a racetrack license as a primary

actor, as alleged in the indictment. In his eleventh issue, appellant contends that the

trial court erred in including an instruction on the law of parties in the charge because

the State presented no evidence that someone else was the primary actor for the

offense of conducting an illegal race and no evidence that appellant intentionally

aided in committing this offense, as required by the statute. We consider these issues

together.

      A. Standard of Review of Sufficiency of the Evidence

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard

is only standard to use when determining sufficiency of evidence). The jurors are

the exclusive judges of the facts and the weight to be given to the testimony. Bartlett



                                           16
v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge

of credibility, may accept one version of the facts and reject another, and it may

reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve

witness even when witness’s testimony is uncontradicted).

      We may not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).      We afford almost complete deference to the jury’s

credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.

App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in favor

of the prosecution and therefore defer to that determination.”). Circumstantial

evidence is as probative as direct evidence in establishing guilt, and circumstantial

evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152,

155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “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



                                          17
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “[A]ll the

evidence the jury was permitted, properly or improperly, to consider must be taken

into account in determining the . . . sufficiency of the evidence.” Barnes v. State, 62

S.W.3d 288, 297–98 (Tex. App.—Austin 2001, pet. ref’d).

      B. Conducting a Horse Race Without a Racetrack License as a Primary
         Actor

      The Texas Racing Act, under which appellant was convicted, provides:

      (a) A person commits an offense if the person:

                (1) Conducts a greyhound or horse race without
                    a racetrack license; and

                (2) Knows or reasonably should know that
                    another person is betting on the final or
                    partial outcome of the race.

      (b) An offense under this section is a felony of the third degree.

TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (West Supp. 2016). Thus, to establish

that appellant committed the offense of conducting a horse race without a racetrack

license as a primary actor, the State had to prove that appellant “conduct[ed]

a . . . horse race without a racetrack license” and that appellant “kn[ew] or

reasonably should [have] know[n] that another person was betting on the final

outcome of the race.” See id.




                                          18
      The Texas Racing Act does not define the term “conducts.”4 The Court of

Criminal Appeals has held that, when interpreting a statute, “an undefined word or

phrase should be construed and understood according to its common, every day

usage.” Hanna v. State, 426 S.W.3d 87, 92 (Tex. Crim. App. 2014); see also TEX.

GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read in

context and construed according to the rules of grammar and common usage.”).

“Jurors may ‘freely read [undefined] statutory language to have any meaning which

is acceptable in common parlance.’” Kirsch v. State, 357 S.W.3d 645, 650 (Tex.

Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.

1995)).

      Appellant and the State have offered various definitions of “conduct” when

used as a verb in order to aid our interpretation of Texas Racing Act section 14.16.5


4
      One other Texas criminal statute uses “conducts” as a verb: Penal Code section
      34.02, which concerns money laundering. See TEX. PENAL CODE ANN.
      § 34.02(a)(2) (West Supp. 2016) (“A person commits an offense if the person
      knowingly . . . conducts, supervises, or facilitates a transaction involving the
      proceeds of criminal activity.”). As with the Texas Racing Act, the Penal Code does
      not define “conducts” when used as a verb. But see id. § 1.07(a)(10) (Vernon Supp.
      2015) (defining “conduct,” when used as a noun, as “an act or omission and its
      accompanying mental state”). And, as with the Texas Racing Act, no Texas court
      has interpreted the meaning of “conducts” in the context of section 34.02.
5
      The Fourteenth Court of Appeals recently decided a case arising out of this same
      incident involving another off-duty police officer working an extra job as security
      at El Herradero Ranch. See Hurd v. State, 495 S.W.3d 592 (Tex. App.—Houston
      [14th Dist.] 2016, no pet.). Although the appellant in that case challenged the
      applicability of article 14.16 to him as well as the sufficiency of the evidence to
      convict him as a primary actor or as a party, our sister court did not analyze the

                                          19
The State cites the Merriam-Webster Dictionary, which defines “conduct” as “to

direct or take part in the operation or management of” and “to direct the performance

of.”          Conduct,    MERRIAM-WEBSTER.COM,             www.merriam-webster.com/

dictionary/conduct (last visited Nov. 14, 2016). The American Heritage Dictionary

defines “conduct” as “to direct the course of; manage or control.” Conduct, THE

AMERICAN        HERITAGE       DICTIONARY        OF    THE     ENGLISH       LANGUAGE,

https://ahdictionary.com/word/search.html?q=conduct (last visited Nov. 14, 2016);

see    also    Conduct,    WEBSTER’S       NEW     WORLD      COLLEGE      DICTIONARY,

www.yourdictionary.com/conduct#websters (last visited Nov. 14, 2016) (defining

“conduct” as “to manage, control, or direct”).

       Each of these definitions of “conduct” implies a degree of management,

control, and authority over what is being conducted. Thus, in the context of section

14.16, a person “conducts a horse race” if he directs or takes part in the operation or

management of a horse race, or directs the performance of the race, or controls the

race. And he violates section 14.16 if he performs such functions without a racetrack

license and he knows or reasonably should know that another person is betting on

the outcome of the race. There is no evidence in the record that appellant was a

person required to have a racetrack license. There is no evidence in the record to



       language of article 14.16 or specifically define what it means to “conduct” a horse
       race.

                                           20
show that appellant directed the operation or management of the racetrack, the racing

operation, or the performance of the races.

      Instead, the evidence reflects that, in addition to generally ensuring the

security of the property and the safety of the patrons, appellant’s only action in

connection with the actual races themselves was to ensure that patrons stayed off the

track during races by pulling a rope back and forth across the track. These actions

do not require a racetrack license and do not constitute management, control, or

direction of the operation, the course, or the performance of a horse race without a

license. We therefore conclude that the State presented insufficient evidence that

appellant was guilty as the primary actor of conducting a horse race at which betting

was occurring without a racetrack license.

      C. Conducting a Horse Race Without a Racetrack License as a Party

      The State points out, however, that the jury charge authorized the jury to

convict appellant as a party to the offense under the law of parties. On appeal,

appellant argues that the instruction was improperly given and that the evidence is

insufficient to support his conviction under the law of parties. We therefore must

consider whether the State presented sufficient evidence that appellant was guilty as

a party of the criminal offense of conducting a horse race without a license.

      “An instruction on the law of parties should be submitted to the jury when the

evidence adduced at trial shows the active participation in the offense by two or more



                                         21
persons.” Gilmore v. State, 397 S.W.3d 226, 243 n.24 (Tex. App.—Fort Worth

2012, pet. ref’d). If the State is to prove a defendant’s guilt as a party beyond a

reasonable doubt, the State must first prove the guilt of another party as the primary

actor. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993); Barnes,

62 S.W.3d at 296. To support an instruction on the law of parties, the State need not

establish the identity of the primary actor in the commission of the offense; rather,

it is sufficient that the State prove conduct by a third party constituting the offense

and an act by the accused committed with the specific intent to promote or assist the

conduct. See Nelson v. State, 405 S.W.3d 113, 126 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d); Mullins v. State, 173 S.W.3d 167, 174 (Tex. App.—Fort Worth

2005, no pet.); Barnes, 62 S.W.3d at 296. “To establish guilt under the law of

parties, the evidence must show that, at the time of the offense, the parties were

acting together, each contributing some part towards the execution of their common

purpose.” Nelson, 405 S.W.3d at 123.

      “In general, an instruction on the law of parties may be given to the jury

whenever there is sufficient evidence to support a jury verdict that the defendant is

criminally responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564

(Tex. Crim. App. 1999); Ryser v. State, 453 S.W.3d 17, 28 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d). The trial court may include this instruction in the charge

if evidence supporting the theory has been introduced at trial, even if the indictment



                                           22
alleges only that the defendant acted as a principal actor. Ryser, 453 S.W.3d at 28.

Under the law of parties, a person is criminally responsible as a party to an offense

if the offense is “committed by his own conduct, by the conduct of another for which

he is criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a) (West

2011); Nelson, 405 S.W.3d at 123. A person is criminally responsible for an offense

committed by the conduct of another if “acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West

2011).

      Further, “it must be shown that, in addition to the illegal conduct by the

primary actor, the accused harbored the specific intent to promote or assist the

commission of the offense.” Barnes, 62 S.W.3d at 296; see Richardson, 879 S.W.2d

at 882. The accused must know that he was assisting in commission of the offense.

Barnes, 62 S.W.3d at 296; see Amaya v. State, 733 S.W.2d 168, 174–75 (Tex. Crim.

App. 1986). This “agreement, if any, must be before or contemporaneous with the

criminal event.” Barnes, 62 S.W.3d at 296 (emphasis in original); see Beier v. State,

687 S.W.2d 2, 3–4 (Tex. Crim. App. 1985). “The evidence must show that at the

time of the commission of the offense, the parties were acting together, each doing

some part of the execution of the common design.” See Barnes, 62 S.W.3d at 297

(emphasis in original).



                                         23
      “The State must show more than mere presence to establish participation in a

criminal offense.” Id. (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App.

1981)). The accused’s “[m]ere presence or even knowledge of an offense does not

make [him] a party to the offense.” Barnes, 62 S.W.3d at 297; see Oaks v. State,

642 S.W.2d 174, 177 (Tex. Crim. App. 1982). In determining whether a defendant

participated in the commission of an offense as a party, the fact finder may examine

the events occurring before, during, and after the commission of the offense and may

rely on actions of the defendant that show an understanding and common design to

commit the offense. Barnes, 62 S.W.3d at 297.

      Here, the jury charge instructed the jury that it could find appellant guilty

under the law of parties

      if you find from the evidence beyond a reasonable doubt that on or
      about the 5th day of October, 2013, in Harris County, Texas, an
      unknown person or persons, did then and there unlawfully,
      intentionally or knowingly conduct a horse race without having a
      racetrack license from the Texas Racing Commission, and the unknown
      person or persons knew or reasonably should have known that another
      person was betting on the final outcome of said race, and that the
      defendant, Richard Rene Rivera, with the intent to promote or assist the
      commission of the offense, if any, solicited, encouraged, directed, aided
      or attempted to aid the unknown person or persons to commit the
      offense.

      Appellant argues that the “unknown person or persons” mentioned in the jury

charge presumably refers to the owners of the El Herradero Ranch. But the State

presented no evidence beyond mere speculation that any person who owned or



                                         24
operated the racetrack committed the offense of conducting a horse race without a

racetrack license and “knew or reasonably should have known that another person

[was] betting on the final or partial outcome of the race.” See TEX. REV. CIV. STAT.

ANN. Art. 179e, art. 1, sec. 14.16(a). There was simply nothing in the record to

convict any person as a primary actor of the offense of conducting a horse race

without a racetrack license.

      The only person fitting the description of an owner or manager of the racetrack

at El Herradero Ranch was Reginald Mandujano. Investigator Garcia identified

Mandujano as one of the owners of the property and presented evidence that he was

present at the racetrack on at least one occasion. Garcia also testified that betting

occurred among patrons on horse races at El Herradero Ranch, was “open” and

“obvious” when he was walking through the crowds, and occurred each time

undercover agents visited the property. On the occasion when Mandujano was

present, he was asked to decide a dispute between Garcia and another patron with

whom Garcia had made a bet as to whether a race had occurred. Mandujano

reviewed a tape of the race and determined that a race had occurred. That was all he

was asked to do. The patron then paid Garcia. But there is no indication in the

record that Mandujano was still nearby when this payout occurred or that he saw the

payout. Garcia testified that he never had a direct conversation with Mandujano.




                                         25
There was no evidence that Mandujano personally conducted the operation of the

racetrack or managed, controlled, or directed the races at the site.

      The State presented no testimony concerning who was in charge of conducting

the horse races, such as whether the owners of the property were in charge or whether

another individual was in charge of managing the business of the racetrack. The

only testimony that the State presented concerning the owners’ involvement with the

racetrack was Investigator Garcia’s testimony concerning Mandujano’s resolution

of the dispute Garcia had with a patron about whether a race had occurred and

Garcia’s testimony that the owners’ family members worked at the property

collecting entrance fees at the gate and selling food and beer. The State presented

no testimony that any of the owners, if they were the ones conducting the races, were

aware of the betting that was occurring among the patrons along the sidelines of the

track before and after races. The State presented no evidence that the owners were

present when betting was occurring and saw bets being placed or money exchanging

hands after a race.6



6
      We note that, in Hurd, the Fourteenth Court concluded that Mandujano knew or
      reasonably should have known that others were betting on the outcomes of races.
      495 S.W.3d at 597–98. The Fourteenth Court based this conclusion on the facts that
      Mandujano owned El Herradero Ranch, he was observed at the racetrack on a race
      day, he paid the employees, and the betting was “open and pervasive.” Id. at 597.
      However, there is no evidence in the record in this case that Mandujano, despite
      being an owner of the property and being present at a race, operated the racetrack
      or otherwise conducted the horse races, or himself saw or aided or participated in
      illegal betting. We therefore disagree with the Fourteenth Court that the State

                                          26
      Based on this record, we conclude that the State presented no evidence that

any property owner, or any other unidentified individual, conducted an identifiable

horse race without a racetrack license when he knew or reasonably should have

known that another person was betting on the final outcome of that race. There was,

therefore, insufficient evidence to convict any person of the offense of violating the

Texas Racing Act. See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16.

      There was likewise no evidence that, at time of the commission of a proven

offense, appellant had an agreement with a primary actor entered with the specific

intent to promote or assist in the commission of the offense and that “the parties were

acting together, each contributing some part towards the execution of their common

purpose.” See Barnes, 62 S.W.3d at 296–97. Appellant could be held criminally

responsible for the conduct of another under the law of parties only if, acting with

intent to promote or assist the commission of the offense, he “solicit[ed],

encourage[d], direct[ed], aid[ed], or attempt[ed] to aid the other person to commit

the offense.” See TEX. PENAL CODE ANN. § 7.02(a)(2); see also Nelson, 405 S.W.3d

at 123 (stating that, to establish guilt under law of parties evidence must show that,

at time of offense, “the parties were acting together, each contributing some part

towards the execution of their common purpose”).



      established Mandujano’s criminal liability as a primary actor beyond a reasonable
      doubt.

                                          27
      There was no evidence of any agreement between appellant and another party

to the offense to conduct a horse race without a racetrack license at the time of

appellant’s alleged offense. And there was no evidence of how appellant and one or

more of the parties acted together to contribute to the execution of a common

purpose of committing the offense. At most, the evidence showed that appellant was

present at a horse race at which betting was occurring.7 Mere presence during the

commission of an offense is legally insufficient evidence to convict a person of an

offense as a party. See Barnes, 62 S.W.3d at 297 (stating that State must show more

than mere presence to establish participation in criminal offense); see also Nelson,

405 S.W.3d at 126 (stating that when defendant is not primary actor, State must

prove conduct constituting offense plus act by defendant done with specific intent to

promote or assist such conduct). As a result, the State failed to prove that appellant




7
      In concluding that the State presented sufficient evidence that the defendant violated
      article 14.16 as a party in Hurd, the Fourteenth Court stated, “The conviction here
      does not rest on proof of [Hurd’s] status within an enterprise that merely had
      criminal potential. Rather, [Hurd’s] conviction rests on evidence of his actions as a
      security officer coupled with evidence that he affirmatively encouraged hand-to-
      hand betting.” 495 S.W.3d at 599. After an undercover officer complained to Hurd
      that he “wasn’t hardly winning anything,” Hurd told the officer that “he should have
      bet $500 on the previous race.” Id. at 598. There was no evidence in this case that
      appellant affirmatively encouraged any of the patrons at El Herradero Ranch to
      engage in betting on the horse races.



                                            28
was guilty of the charged offense as a party.8 See Richardson, 879 S.W.2d at 882;

Barnes, 62 S.W.3d at 296.

      We hold that the State failed to present sufficient evidence to support

appellant’s conviction, either as the primary actor or as a party.

      We sustain appellant’s first issue.9




8
      We note that Penal Code section 7.03(2) provides that “[i]n a prosecution in which
      an actor’s criminal responsibility is based on the conduct of another, the actor may
      be convicted on proof of commission of the offense and that he was a party to its
      commission, and it is no defense . . . that the person for whose conduct the actor is
      criminally responsible has been acquitted, has not been prosecuted or convicted, has
      been convicted of a different offense or of a different type or class of offense, or is
      immune from prosecution.” TEX. PENAL CODE ANN. § 7.03(2) (West 2011)
      (emphasis added); Roberts v. State, 319 S.W.3d 37, 48 (Tex. App.—San Antonio
      2010, pet. ref’d) (holding that primary actor’s acquittal on three counts does not, by
      itself, “prevent appellant’s conviction on these same counts”). Here, however, the
      State has presented no evidence that a primary actor committed the charged offense
      of racing without a license. Section 7.03(2), therefore, does not apply to this case.
9
      Because we hold that the State failed to present sufficient evidence to uphold
      appellant’s conviction, either as the primary actor or as a party, and we thus render
      a judgment of acquittal, we do not address the remainder of appellant’s issues.


                                            29
                                    Conclusion

      We reverse the judgment of the trial court and render a judgment of acquittal.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Justice Jennings, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




                                        30
