Affirmed and Memorandum Opinion filed April 2, 2015.




                                       In The

                       Fourteenth Court of Appeals

                                 NO. 14-14-00084-CR

                            RICKY MOLINA, Appellant
                                         V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 174th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1307050

                   MEMORANDUM                    OPINION


      A jury convicted appellant Ricky Molina of aggravated robbery with a deadly
weapon. The jury sentenced appellant to confinement for sixteen years in the
Institutional Division of the Texas Department of Criminal Justice. Appellant filed a
timely notice of appeal. We affirm.
                                         BACKGROUND

      The complainant was parked at her apartment complex located at 2828 Hayes, in
Houston, Harris County, Texas. Her car was running. She saw a man a few spaces
down. A few minutes later, the man knocked on her window and told her to open the
door. The man displayed a gun when the complainant failed to open the door. The
complainant exited her car and the man drove off in it.

      The complainant’s car was found and appeared to have been intentionally set on
fire. Jeff Brownson, an investigator with the Fort Bend County Fire Marshal’s office,
testified video surveillance showed Julio Hernandez started the fire and fled in a car
registered to Carlos Molina, appellant’s brother. Based on Carlos’s statement, he and
appellant were charged with arson. Brownson then handed the matter over to the
Houston Police Department for its robbery investigation.

      Detective Spivey of the Houston Police Department testified that she was given
the names of Carlos Molina and appellant as possible suspects. Spivey determined that
appellant was the more likely suspect and she prepared a spread containing his
photograph. When shown the spread, the complainant chose appellant’s photograph.
The complainant also identified the appellant in court as the man who took her car at
gunpoint.

      Appellant was charged with aggravated robbery and convicted by a jury. In his
appeal, appellant raises two issues. First, appellant claims the trial court erred in
excluding evidence. Second, he argues the evidence was insufficient to support his
conviction because it is based solely on an unreliable identification.

                                   EXCLUSION OF EVIDENCE

      In his first issue, appellant claims the trial court erroneously excluded testimony
from Detective Spivey regarding her knowledge of misidentifications in police

                                             2
investigations. The State argues appellant failed to preserve any error by failing to make
an offer of proof.

      To preserve error regarding a trial court’s decision to exclude evidence, the
complaining party must comply with Rule of Evidence 103 by making an “offer of
proof” which sets forth the substance of the proffered evidence. Mays v. State, 285
S.W.3d 884, 889 (Tex. Crim. App. 2009); Tex. R. Evid. 103(a)(2). See also Watts v.
State, 371 S.W.3d 448, 464 (Tex. App.–Houston [14th Dist.] 2012, no pet.). Under Rule
103, a party may not predicate error on a ruling that excludes evidence unless a
substantial right of the party is affected and the substance of the evidence was made
known to the court by offer of proof or was apparent from the context of the questions
asked. Tex. R. Evid. 103(a)(2).

      The primary purpose of an offer of proof is to enable an appellate court to
determine whether the exclusion was erroneous and harmful. Mays, 285 S.W.3d at 890.
A secondary purpose is to permit the trial court to reconsider its ruling in light of the
actual evidence. Id. See also Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App.–
Houston [14th Dist.] 2012, no pet.). Absent a showing of what such testimony would
have been, or an offer of a statement concerning what the excluded evidence would
show, nothing is presented for review. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim.
App. 1999).

      The record in this case does not indicate what the excluded testimony would have
been. Accordingly, appellant has failed to present anything for our review on appeal.
See Montgomery, 383 S.W.3d at 726–27. We overrule appellant’s first issue.




                                            3
                               SUFFICIENCY OF THE EVIDENCE

      In his second issue, appellant claims the evidence is insufficient to support the
jury’s verdict because it was based solely on the complainant’s pretrial identification of
him in a photo lineup that appellant contends was unreliable. The record reflects that no
objection was made either when the photographic array was admitted into evidence or
when the complainant identified appellant as the robber in court. Accordingly, any
complaint regarding the admissibility of the identifications was waived. See In re
G.A.T., 16 S.W.3d 818, 827 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
(finding the failure of the defendant to object in the trial court about the out-of-court
identification procedure or the in-court identification waived any error). In reviewing
the record in its entirety, we find that the evidence was sufficient to support the jury’s
verdict.

      In reviewing the sufficiency of the evidence we are required to examine all of the
evidence in the light most favorable to the verdict and determine whether a rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The record
reflects the complainant testified she parked in front of the building and it was lit. She
saw a man nearby, about two to three parking spaces away and there were no vehicles
between them. The complainant testified that she could see him clearly. She identified
appellant at trial as that man. About two minutes later, she saw appellant through her
side mirror, crawling on the ground. All of a sudden, someone knocked on her driver’s
side window. Appellant said, “Open the door” and she said “no.” Appellant then put a
gun to the window and said, “Open the f***ing door or I will shoot you.” The
complainant unlocked the door, opened it, and said “Please don’t shoot me, just please
don’t shoot.” The complainant got out of the car, backing up, while appellant continued
to hold the gun on her. Appellant said, “Give me your phone” and snatched it from her

                                            4
hand. The complainant grabbed her dog and took off running. The complainant did not
know in which direction appellant went, “but he reversed and drove away.”

      “We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence.” Johnson v. State, 421 S.W.3d 893, 897 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). It is the jury’s responsibility to resolve any
conflicts in the evidence fairly, weigh the evidence, and draw reasonable inferences. Id.
A conviction may be based on the testimony of a single eyewitness. Bradley v. State,
359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Aguilar
v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). “The jury alone decides whether to
believe eyewitness testimony.” Id. (citing Mosley v. State, 983 S.W.2d 249, 254 (Tex.
Crim. App. 1998)). Because it is the sole judge of the weight and credibility of the
evidence, the jury may find guilt without physical evidence linking the accused to the
crime. Johnson, 421 S.W.3d at 896. In conducting a sufficiency review, we only ensure
the jury reached a rational decision. Id. (citing Young v. State, 358 S.W.3d 790, 801
(Tex.App.—Houston [14th Dist.] 2012, pet. ref’d)).

      The complainant’s in-court testimony identifying appellant as the man who
pointed a gun at her, threatened to shoot her, and took her car is evidence from which a
rational trier of fact could find appellant committed aggravated robbery. Considering all
the evidence in the light most favorable to the verdict, we hold that the evidence is
sufficient to support the jury’s verdict. Appellant’s second issue is overruled and the
judgment of the trial court is affirmed.


                                           /s/       Marc W. Brown
                                                     Justice


Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

                                                 5
