                           NUMBER 13-09-00555-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ERIC GARCIA,                                                            Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 148th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
                  Before Justices Garza, Vela, and Perkes
                  Memorandum Opinion by Justice Garza
      Appellant, Eric Garcia, was indicted for aggravated robbery, see TEX. PENAL

CODE ANN. § 29.03 (Vernon 2003), but a jury found him guilty of the lesser-included

offense of aggravated assault, see id. § 22.02(a) (Vernon Supp. 2010). The trial court

found the State‘s enhancement allegations of two prior felony convictions ―true,‖ and

sentenced him to thirty years‘ imprisonment. See id. §§ 22.02(b), 12.42(d) (Vernon
Supp. 2010). By four issues, appellant contends: (1) the evidence is insufficient to

support his conviction; (2) the trial court erred in admitting a photograph; (3) the trial

court erred in denying his motion for mistrial based on alleged juror bias; and (4) the jury

charge‘s application paragraph on the lesser-included offense of aggravated assault

erroneously included the elements of the greater offense of aggravated robbery. We

affirm.

                                               I. BACKGROUND

A.        The State’s Evidence

          On January 23, 2009, around 10:45 p.m., police officers responded to a 911 call

from Elizabeth Ruiz regarding a home invasion and robbery by three suspects. Ruiz

was home with her husband, Darryl Rodriguez, and their children when the incident

occurred.         We detail below relevant testimony presented by some of the State‘s

witnesses. The defense presented no witnesses.

1.   Darryl Rodriguez

          Rodriguez testified that after hearing a noise, he went out the back of his house

to investigate. He was confronted by three men wearing hoodies and bandannas over

their faces.         One of the men stuck a gun in his face.                 The men started beating

Rodriguez, and during the struggle, he fell and hit his head. Rodriguez said he would

give the men ―whatever they want[ed].‖ One of the men spotted Martin Ramos, a friend

who was working in Rodriguez‘s garage, and escorted him into the house at gunpoint. 1

Two of the men held guns on Rodriguez and Ramos in the kitchen; the third man, also

armed with a gun, went into a bedroom and confronted Ruiz. Rodriguez opened the

kitchen cabinet where he kept approximately $15,000 and a gun; when one of the men
          1
              Martin Ramos‘s testimony was consistent with Rodriguez‘s as to the events that transpired.

                                                        2
was momentarily distracted, Rodriguez grabbed his gun from the cabinet and began

firing. The two men returned fire. Rodriguez ran out of the kitchen and down the

hallway. In the hallway, he was attacked by the third man, who picked him up and held

him in a ―choke hold.‖ Rodriguez put his gun over his shoulder and fired once. The

third man then ran out of the house. Rodriguez retrieved another gun and returned to

the kitchen, where he saw one of the men on the floor reaching for his gun. Rodriguez

shot him ―a few more times,‖ took his gun away, and told Ruiz to call the police. When

the police arrived, they found one person dead outside near a maroon Lincoln Town

Car. Rodriguez did not know any of the men involved in the incident.

   2. Elizabeth Ruiz

       Ruiz testified that she ―knew something was wrong‖ when she saw a man with a

bandanna over his face in her home. She ran to her bedroom, but one of the men

followed, pointed a gun at her face, and told her to get on the floor. She saw the man

―mess around‖ with the top of her dresser. Ruiz identified her wedding ring, which was

later found on the seat of the Lincoln.

   3. Detective Curtis Abbott

       Curtis Abbott, a detective with the Corpus Christi police department, testified that

when he arrived at the house, the crime scene had been secured by other patrol

officers. One person was found dead in front of the house next to a maroon Lincoln.

Detective Abbott said he observed blood in the street leading away from the residence.

Other evidence was discovered nearby: a gun with blood on it was found in a trash can;

a black bandanna was found in the yard, and a baseball cap was found behind some




                                            3
bushes on a nearby street.2            In the course of investigating the incident, the police

discovered marihuana and cocaine, along with numerous weapons in the Rodriguez

house. Detective Abbott testified that the deceased person was wearing latex gloves.

Another person found inside the house was suffering from multiple gunshot wounds and

was transported for emergency medical treatment.                       Shortly after the incident, on

February 5, 2009, Detective Abbott met with appellant, and noticed that appellant‘s right

arm was bandaged around the elbow and was in a sling.

    4. Robin Olson Castro

         Robin Olson Castro, a forensic scientist with the Texas Department of Public

Safety Crime Laboratory in Corpus Christi, testified that she performed DNA analysis on

evidence collected in the case. Blood sample evidence taken from the driveway of the

residence, as well as samples taken from a nearby sidewalk, curb, and a curb in front of

nearby Brawner Parkway, was consistent with Garcia‘s DNA profile. Blood samples

taken from the Lincoln, including the steering wheel and interior and exterior, were

consistent with Garcia‘s DNA profile. In addition, blood samples taken from the gun,

baseball cap, and bandanna were consistent with Garcia‘s DNA profile.

    5. Katrina Aggeloupolous

         Katrina Aggeloupoulous, a latent-print examiner with the Corpus Christi Police

Department, testified that Garcia‘s prints were found on the exterior of the passenger‘s

side of the Lincoln‘s windshield.

    6.       State’s Exhibit 9

         The State also introduced and played for the jury an audio recording of a


         2
          Other trial testimony established that the blood trail continued for approximately fifty to seventy-
five yards. The trash can containing the gun was approximately fifty yards from the house.

                                                      4
telephone call that appellant made to his mother from jail. During the call, appellant

says that he was present at the Rodriguez house, but will not answer questions about

others because he does not want anyone saying that he ―snitched.‖

                             II. SUFFICIENCY OF THE EVIDENCE

   A.    Standard of Review

        The court of criminal appeals has recently held that there is ―no meaningful

distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis

factual-sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. 2010) (plurality

op.). Accordingly, we review claims of evidentiary sufficiency under ―a rigorous and

proper application of the Jackson standard of review.‖ Id. at 906-07, 912.

        Under the Jackson standard, ―the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (characterizing

the Jackson standard as: ―Considering all of the evidence in the light most favorable to

the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt‖).

        We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.–Corpus Christi 2004, pet. ref‘d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). In order to prove that appellant committed the offense of



                                              5
aggravated assault under section 22.02 of the penal code, as alleged in the indictment,

the State was required to prove that (1) appellant (2) either acting alone or as a party3;

(3) intentionally or knowingly; (4) threatened or placed Darryl Rodriguez in fear of

imminent bodily injury or death; and (5) used or exhibited a firearm during the assault.4

    B. Discussion

        Appellant‘s challenge to the sufficiency of the evidence is limited to the issue of

identity. Specifically, appellant argues that ―no one has identified the defendant nor did

they connect him to the person that had committed the robbery.‖                          We disagree.

Although Rodriguez, Ruiz, and Ramos each testified that they could not identify the

assailants because their faces were covered with bandannas, the State introduced DNA

evidence from blood samples collected from the front of the residence and leading down

the street; such evidence was consistent with appellant‘s DNA profile. Similarly, blood

evidence collected from the Lincoln, a gun found in a nearby trash can, a black

bandanna found in the yard, and a baseball cap found nearby matched appellant‘s DNA

profile. Appellant‘s fingerprints were also found on the Lincoln‘s windshield. Rodriguez

testified that when one of the assailants picked him up and held him in a head lock, he

put his gun over his shoulder and shot. When Detective Abbott saw appellant less than

two weeks after the incident, appellant‘s right arm was bandaged and in a sling. The


        3
          Appellant was charged as a party. See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003) (―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.‖).
        4
          See id. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2010). We note that the application
paragraph of the charge on aggravated assault included an additional element: ―while in the course of
committing theft . . . .‖ The addition of this element is the subject of appellant‘s fourth issue, which we
address separately. As noted, we review the sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 (Tex. App.–
Corpus Christi 2004, pet. ref‘d).

                                                    6
only controverting evidence that appellant points to is: (1) no witness identified him; and

(2) Rodriguez‘s credibility was ―suspect at best‖ because drugs and large amounts of

cash were in the house.

        Viewing all the evidence in the light most favorable to the verdict, we conclude

the evidence is legally sufficient for a rational jury to find appellant guilty of aggravated

assault beyond a reasonable doubt. We overrule appellant‘s first issue.

                                 III. ADMISSION OF PHOTO

        By his second issue, appellant contends the trial court erred in admitting ―State‘s

Exhibit 7‖, described as a photograph taken at the crime scene of the deceased

person‘s hand wearing a latex glove. Appellant contends that the photograph was not

material to any issue, was ―gruesome‖ and ―highly inflammatory,‖ and that its prejudicial

nature outweighed its probative value. See TEX. R. EVID. 403.

   A.      Standard of Review

        The admissibility of photographs is within the sound discretion of the trial judge.

Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009); Williams v. State, 958

S.W.2d 186, 195 (Tex. Crim. App. 1997).          Generally, a photograph is admissible if

verbal testimony as to matters depicted in the photographs is also admissible. Young,

283 S.W.3d at 854.

        In determining whether the probative value of photographs is substantially

outweighed by the danger of unfair prejudice, we consider several factors, including, but

not limited to: (1) the number of exhibits offered; (2) their gruesomeness, size, and

detail; (3) whether they are black and white or color; (4) whether they are close-up; (5)

whether the body is naked or clothed; and (6) the availability of other means of proof



                                             7
and the circumstances unique to each case. Hayes v. State, 85 S.W.3d 809, 815 (Tex.

Crim. App. 2002).

B.     Discussion

       Appellant challenges the admission of ―State‘s Exhibit 7.‖       State‘s Exhibit 7,

however, was not admitted. State‘s Exhibit 2 was admitted and includes a photograph

of the deceased person‘s hand. Appellant‘s counsel objected to two of the photographs

in State‘s Exhibit 2 showing the decedent on grounds that they were not relevant and

that any probative value was outweighed by their prejudicial effect.        The following

discussion occurred before the court prior to jury selection:

       [Defense counsel]: And my argument would simply be it‘s not relevant,
                          first of all. If the Court does deem it relevant, it‘s the
                          probative value is exceeded by the prejudicial effect,
                          and it will also cause jury confusion as to who‘s on
                          trial here today and what this is about.

       [Prosecutor]:        Well, it helps account for the other two individuals and
                            they just—it excludes anybody else from the three,
                            except for Mr. Garcia, that we can account for the
                            other two and where they are.

       [Court]:             Okay. I‘m going to sustain his objection.

       [Defense counsel]: As to all the photos, or—

       [Court]:             Well, you didn‘t have an objection as to the trash can
                            or the other one.

       [Defense counsel]: No.

       [Court]:             Just to the ones of the decedent?

       [Defense counsel]: Right.

       [Court]:             So however you want to do that.

       [Prosecutor]:        We‘ll cut it out.



                                                8
[Defense counsel]: Okay.

[Court]:            Okay.

[Defense counsel]: And then this proposed State‘s Exhibit Number 7,
                   along those—let‘s see. Okay. First of all—

[Prosecutor]:       Hang on.

[Defense counsel]: Go ahead.

[Prosecutor]:       As to the decedent, you said—

[Court]:            That one and the hand.

[Prosecutor]:       Well, the hand I want to offer it because it shows that
                    the individuals were all wearing latex gloves which
                    shows—it‘s proof to show that they‘re doing a robbery
                    and they‘re not trying to leave any fingerprints.

[Court]:            Is that what that is?

[Prosecutor]:       Yes. And the latex gloves—or the purpose we‘re
                    saying is so they won‘t leave any fingerprints behind
                    at the crime scene.

[Defense counsel]: I don‘t think there‘s been any evidence that‘s going to
                   be presented by eyewitnesses that my client had latex
                   gloves on. I don‘t know that that‘s going to be—

[Prosecutor]:       I don‘t remember, but we have the actual man that
                    was—said he struggled with him, or who he saw out
                    there. But people that normally wear latex gloves at a
                    crime scene is to keep from leaving any fingerprints
                    behind. And that would be consistent with these
                    individuals doing a robbery or some kind of crime
                    there.

[Court]:            Okay. I‘ll allow the hand, but not the body.

[Prosecutor]:       Yeah. I‘ll cut it out.

[Defense counsel]: And then we have State‘s proposed Exhibit Number
                   7. The—this is another—there are nine photos on
                   this one 8 by 11 sheet of paper. The middle—on the
                   left-hand column, the middle photo would—this is—for

                                      9
                               the same reason I‘m objecting to this too. It‘s the
                               hand of the decedent with a latex glove and it‘s tore
                               [sic] up.   I‘m also going to object to this as
                               unnecessarily gruesome.

       [Prosecutor]:           I just need one photo with the hand with the latex
                               glove, Your Honor.

The State withdrew its request to admit State‘s Exhibit 7 because ―[w]e‘ve got the other

one.‖ It is clear that appellant‘s counsel objected to the admission of the photograph of

the deceased person‘s hand. Accordingly, out of an abundance of caution, we will

address appellant‘s complaint as it relates to the photograph in State‘s Exhibit 2.

       State‘s Exhibit 2, showing the deceased person‘s hand wearing a latex glove,

was re-introduced during the testimony of Detective Abbott.                 He testified that latex

gloves were recovered from the body of the decedent and that latex gloves prevent a

person from leaving fingerprints. The photograph at issue is a three-and-a-half by five-

inch color photograph showing the deceased person‘s hand wearing a lacerated latex

glove, palm up, and approximately six inches of the decedent‘s forearm, covered by

what appears to be a long-sleeved sweatshirt.                The sleeve is slightly pushed up,

revealing a partial tattoo.       There is some blood on the end of the sleeve.                   The

photograph has probative value because, as the prosecutor argued, it establishes that

the assailants took precautions to avoid leaving fingerprints.5 No other photographs of

the deceased person were admitted. The trial court admitted the photograph of the

deceased person‘s hand, but did not admit a photograph of the body. We conclude that

the photograph is relevant and that its probative value is not substantially outweighed by

its possible prejudicial effect. See TEX. R. EVID. 403. Thus, we conclude that the trial


       5
         The photograph thus has probative value as to appellant‘s liability as a party to robbery. See
TEX. PENAL CODE ANN. § 7.02(a)(2).

                                                  10
court did not abuse its discretion in admitting the photograph of the deceased person‘s

hand in State‘s Exhibit 2. We overrule appellant‘s second issue.

                                      IV. JUROR BIAS

       By his third issue, appellant contends the trial court erred in denying his motion

for mistrial based on alleged juror bias. Appellant contends that one of the jurors stated

that she was ―extremely angry‖ and felt ―like a prisoner‖ because the trial court called a

recess on the second day of trial and the trial did not continue until five days later.

Appellant argues that the juror‘s anger and hostility affected her deliberations in the

case and prevented him from receiving a fair trial.

A.   Standard of Review

       We review a trial court's ruling on a motion for a mistrial using an abuse of

discretion standard, viewing the record in the light most favorable to the trial court's

ruling and upholding that ruling if it was within the zone of reasonable disagreement.

See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). A trial court abuses

its discretion in denying a motion for a mistrial only when no reasonable view of the

record could support the court's ruling. Id.

       The decision to remove or retain a juror lies within the discretion of the trial court.

Uranga v. State, 330 S.W.3d 301, 307 (Tex. Crim. App. 2010); Bjorgaard v. State, 220

S.W.3d 555, 560 (Tex. App.–Amarillo 2007, pet. dism'd) (citing Anderson v. State, 633

S.W.2d 851, 853-54 (Tex. Crim. App. 1982)). When reviewing a trial court's decision

regarding potential jury misconduct, an appellate court should defer to the trial court's

resolution of the historical facts and its determinations concerning credibility and

demeanor. See Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997); see also



                                               11
Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009) (holding that because a

juror testified that he could remain impartial despite overhearing a conversation about

the case he was serving on, the trial court did not abuse its discretion in denying a

mistrial). A juror is biased when an inclination toward one side of an issue rather than to

the other leads to the natural inference that the juror will not or did not act with

impartiality. Anderson, 633 S.W.2d at 853.

B. Discussion

       On the second day of trial, the trial court told the jury that it was necessary to

recess the trial because of a ―medical situation.‖6 One of the jurors, N. K., told the court

that because of her work schedule and obligations, she would suffer a hardship if she

was required to return the following week.

       When the trial resumed five days later, appellant‘s counsel advised the court that

Juror N. K. ―appear[ed] to be very angry‖ and was ―glaring‖ at counsel and the court.

Outside the presence of the other jurors, the trial court questioned Juror N. K. about her

ability to be fair. Juror N. K. responded:

       [Juror N. K.]:          I will be fair, but I‘m extremely angry. I feel like a
                               prisoner. I feel like my rights have been taken away.
                               And I think what you guys have done to all of us
                               jurors, to hold us over for a week is totally
                               unconscionable. And I‘ll be very honest with you, I
                               don‘t appreciate it. I—I think I—it‘s just a total lack of
                               respect for all 12 of us.

       [Court]:                Okay.    Now, we appreciate your concern.           I
                               appreciate if you keep those concerns to yourself, if
                               you have not already expressed it to them.

       [Juror N. K.]:          I‘m not the only one that feels that way, ma‘am.


       6
           When trial resumed five days later, appellant‘s counsel advised, outside the presence of the
jury, that appellant had suffered a mild heart attack, but was ―okay.‖

                                                  12
       [Court]:              Okay.

       [Juror N. K.]:        We‘ve all really—we‘ve all expressed our opinions to
                             ourselves.

       When the other jurors returned to the courtroom, the trial judge noted that the

―issue‖ of being required to return for service had come to her attention, and it was

necessary to inquire as to whether the jurors could be ―fair to both sides.‖ The trial court

explained that the delay was ―beyond anybody‘s control‖ and polled the jurors

individually as to whether each could be fair. Each juror responded affirmatively. After

the jurors were again excused, appellant‘s counsel argued that appellant would not

receive a fair trial and requested a mistrial. The trial court denied the request for a

mistrial.

       In Uranga, the court of criminal appeals held that the trial court did not abuse its

discretion in denying a motion for mistrial on alleged juror bias. Uranga, 330 S.W.3d at

307. In Uranga, a juror learned during the punishment phase that the defendant had

damaged the juror‘s property in an extraneous offense. Id. at 302-03. The trial court

held a hearing during the trial, questioned the juror regarding any actual bias, instructed

the juror to not allow the incident to influence his decision, and accepted the juror‘s

promise that he would not use the incident against the defendant in deciding the

sentence. Id. The court of criminal appeals held that the trial court did not abuse its

discretion in refusing to grant a mistrial. Id. at 307.

       Similarly, in the present case, the trial judge held a hearing during the trial,

questioned Juror N. K., questioned the jurors individually, and obtained assurances that

each juror could be fair. We conclude that the trial court did not abuse its discretion in

denying the motion for mistrial. We overrule appellant‘s third issue.

                                              13
                                          V. CHARGE ERROR7

        By his fourth issue, appellant complains that ―[t]he trial court purported to submit

to the jury a lesser-included offense of aggravated assault but actually submitted to the

jury the charge of aggravated robbery twice; one section was merely labeled

aggravated assault.‖ The State concedes that the application paragraph of the charge

on the lesser-included offense of aggravated assault incorrectly repeated the elements

of aggravated robbery, the greater offense.                 The State argues, however, that the

erroneous instruction did not harm appellant because it increased the State‘s burden to

prove the additional element that the assault occurred ―while in the course of committing

theft of property and with the intent to obtain and maintain control over the property.‖

    A. Standard of Review

        ―A claim of jury-charge error is reviewed using the procedure set out in Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).‖ Barrios v. State, 283 S.W.3d

348, 350 (Tex. Crim. App. 2009). ―The first step is to determine whether there is error in

the charge.‖ Id. “If there was error and appellant objected to the error at trial, reversal

is required if the error ‗is calculated to injure the rights of the defendant,‘ which we have

defined to mean that there is ‗some harm.‘‖ Id. (quoting Almanza, 686 S.W.2d at 171).

―If the error was not objected to, it must be ‗fundamental‘ and requires reversal . . . only

if it was so egregious and created such harm that the defendant ‗has not had a fair and

impartial trial.‘‖ Id. (quoting Almanza, 686 S.W.2d at 171).

    B. Discussion


        7
          After appellant‘s attorney filed a brief in this case, appellant filed a pro se brief addressing his
fourth issue. It is well-settled that an appellant has no right to hybrid representation in Texas. Ex parte
Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001). Accordingly, we consider only the issues raised in
appellant‘s counsel‘s brief and do not address arguments raised in appellant‘s pro se brief.

                                                     14
       It is undisputed that the application paragraph for aggravated assault contained

an additional element and that appellant did not object to the charge on that basis. We

need not decide, however, whether the charge was erroneous because even if we were

to presume error, appellant cannot prevail because he cannot show he was harmed by

the inclusion of the additional element in the application paragraph. Appellant makes no

argument whatsoever regarding harm. He simply asserts that he ―should be acquitted‖

because both application paragraphs contained the same language.                Moreover,

appellant was not harmed by an instruction that required the State to prove an

additional element. See Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.–El Paso

1996, pet. ref‘d) (holding defendant was not harmed by an element of proof that was

additional to that actually necessary to convict). We overrule appellant‘s fourth issue.

                                     VI. CONCLUSION

       We affirm the trial court‘s judgment.


                                                    DORI CONTRERAS GARZA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
14th day of April, 2011.




                                               15
