Mario Hernandez v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00424-CR
___________________________
MARIO HERNANDEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1513167D
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Mario Hernandez appeals from his conviction for aggravated robbery with a
deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2). In his sole point of error,
Hernandez argues that the evidence was insufficient for the jury to find that he
committed aggravated robbery as a principal. We will overrule Hernandez’s point,
modify the judgment to reflect the correct sentencing date and to show that
Hernandez pleaded “not guilty,” and affirm the judgment as modified.
I. Background
In the early morning hours of July 15, 2017, several theft incidents occurred in
northwest Fort Worth. At about 2:00 a.m., the first victim opened her boyfriend’s
front door to see three men surrounding her running but locked car. 1 After being
spotted, the men slowly walked to a convenience store next door. The victim then
walked out to her car to turn it off. Before opening her car door, the victim heard one
of the men fire a shot behind her, and she ran along the driver’s side to the back of
the car. The man stood in front of her car and pointed a gun in the victim’s direction
until she ran back into the house saying, “forget it, just take it.” The victim described
the men as Hispanic with dark hair, not very tall, slender, and wearing hoodies. The
victim and her boyfriend both testified that the men left from the convenience store’s
parking lot in a faded red, hoodless SUV. Footage from the store’s camera showed a
1
The victim left her car running while visiting her boyfriend because she had to
jump-start the car earlier and was afraid it would die again.
2
red SUV leaving the parking lot at 1:58 a.m. The front passenger was wearing a light-
colored shirt.
At approximately 5:00 a.m., 82-year-old Bobbie Davis was watching a movie in
his garage when something caught his attention. 2 Davis, who is hard of hearing,
turned to see two men standing behind him. Davis described one of the men as “tall
and thin” and the other as “a little bit shorter and thin, too.” Both men wore “cutoff
short pants,” tennis shoes, hoodies, and face masks, and had what Davis described as
“mag lights” on top of their heads. Because the men wore face masks and kept the
lights directed at Davis’s face, Davis could not see their faces. Both men jabbed and
punched “big automatic” pistols in Davis’s stomach. Davis testified that he feared that
the shorter man’s gun would fire because that man was more nervous and jabbed at
Davis more frequently than the taller one. Davis could not hear their demands and
told the two men he was hard of hearing. Davis asked, “[W]hat do y’all want, money?”
and handed over $150 that he had in cash.
The taller gunman then pointed his gun towards Davis’s house, and Davis
yelled, “[Y]ou got my money . . . just go on and leave, just get out.” Davis’s stepson,
Adam Bravo, heard yelling and entered the garage. Bravo saw a “small and scrawny”
“kid” around 5′5″ standing in the garage. That person ran down the street to a red,
hoodless SUV with two other men that Bravo had not seen before. Davis and Bravo
Davis testified that he regularly wakes at 4:00 a.m., showers, and then watches
2
movies or paints in his garage until daylight.
3
heard a gunshot ring out before the SUV drove off. A fired 9 millimeter casing was
later collected from the street in front of Davis’s house.
While responding to calls related to the two theft incidents, Sergeant Francisco
Solano with the Fort Worth Police Department learned that the assailants in both
incidents were Hispanic men in a burgundy red, hoodless SUV. Sergeant Solano also
learned there was at least one firearm. During a call about a third theft incident in the
area, Sergeant Solano, based on his experience working robberies and his familiarity
with the area, “posted up” on West Long Avenue to locate the SUV. Sergeant Solano
located a burgundy red, hoodless SUV traveling eastbound on West Long Avenue and
initiated a traffic stop. Four young Hispanic men with black hair were inside the SUV:
Hernandez, Ryan Delgado, Enrique Perez, and Jose Garcia. On approaching the
driver’s side, Sergeant Solano saw Hernandez, who was sitting behind the front
passenger’s seat, conceal an item under the seat. After being removed from the SUV
and identified, Hernandez escaped Sergeant Solano’s vehicle,3 removed one of the
handcuffs, and hid in a backyard before officers apprehended him again. Three guns
were later found in the SUV: a 9 millimeter, a .40 caliber, and a BB gun.
At trial, the State introduced evidence and expert testimony that the fired
casing found in front of Davis’s house was fired from the 9 millimeter gun found in
3
Sergeants’ vehicles are not equipped with a cage, and the door handle is
accessible. Normal patrol vehicles have cages and a metal plate placed on the door
handles.
4
the SUV. The State also introduced evidence and expert testimony that the .40 caliber
gun could not be fired due to a backwards cartridge in the chamber. Further, only
Hernandez’s fingerprints were on the magazine of the 9 millimeter, to the exclusion
of the SUV’s other three occupants.
At trial, Sergeant Solano and Sergeant Carlos Cespedes identified the other
three SUV occupants from pictures taken the day of the robbery. In the pictures,
Delgado is wearing a light-colored shirt, long pants, and socks with sandals; Perez is
wearing a blue shirt, shorts, and tennis shoes; and Garcia is wearing a black shirt,
shorts, and tennis shoes. The State played police body-camera footage showing
Hernandez wearing a black shirt, black shorts, and tennis shoes. Sergeant Solano
identified Perez as the driver and owner of the SUV, Delgado as the front passenger,
Hernandez as the rear passenger, and Garcia as the rear driver’s-side passenger.
Hernandez was indicted for aggravated robbery with a deadly weapon against
Davis, and a jury found him guilty. See id. The jury also found a repeat-offender
enhancement to be true and assessed his punishment at 40 years’ confinement and a
$10,000 fine. The trial court sentenced Hernandez accordingly.
II. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
5
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Queeman, 520 S.W.3d at 622. The factfinder alone judges the evidence’s weight
and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622.
We may not re-evaluate the evidence’s weight and credibility and substitute our
judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Murray v. State,
457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State, 514 S.W.3d 227,
232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not
engage in a ‘divide and conquer’ strategy but must consider the cumulative force of all
the evidence.”). We must presume that the factfinder resolved any conflicting
inferences in favor of the verdict, and we must defer to that resolution. Murray,
457 S.W.3d at 448–49.
The standard of review is the same for direct- and circumstantial-evidence
cases; circumstantial evidence is as probative as direct evidence in establishing guilt.
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The alternative-
reasonable-hypothesis theory does not apply in reviewing evidentiary sufficiency. Tate
v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (“Although the State must prove
that a defendant is guilty beyond a reasonable doubt, the State’s burden does not
6
require it to disprove every conceivable alternative to a defendant’s guilt.”); Temple v.
State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013); Wise v. State, 364 S.W.3d 900,
903 (Tex. Crim. App. 2012) (“For the evidence to be sufficient, the State need not
disprove all reasonable alternative hypotheses that are inconsistent with the
defendant’s guilt.”).
III. Sufficiency of the Evidence
In his sole point of error, Hernandez argues that the evidence is insufficient to
support his conviction because there was no evidence to show he was a primary actor
in the Davis robbery. The State argues that the circumstantial evidence, and the
inferences properly drawn from it, were sufficient for the jury to reasonably conclude
that Hernandez was a primary actor in the robbery. We agree with the State.
To support his sole point of error, Hernandez advances three arguments:
(1) there were no factually supported inferences identifying Hernandez as a primary
actor;4 (2) the State gave improper argument; and (3) the jury reached an irrational
4
As part of his identity argument, Hernandez argues that a particular jury note
reflects the jury’s concern that he was an accomplice, not a primary actor. But a jury’s
motive in sending a note is not relevant to a sufficiency review. See Smith v. State,
No. 2-05-322-CR, 2006 WL 1494616, at *3 n.2 (Tex. App.—Fort Worth June 1, 2006,
pet. ref’d) (per curiam) (mem. op., not designated for publication) (sending jury notes
does not impact sufficiency analysis); cf. Cox v. State, 931 S.W.2d 349, 353 (Tex.
App.—Fort Worth 1996) (“The record does not reveal whether the jury’s inquiry was
due to prejudice, sympathy, or mere curiosity. In order to presume a motive behind
the jury’s question, we would have to indulge in speculation, and we will not.”), pet.
dism’d, improvidently granted, 951 S.W.2d 5 (Tex. Crim. App. 1997).
7
decision based on the State’s inflammatory use of extraneous conduct.5 Hernandez
concedes—and we agree—that his second and third arguments were not preserved
because he failed to object at trial, so we will not address them. See Tex. R. App. P.
33.1(a)(1).
Hernandez’s remaining argument revolves around identification.6 Hernandez
argues that because there is no direct evidence of the robbers’ identities, there is no
evidence establishing his identity as one of the robbers. In support of his argument,
Hernandez points to the following evidence:
• Davis and Bravo did not identify Hernandez as one of the robbers.
• Bravo identified one actor as “white complected,” which Hernandez is
not.
5
Hernandez also argues that he could not be convicted as a party because the
State never requested a parties charge for the jury. Because we hold the evidence is
sufficient to uphold Hernandez’s conviction as charged, we decline to address this
argument.
6
Hernandez argues two distinct alternative theories for who the primary actor
could be. First, because three other individuals were present in the SUV, all
passengers had equal access to the gun and could be the primary actor. Second,
because the SUV was apprehended over an hour after the Davis robbery and the SUV
passengers all lived near each other, the identity of the SUV passengers could have
changed, and the primary actor could have been dropped off before the traffic stop.
The State is not required to disprove all reasonable alternative hypotheses, and the
Texas Court of Criminal Appeals explicitly rejected the alternative-hypothesis
analytical construct in Geesa v. State, 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991).
See Wise, 364 S.W.3d at 903.
8
• Hernandez was not wearing a hoodie or a mask, and neither was found
on or near his person or in the red SUV.
• Hernandez’s fingerprints were not on the trigger and grip of the
9 millimeter, nor could his fingerprints on the magazine be dated.
• Hernandez did not have any stolen property on his person, and his
fingerprints and DNA were not found on any of the stolen items in the
SUV.
“A person commits robbery if, in the course of committing theft and with
intent to obtain or maintain control of the property, he intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death.” Hernandez v.
State, 501 S.W.3d 264, 268 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing Tex. Penal
Code Ann. § 29.02(a)(2)). If a person uses or exhibits a deadly weapon, the offense
becomes aggravated robbery. Tex. Penal Code Ann. § 29.03(a)(2). The State may
prove identity by direct or circumstantial evidence, coupled with all reasonable
inferences from the evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App.
2009). If the State relies on circumstantial evidence for identification, the evidence is
sufficient when the conclusion is warranted by the combined and cumulative force of
all the incriminating circumstances. See Temple, 390 S.W.3d at 359–60.
Here, the jury could have found beyond a reasonable doubt that Hernandez
was a principal actor who robbed Davis from the following circumstantial evidence:
9
• The first victim of the night described three Hispanic men with dark hair
who were slender and not very tall. One man fired a gun.
• That first victim and her boyfriend described a faded red, hoodless SUV
leaving the convenience store next door. Footage from the convenience
store’s camera showed a red SUV leaving the parking lot. The front
passenger can be seen wearing a light-colored shirt.
• Davis testified that he was robbed by two men, both wearing “cutoff
short pants” and tennis shoes, but one man was “tall and thin” while the
other was “a little bit shorter and thin, too.” Davis also said he was
scared as both men had “big automatic” pistols and both jabbed and
punched him in the stomach.
• Bravo heard yelling and entered the garage where he saw a short, thin
man.
• Davis and Bravo heard a gunshot before a red, hoodless SUV left from
across the street from Davis’s house. Police collected a fired 9 millimeter
casing from the street in front of Davis’s house.
• While responding to the first two theft incidents, Sergeant Solano
learned the assailants were Hispanic men in a burgundy red, hoodless
SUV with at least one gun. Sergeant Solano located a matching SUV
with four young Hispanic men inside.
10
• Sergeant Solano saw Hernandez, sitting in the rear passenger seat, put
something under the seat. Sergeant Solano and Sergeant Cespedes
identified the four SUV occupants, including Hernandez.
• After being placed in Sergeant Solano’s vehicle, Hernandez temporarily
escaped.7
• Three guns were located in the SUV including a 9 millimeter that was
the source of the casing found in front of Davis’s house.
• Only Hernandez’s fingerprints were found on the 9 millimeter’s
magazine.
• Pictures taken of the other three SUV occupants on the day of the
robbery show Delgado wearing a light-colored shirt, long pants, and
socks with sandals; Garcia wearing a black shirt, shorts, and tennis shoes;
and the relatively heavy-set Perez wearing a blue shirt, shorts, and tennis
shoes.
From the last bit of summarized evidence, the jury could have reasonably
eliminated Perez and Delgado as the gunmen who robbed Davis. Delgado was
wearing neither short pants nor tennis shoes; Perez, a heavy-set man, did not match
7
“Flight is a circumstance from which guilt may be inferred.” Cantrell v. State,
731 S.W.2d 84, 92 (Tex. Crim. App. 1987).
11
Davis’s or Bravo’s descriptions.8 This leaves Hernandez and Garcia, both of whom
are thin and were wearing shorts the day of the robbery. Moreover, the spent casing
came from the 9 millimeter found in the vehicle, and only Hernandez’s fingerprints
were found on that gun.
From all the circumstantial evidence and the reasonable inferences drawn from
it, a rational jury could have found beyond a reasonable doubt that Hernandez was
one of the two gunmen with “big automatic” pistols who intentionally or knowingly
threatened or placed Davis in fear of imminent bodily injury or death while
committing theft with an intent to obtain or maintain control of Davis’s $150.
Viewing the evidence in the light most favorable to the verdict, we hold the evidence
is sufficient to support Hernandez’s aggravated-robbery-with-a-deadly-weapon
conviction. We overrule Hernandez’s sole point of error.
IV. Modification of the Judgment
The trial court’s judgment does not show Hernandez’s plea to the offense. The
State asks us to modify the trial court’s judgment to reflect that Hernandez pleaded
“not guilty.” While examining the trial court’s judgment, we noticed another clerical
error in the judgment: the sentencing date is incorrect.
8
While there is testimony from Bravo and Sergeant Solano about one gunman
or one gun, the jury also heard and was permitted to weigh their testimony against
Davis’s testimony of two gunmen with two guns jabbing him in the stomach.
12
On the first day of trial, Hernandez pleaded “not guilty” to the offense. The
next day, Hernandez voluntarily absented himself from the remainder of trial. The
jury found him guilty and assessed punishment against Hernandez in absentia.9 That
same day, the trial court sentenced Hernandez in absentia in accordance with the
jury’s verdict. Ten months later, Hernandez was apprehended, and the trial court
sentenced him in person in accordance with the jury’s verdict.10 Hernandez then
appealed.
The trial court’s judgment does not reflect the correct sentencing date or
Hernandez’s “not guilty” plea. It is well established that we may modify a judgment to
make it speak the truth. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992); see also Tex. R. App. P. 43.2(b). When the oral pronouncement of a sentence
varies from the written judgment, the oral pronouncement will control. Ex parte
Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citing Coffey v. State, 979 S.W.2d
326, 328 (Tex. Crim. App. 1998)). Here, because the written judgment does not reflect
9
In a felony prosecution, the defendant must be personally present at trial, but
if he “voluntarily absents himself after pleading to the indictment or information, or
after the jury has been selected when trial is before a jury, the trial may proceed to its
conclusion.” Tex. Code Crim. Proc. Ann. art. 33.03; see id. art. 37.06 (“In felony cases
the defendant must be present when the verdict is read unless his absence is wil[l]ful
or voluntary.”).
10
Generally, a defendant must be sentenced in person. See id. art. 42.03(1)(a). If
no sentence is pronounced or is improperly pronounced, a trial court may later
properly pronounce the sentence, and a defendant may then appeal. See Clemons v.
State, 414 S.W.2d 940, 941 (Tex. Crim. App. 1967); Pruitt v. State, 737 S.W.2d 622,
623 (Tex. App.—Fort Worth 1987, pet. ref’d).
13
Hernandez’s “not guilty” plea or the correct sentencing date—November 11, 2019—
we will modify the judgment accordingly.
V. Conclusion
We modify the judgment (1) to delete and replace “1/17/2019” as the “Date
Sentence Imposed” with “11/11/2019” and (2) to add “Not Guilty” as the “Plea to
the Offense.” Having overruled Hernandez’s sole point of error, we affirm the
judgment as modified. See Tex. R. App. P. 43.2(b).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 1, 2021
14