Gary Clifton Hurd v. State

Affirmed and Opinion filed August 9, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00343-CR
GARY CLIFTON HURD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1405783
OPINION
A jury convicted appellant Gary Clifton Hurd of the felony offense of
conducting a horse race without a racetrack license when appellant knew or
reasonably should have known that another person was betting on the partial or
final outcome of the race. See Tex. Rev. Civ. Stat. Ann. art. 179e, § 14.16 (Vernon
Supp. 2015). Appellant contends that (1) he was outside of the class of individuals
that the statute was intended to prosecute; and (2) the evidence is legally
insufficient to support the jury’s verdict. We affirm.
BACKGROUND
Authorities investigated an unlicensed horse racing track called El Herradero
between November 2012 and October 2013. Undercover officers visited El
Herradero on eight different occasions during the investigation. Although the
racetrack did not have house wagering and had signs posted that gambling was not
allowed, officers observed open and pervasive hand-to-hand wagering between
spectators on the outcomes of the races.1
Undercover officers observed appellant working security for the racetrack on
several occasions during the investigation. At the time, appellant was volunteering
as an unpaid reserve deputy for the Fort Bend County Constable. A state trooper
ran security operations for the racetrack and approached appellant and other
reserve officers about working security on race days. Appellant and the other
reserve officers wore their official uniforms, including their badges and guns,
while working security.
Authorities shut down El Herradero in October 2013 and arrested the
racetrack owner, the state trooper in charge of security for the racetrack, the state
trooper’s wife (who allegedly was impersonating a police officer and assisting with
security at the racetrack), and a number of reserve officers who worked security for
the racetrack, including appellant.
Appellant was charged with conducting a horse race without having a
racetrack license from the Texas Racing Commission, when appellant knew or
reasonably should have known that another person was betting on the final
1
A racetrack is not required to be licensed by the Texas Racing Commission if wagering
is not conducted on the outcome of the races. See Tex. Rev. Civ. Stat. Ann. art. 179e, § 6.01.
2
outcome of the race. A jury convicted appellant, and the trial court assessed
punishment at two years’ confinement and a fine of $1,000. The trial court
suspended the sentence and placed appellant on community supervision for two
years; the trial court required appellant to surrender his law enforcement license;
and the trial court ordered appellant to serve 15 days in the Harris County Jail.
Appellant timely appealed.
STANDARDS OF REVIEW
I. Statutory Construction
Statutory construction is a question of law. Harris v. State, 359 S.W.3d 625,
629 (Tex. Crim. App. 2011). In construing a statute, we look first to the statute’s
literal text, and we read words and phrases in context and construe them according
to rules of grammar and usage. Id. We must presume that every word in a statute
has been used for a purpose and that each word, phrase, clause, and sentence
should be given effect if reasonably possible. Id. Where the statute is clear and
unambiguous, the legislature must be understood to mean what it has expressed,
and it is not for the courts to add or subtract from such a statute. Boykin v. State,
818 S.W.2d 782, 785 (Tex. Crim. App. 1991); Uyamadu v. State, 359 S.W.3d 753,
758 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
II. Legal Sufficiency
When reviewing the legal sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt. Temple v. State, 390 S.W.3d
341, 360 (Tex. Crim. App. 2013). In making this review, we consider all evidence
3
in the record, whether it was admissible or inadmissible. Winfrey v. State, 393
S.W.3d 763, 767 (Tex. Crim. App. 2013).
We defer to the jury’s resolution or reconciliation of conflicts in the
evidence, and we draw all reasonable inferences from the evidence in favor of the
verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In
conducting a sufficiency review, we do not engage in a second evaluation of the
weight and credibility of the evidence, but only ensure the jury reached a rational
decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d). Our duty as a reviewing court is to ensure that the evidence
presented actually supports a conclusion that the appellant committed the crime
that was charged. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
ANALYSIS
I. Law of Parties
Appellant was charged with the offense of “racing without a license.” See
Tex. Rev. Civ. Stat. Ann. art. 179e, § 14.16. Section 14.16 provides that a person
commits the offense of racing without a license if the person (1) conducts a horse
or greyhound 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. Id.
§ 14.16(a). A violation of section 14.16 is a third-degree felony. Id. § 14.16(b).
In addition to allowing appellant’s conviction as a primary actor, the jury
charge also included an instruction on the law of parties.2 Under the law of parties,
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,
2
“Regardless of whether it is pled in the charging instrument, liability as a party is an
available legal theory if it is supported by the evidence.” In re State ex rel. Weeks, 391 S.W.3d
117, 124 (Tex. Crim. App. 2013) (orig. proceeding).
4
the person solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2011). As
applied in this case, the jury was charged that appellant could be found guilty if,
with the intent to promote or assist the commission of the offense, appellant
solicited, encouraged, directed, aided, or attempted to aid the racetrack owner or
the state trooper in charge of security for the racetrack to commit the offense.
The jury found appellant guilty and was not required to specify whether it
determined that appellant violated the statute as a primary actor or as a party. See
Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011) (“Where, as is the case
here, the evidence is compelling that an accused is guilty of every constituent
element of the alleged penal offense—either as a principal actor or under some
theory of party liability—but there remains evidentiary play with respect to his
precise role in that offense, we think it would be plainly absurd to require the jury
to acquit the accused unless it can unanimously determine his status as a principal
actor or a party and, if the latter, what his exact party accountability might be.”).
Appellant contends in his first issue that he falls outside the class of
individuals targeted by the statute. Appellant argues that section 14.16 “is
intended to be applied to owners of racing facilities that conduct wagering on the
outcomes of races they conduct without first obtaining a racetrack license from the
Texas Racing Commission,” and that the section “does not apply to Appellant who
was acting within the scope of his job as a security officer.” Appellant discusses
the different types of permits required under the Texas Racing Act and contends
that, although he may have been required to obtain an occupational license from
the Texas Racing Commission, he was not required to obtain a racetrack license.
Appellant’s argument lacks merit because the jury charge allowed
conviction of appellant as a party to the offense. Whether the statute was intended
5
to prosecute persons other than the owner of the racetrack is not relevant to our
analysis; the jury was required to find only that, acting with the intent to promote
or assist the commission of the offense, appellant solicited, encouraged, directed,
aided, or attempted to aid the racetrack owner or the peace officer in charge of
security for the racetrack to commit the offense. Nothing in the language of
section 14.16 of the Texas Racing Act or section 7.02(a) of the Texas Penal Code
prohibits application of the law of parties to the offense of racing without a license.
See generally Tex. Rev. Civ. Stat. Ann. art. 179e, § 14.16; Tex. Penal Code Ann. §
7.02(a)(2); see also In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim.
App. 2013) (orig. proceeding) (“Party liability is as much an element of an offense
as the enumerated elements prescribed in a statute that defines a particular
crime.”). Accordingly, we overrule appellant’s first issue.
II. Legal Sufficiency
Appellant contends in his second issue that legally insufficient evidence
supports his conviction. Although appellant primarily argues that the evidence is
insufficient to show he committed the offense as a primary actor, we liberally
construe appellant’s argument to encompass a challenge to the sufficiency of the
evidence that he committed the offense in any capacity.
Interpretation of the racing-without-a-license statute appears to be an issue
of first impression; this court has not found any other cases dealing with section
14.16 of the Texas Racing Act and the parties have not cited any. There is no
precedent describing what conduct constitutes solicitation, encouragement,
direction, aid, or attempted aid in the context of the offense of conducting a horse
race without a racetrack license. Nevertheless, considering all of the evidence in
the light most favorable to the verdict, we conclude that the evidence is legally
sufficient to support a finding that appellant committed the offense of racing
6
without a license as a party to the offense. Accordingly, we need not address the
sufficiency of the evidence to establish appellant’s guilt as the primary actor. See
Hoang v. State, 263 S.W.3d 18, 19 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d).
When a party is not the primary actor, the State must prove conduct
constituting an offense plus an act by the defendant done with the intent to promote
or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985).
Party participation may be shown by events occurring before, during, and after the
commission of the offense, and may be demonstrated by actions showing an
understanding and common design to do the prohibited act. Salinas v. State, 163
S.W.3d 734, 739-40 (Tex. Crim. App. 2005). Circumstantial evidence may be
used to prove one is a party to an offense. Powell v. State, 194 S.W.3d 503, 506
(Tex. Crim. App. 2006).
Here, the evidence is sufficient to show both a violation of the Texas Racing
Act by the racetrack owner and that appellant, with the intent to promote or assist
in the commission of the offense, solicited, encouraged, directed, aided, or
attempted to aid the owner in committing the offense.
First, we consider the evidence establishing a violation of the Texas Racing
Act.
Testimony at trial established that Reginaldo Mandujano owned El
Herradero. The State put on uncontroverted evidence from various law
enforcement officers that: El Herradero was not licensed by the Texas Racing
Commission; El Herradero had horse races on Saturdays; Mandujano was observed
at El Herradero on a race day; Mandujano paid El Herradero’s employees; hand-to-
hand betting among patrons of the racetrack was open and pervasive; the betting
between patrons was “real obvious;” and “[i]f someone was there on multiple
7
days” it would “be reasonable to believe that they knew betting was going on.” It
is undisputed that Mandujano knew or reasonably should have known that others
were betting on the final or partial outcomes of races. Accordingly, the evidence
supports a finding that Mandujano committed the offense of conducting a horse
race without a racetrack license when he 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, § 14.16.
Second, we consider the evidence establishing that appellant, with the intent
to promote or assist in the commission of the Texas Racing Act violation, solicited,
encouraged, directed, aided, or attempted to aid Mandujano in his commission of
the offense.
Evidence adduced at trial showed that appellant was working security on
five of the eight occasions when undercover agents visited El Herradero.
Appellant wore his full reserve deputy uniform, including his badge and his gun,
on those occasions. Appellant’s duties included checking individuals as they came
into the property to ensure that no outside alcoholic beverages were brought in;
directing people about the racetrack; and generally keeping the peace. Security
officers at the racetrack received $25 per hour in cash for their work and were paid
by Mandujano.
When asked how appellant helped in conducting the races, one officer
testified that appellant and the other security officers provided a “general police
command presence” that established a “secure atmosphere” and “gave a sense of
safety on the property.” Another officer testified that the uniformed security
officers added legitimacy and validity to the racetrack. Moreover, a jury
reasonably could have concluded that appellant’s uniformed presence in a cash-
filled environment facilitated hand-to-hand cash betting, thereby aiding in the
8
creation of an atmosphere for the underlying element of the offense (betting on the
outcome of the races) to take place. These actions, taken together, support a
finding that appellant aided or attempted to aid Mandujano in conducting a horse
race without a racing license where others were betting on the outcome of the race.
The evidence described above is sufficient to establish that appellant aided
or attempted to aid Mandujano in conducting a horse race; without more, however,
this evidence does not establish that appellant did so with the intent to promote or
assist in the commission of the Texas Racing Act violation. There is more here
because evidence established that appellant was aware of and encouraged the
illegal betting at the racetrack.
One undercover officer testified that he told appellant he “was going to go
make some money, meaning that [he] was going to go bet,” before walking away
and engaging in a bet with another individual. Another undercover officer testified
that he spoke with appellant about betting; told appellant that he “wasn’t hardly
winning anything” and that he had “just won a couple hundred dollars;” and stated
that appellant told him he should have bet $500 on the previous race. The
undercover officer testified that he told appellant he was “going to go back and try
to bet some more and see if [he] could win some more money” and offered to
make a bet for appellant, but appellant declined the offer. The officer testified that
appellant did not attempt to dissuade or stop him or anyone else from betting. We
conclude that a reasonable jury could have relied on this evidence to conclude that
(1) appellant was aware of and encouraged hand-to-hand betting; and (2) appellant
thereby acted with the intent to promote or assist in the commission of the Texas
Racing Act violation.
Based on the foregoing, we conclude the evidence is legally sufficient to
support the jury’s verdict that appellant aided or attempted to aid Mandujano’s
9
violation of the Texas Racing Act and did so with the intent to promote or assist
the commission of the offense. The conviction here does not rest on proof of
appellant’s status within an enterprise that merely had criminal potential. Rather,
appellant’s conviction rests on evidence of his actions as a security officer coupled
with evidence that he affirmatively encouraged hand-to-hand betting. Cf. Beier,
687 S.W.2d at 4 (rejecting notion that conviction could be based upon proof of
appellant’s status as the manager of an enterprise and showing that manager knew
that the enterprise had criminal potential, because to do so would be to convict
based upon the manager’s status rather than his conduct). Accordingly, we
overrule appellant’s second issue.
CONCLUSION
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Publish — Tex. R. App. P. 47.2(b).
10