Affirmed and Memorandum Opinion filed July 27 , 2023

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00275

- CR

ISRAEL TORRES , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 230th District Court

Harris County, Texas Trial Court Cause No. 1 619255

MEMORANDUM OPINION
Appellant Israel Torres raises three issues challenging his conviction for the aggravated r obbery of complainant Alexis Sanchez 1 , resulting in a twelve

- year prison sentence. Appellant complains that the trial court erroneously admitted evidence over his objections that it was irrelevant and that its prejudicial effect outweighed its probative value. Appellant further asserts that the evidence at trial

1 Complainant ’ s full name is Alexis San chez

- Torres, but the indictmen t refers to him as Alexis Sanch ez.2

was legally insufficient to prove that he was one of the three assailants. We affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND Appellant was arrested on January 22, 2019. He was charged with aggravated robbery with a d eadly weapon in connection with events that occurred three days prior to his arrest. He pleaded “not guilty” to the offe nse and his case

was tried before a jury.
At trial, c omplainant and several other witnesses identified appellant and testified to appellant ’ s participation in the robbery and that appellant and his brother had argued with complainant the day before the ro bber y occurr ed. Complainant testified at trial that on the night of the offense he w as sitting at home “ about a roll up a blunt ”

— a marijuana cigarette

— w ith one of his neighbors
when , as he puts it, “ my door slams open, and I look and see people in my door w ay with guns and they ’ re l ike, man, give me all your stuff .” He recall ed three people standing in his door way, wearing black ski masks, and pointing guns
at him . When asked about how this sudden appearance of uninvited guests made
him feel and he explain e d:
Q. Okay. At that poin t how do you feel? A. I was, like, shocked. I was like: Hey, who ’ s this? Who came inside my house like this? At first I thought it was my friends just messing with me. Q. Okay. And then what was your afterthought? A. Well, at fir s t whenever I thought it wa s my friends, I just looked away. And I guess since they thought I was joking, lik e I looked at them as a joke. They ’ re like: Man, you think we ’ re playing with you

or what? And that ’ s when I looked at them again and I was like, I don ’ t know these people. T hey ’ re trying to get me. Q. Okay. You mentioned earlier that they made a statement. What did they say?3

A. “ Give me all your stuff. Give me all your shit

. ” Q. Okay. And at that point, did you feel threatened? A. Yeah, they were re a lly here to get me. Q. Did you feel that they were trying to take away your stuff? A. Yeah. Q. And which stuff

-- A. More than that, they probably would ’ ve done more than that. But the threat of violence was not unforeseeable to the complainant and
safe ty measures had been taken

. Accor ding to the complainant there were rumors
that someone want ed to rob him, which he reasoned owed to the fact that he “ had a lot of jewelry and stuff like that

. ” He explained, moreover, “I live in a bad neighborhood.” Plus , h e was in the business of selli ng drugs out of his residence.
C omplainant had taken defensive measures such as acquiring night vision cameras
which he installed outside his home , a semiautomatic handgun which w as in his pocket, and an AK

- 47 assault rif le w hich was under the table where he was rol ling
the blunt

. Q. Okay. What is your reaction once you see people in masks and guns? A. I was, like, all right, I ’ m going to give you all my stuff. And then I just acted like I was getting up. When I start get tin g up, I just reached for my gun. Q. Which gun are we talking about? A. My .10 millimeter Glock that I had in my pocket. Q. And show us how you ’ re sitting, just sitting like this

-- A. Yeah, I was just like this, just sitting normal. Q. Okay. Where are y our hands located? A. Well, I ’ m getting up. I ’ m like

-- you know, I decided to get up slowly and I ’ m reaching down and I just grab

-- I had the handle sticking out of my pocket.4

Q. Okay. Once you reach out to it, what do you do? A. I ju st take it out and l ook down at the table and I start shooting. C omplainant further explained that as he began firing rounds from his handgun
, the assailants r a n from his doorway . Complainant continued to fire as
the assailants ran

. After he fired the only four rounds in hi s h andgun he began shooting the AK

- 47 . He recalled that he heard return gunfire a nd he continued
outside behind his fence

- line firing the AK

- 47

. H e believes he ha d shot two of the
assaila nts who had fallen to the ground when he depleted his first magazin e i n the
AK

- 47. He returned to his house to grab another clip. He recall ed seeing the
second assailant he had shot crawling down the street to the right. Complainant
testified that wh en he ran back out to pursue his assailants a neighbor prompted
him t o s ee that someone was dea d, and has he put it, “ I snapped out of it. I looked
back and I ’ m like: Damn, this guy ’ s really dead. ” After the police and ambulance arrived, he watched the EM S find the individual crawling in the direction to the right wh o m he ide ntified as appellant. The complainant further explained that he knew appellant and had been in an argument with appellant and his brother the previous day. A neighb or on Sherman Stree t , Roger P erez, testified about the events he
saw occur after hearin g t he gunshots when he wal ked out on the street. He explained that he wit nessed a man weari ng black crawling on the sidewa lk , and that he saw him remove gloves and discard the gloves and a ha ndgun be fore the

po lice arrived. P erez explained that he direct ed the police to the man a nd the
discarded items

. Appellant also testified at trial

. He explained that he had told the police that he had gone to purchase weed from the complainant and that he and complain ant were being robbed.5

Q. And you told them at tha t time that you were walking with your friend. What happened to the friend? A. Not walking, but the person I was purchasing weed from, I was concerned about him. I was telling him that I ’ d been robbed and the person, the complainant, [ ] , was being rob be d a s well. As we all know, three men was coming out of there, ski masked up. So I never told them I was walking, but I ’ m really trying to tell them check on my friend, [complainant]

. He ’ s not like just a friend, but he ’ s a familiar

-- he sells me mariju ana

. Q . So when he was robbed, what

-- A. Three men

-- three masked men

-- Q. So you mentioned here that you were robbed

-- A. Right. Q.

-- along with your friend? Appellant contended th at he was caught in the gunfire, and was shot on the ground , but acknowle dge d that gloves were found in the vicinity
, and admitted that
one of the men who had been at the scene found dead was his brother . Appellant
ad mit ted that he w as found w earing black, white

- strip ed
, ad idas at tire

. When
asked about the surveillance video, ap pel lant testified as follows:
Q. So you ’ ve seen this surveillance video. Right? A. Yes, ma ’ am. Q. Okay. And while watching it, did you observ e the third individual on that video? A. Yes, ma ’ am. Q. What kin d of outfit is he wearing? A. He was wearing

-- wh at I see now, black. He was wearing black. Q. Did you see those stripes on the side? A. No, ma ’ am. I ’ m having stripes. Now, you ’ re pinning me and you ’ re going to confuse the jury. Q. Okay. I ’ m sorry. Yes or no, that ’ s the question. A. No, ma ’ am, I had s tri pes. You never seen stripes on the video.6

Q. So I ’ m talking about the surveillance video

. A. Right. Q. On the surveillance video, the third in dividual had stripes on the side of his shirt? A. You never show ed the stripes. Q. And that day you were also w ear ing Adidas shirt with stripes on the side? A. Can we bring the video back? Q. Did you also wear pants with stripes on the side? A. Correct. At trial, the State showed footage from the above

- referenced surve illance
cameras outside complainant ’ s hous e, fo ota ge from a police body

- worn camera, and a number of photographs from the crime scene, all of which were admitted into evidence and presented to the ju ry. Color video f ootage from the body

- worn camera shows a ppellant on the sidewalk wearing a black, white

- st riped tracksuit,
and monochrom atic video footage from complaint ’ s night

- vision surveil lance

camera s show one of the assailants wearing an identical ly striped tracksuit. Appellant ’ s objections to the admittance of State ’ s Exhibits 107, 108, and
113 were ov erruled, and the evidence was briefly presented to the jury. All three
exhibits were crime

- scene photographs depicting bullet holes in nearby buildings. 2
The jury r eturned a guilty verdict fo r aggravated robbery with a deadl y
weapon and assess ed a sente nc e of twelve (12) years ’ confinement. The trial court entered judgment in accordance with the verdict and punishment assessment. This

a ppeal followed.

II. I SSUES AND A NALYSIS Appellant complai ns that (1) the trial court erred in admitting irrele vant

2 Exhibits 107 and 108 show one building (white); Ex hibit 113 shows another (red).7

evide nc e, (2) the trial court erred in admitting evidence whose prejudicial effe ct outweighed its probative value, and (3) the record contain s insufficient evidence to support his conviction. Th oug h he has briefed it last, we first address appellant ’ s legal su ff icien cy compl aint because , if meritorious, it would afford appellant the greatest relief.

A. Is the evidence sufficient to support app ellant ’ s conviction for aggravated robbery?

I n his thi rd issue, appellant complains that the record contain s insuffic ie nt evidence t o support his aggravated robbery conviction. In evaluating a challenge to the sufficiency of the evidence supporting a cr iminal conviction, we view the
evidence in the light most favorable to the verdict. Wesbrook v. State , 29 S.W.3d 103, 11 1 (Tex. Crim. App. 2000). The issu e on appeal is not whether we, as a court, believe the State ’ s evidence or believe that appellant ’ s ev idence outweighs
the State ’ s evidence

. Wicker v. State , 6 67 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irratio nal or unsupported by proof beyond a reasonable doubt

. Matson v. State , 819 S.W.2d 839, 846 (Tex.
Crim . App. 1991). The jury “is the sol e judge of the credibil ity of the witnesses and of the strength of the evidence .” Fuen te s v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the
witnesses ’ tes timony. Sharp v. State , 70 7 S.W.2d 611, 614 (Tex. Crim. A pp. 1986). When faced with conflicting evidence, we presume the j ury resolved
conflicts in fa vor of the prevailing party. Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any r ational trier of fact co uld have found the
essential elem ents of the crime beyond a reasonable doubt, we must affirm.
Mc Du ff v. State , 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
We measure sufficiency to support a conviction by comparing the evidence8

pres ented at trial to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v . State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge reflects the governing law, the indictment, the State ’ s burden of proof and theories of liability, an d an adequate description of the offense for the particular cas e. Id

. “A person commits [rob bery] if, in the course of committing theft . . . and
with the intent to obtain or maintain control of the property, he . . . threatens or places another in fear o f imminent bodily injury or death.” Tex. Penal Code § 29.02(a) & (a)(2). A robbery is aggravate d if a person “commits robbery as defined in Section 29.02 and he . . . uses or exhibits a deadly weapon .” Tex. Penal Code § 29.03(a) & (a)(2). “A person commits [theft] if he unlawfully appropriates property
with intent to de prive the owner of property.” Te x. Penal Code § 31.03(a). The State may prove a defendant ’ s identity and criminal culpability by eithe r direct or circumst antial evidence, coupled with all rea sonable inferences from that
evidence. Fang v. State , 544 S.W.3 d 923, 928 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) ; Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) . A
lack of direc t evidence is not d ispositive of the issue of guilt. Id. Circumstantial evidence is as probative as direct evidence in e st ablishing guilt, and circumstantial
evidence alone can suffice

. Id

. Several witnesses , including complai nant , identified appellant as one of the
assail ants. The complainant testified , with th e support of his surveillance footage,
that three masked men ap pe ared at his door with guns threatening him and demanding his “ stuff

”

. He identified appellant as o ne of these men. See Walker v.
State , 1 80 S.W.3d 829 , 832

– 33 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) (“A conviction may be based on the testimony of o nly one eyewitness.”)

. The
monoch romatic video footage sho ws that the third man was wearing a stripped9

adidas tracksuit and that this in di v idual was ca rrying a handgun and pointing it
toward complain ant through the doorway. Complainant testified that he w as afraid for his life, and his subsequent actions

— firing upon the assailants

— were based on
that fear

. Footage from the surveillance camer as outside of complainant ’ s house
showed one of the assail ants wearing a tracksuit identical to the one worn by

ap pe llant as shown in body

- worn camera footage recorded by a responding officer. A firearm and gloves matching those used in the robbery were f ound near

a ppellant ’ s unconscious body , and Roger Perez testified that he saw appellant discarding these items bef or e the police arrived. See Guevara v. State , 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) ( holding that “[a] ttempts to conceal incriminating
evi dence

. . . are probative of wrongfu l conduct and are also circumstances of guilt.”)
Appellant argues t hat the State f ailed to prove that appellant was one of the assailants because the State failed to provide f ingerprints
, DNA , and g unshot residue (GSR) wip e test of appellant ’ s hands. But th e State was not required to make such a showing; A ppellant has not cited autho ri ty for the propositio n that proof of any or all of the above factors were necessary to reach the threshold of proof to identify defendant as an assai lant. Our law relating to the sufficiency of evidence necessary to identify those criminally charged is d em anding of certainty

w ithout limiting the state to specific forms or types of evidence. See e.g., Pena v.
State , 441 S.W.3d 635, 641 (Tex. Ap p.

— Hous ton [1st Dist.] 2014, pet.
ref ’ d)(noting that DNA evidence was not required); see also Williams v. State , 1 96 S.W.3d 365, 369 (Tex . App.

— Houston [1st Dist.] 2006, pet. ref ’ d)(affirming robbery conviction on sufficiency challenge where there was evid ence available to support jury ’ s f

inding, but no DNA evidence, no fingerprint evidence; no other10

witnesses (beside t he complainant) to th e robbery; no line

- up performed; and where it dark at the time of the robbery, likely limiting visibility of complainan t);
see also Melgar v. State , 593 S.W.3d 913, 921 (Tex. App.

— Houston [14th Dist.] 2020, pet. granted) (concluding po sitive sufficiency fin ding supported by inferences built on fact established that no other person could have committed the murder); see also Harmon v. State , 167 S.W.3d 610, 6 14 (Tex. App.

-- Houston [14th Dist.] 2005, pet. ref ’ d) (“A rational jury could h av e found appellant guilt y of aggravated robbery without DNA evidence, fingerprint evidence, or evidence of the gun or cash Newby gave to appel l ant”).
Under the applicable standa rd of review, a rational trier of fact could have
found b eyond a reasonable do ub t that a ppellant intentionally threaten ed the complainant with fear of imminent bodily injury or death , by using and exhibiting a deadly weap o n, in the course of committing the ft and with intent to obtain or maintain control of the property

. See Johnson v . State , 509 S.W .3d at 324 ; Walker
v. State , 180 S.W.3d at 832

– 33; Neelys v. State , 374 S.W.3d 553, 559; Guevara v.
State , 152 S.W.3d at 50

. Finding no merit in appellant ’ s ch allenge to the sufficiency of the e vidence supporting his conviction for aggra va ted robbery, w e overrule appellant ’ s third issue

. B. Did the trial cour t rever sibly err in admitting State ’ s Exhibits 107, 108, and 113 over a ppellant ’ s objections?

In his firs t two issues, appellant complains that the trial court erred because
it admit t ed exhibits

— three photograph s of bullet ho les i n houses located at the

scene

— he contends were not relevant and because the probative value of t h e exhibits was substantially outwe ighed by a danger of prejudice. In a hearing outside of the jury ’ s presence, du ring the State ’ s case

- in

- chief, the prosecutor notified the trial court that the prosecutor was “planning to offer11

State ’ s Exh ibits 107, 108[
, ] and 113,” which are photographs of “bullet holes in the houses in the path of where the shooting was occurring
, the same path where [Appellant] was found with a weapon.” Appellant objected to the exhibits on the
bases of T exas Rules of Evidence 401, 402
, and 403 , and the trial court over ruled the objections

. We re view the trial court ’ s decision to admit or exclude e vidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice
, under an abuse of discretion

stan dard. Gonzalez v. State , 54 4 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial

c ou rt abuses its discretion when its decision lies outside the zone of reasonable disagreement. Martinez v. State , 327 S.W.3d 727, 736 (Tex. C rim . App. 2010). We may not substitut e our own decision for that of the trial court. Moses v. State , 105
S.W.3d 622
, 627 (Tex. Crim. App. 2003). We uphold the trial court ’ s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Seidul e v. State , 622 S.W.3d 480, 489 (Tex. App.

— Houston [14th Dist.] 2021, no pet.)

. 1 . Were State ’

s Exhibits 107, 108, and 113 relevant?

While relevant evidence is admissible unless otherwise indicated by United
States or Texa s law, “irrelevant evide nce is not admissible.” Tex. R. Evid. 404. Relevant evidence is evidence which has any t en dency to make the existence of any fact of consequence more or less probable than it would be without the
evidence. Tex. R. Evid. 401. E videnc e does not need to prove or disprove a particular fact by itself to be relevant; it is sufficient if the eviden c e provides a small nudge toward proving or disproving a fact of consequence. Gonzalez v. State
, 544 S.W.3d at 370.
In criminal cases, cri me scen e photographs are almost always relevant12

because they ‘ depict the reality of [the] offense ’ and may show the ma n ne r in which it occurred.” Bradshaw v. State , No. 01

- 19

- 00611

- CR, 2020 WL 7062589, at *6 (Tex. App.

— Houston [1st Dist.] Dec. 3, 2020) (qu oting C hamberlain v.
State , 998 S.W.2d 230, 237 (Tex. Crim. App. 1999); George v. State , 446 S.W.3d 490, 505 (Tex. App

. — H ouston [1st Dist.] 2014) (quoting Chamberlain , 998 S.W.2d at 237).

Because State ’ s Exhibits 107, 108, and 113 are crime scene photograp hs that depict the scene as dis covered by responding officers, they are relevant. The

e xhibits are relevant for the rea so ns argued by t he State

— they assist the prosecution establish that complainant was deliberately shooting at a ppellant
because he was one of sev eral robbers whom he cha sed out of his home and fired at as they ran, separate d, and began to flee in opposite d ir ections, rather than merely an innocent bystander “caught in the gunfire” as he casually approached
Alexis ’ s house from the side to buy mariju ana, like a ppellant clai med. S ee Antwine v. State , 486 S.W.2d 578, 580 (Tex. Crim. App. 1972) (finding photogra ph s of bullet holes in liquor store building where crime occurred and locations of other buildings admissible to aid the jury in better u ndersta nding the
witnesses ’ tes timony and to help show the overall pic ture of the crime)

. T he fact
that the cause of th e bullet holes and whether they were created on the night of the incident are points of disagreement between appellant and the State is, in this case, inconsequential t o the relevance of the photog raphs . Appellant complains that the
exhibits were not rel ev an t because no supplementary evidence showed that the bullet holes were related to the incident; however, defendant similarly introduced
no evid ence at trial that they were not related. Therefore, we overrule appellant ’ s first issue

. 2 . Did the prejudicial e

ffect of State ’

s Exhibits 107, 108, and 113 outweigh their probative value?13

The court may exclude relevant evidence if the probative va lue of the
evidence is substant ially outweighed by a danger of unfair prejudice. Tex. R. Evid. 403. Generally, “a prope r Rule 403 analysis by eith er the trial court or a reviewing court includes, but is not limited to, the following factors: (1) the probat ive val ue of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time n ee ded to develop the eviden ce; (4) the proponent ’ s need for the evidence.” Erazo v. State , 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

F urtherm ore, the court ’ s determi nation regarding the prejudicial effect of photographs, specifically, should include: th e number of photographs, the size of the photographs, whether they are in color or black , the detail shown in the photographs, and whe the r they are gruesome. George v. State , 446 S.W.3d 490,
505

- 6 (Tex. App.

— Houston [1st Dist.] 2014, pet. ref ’ d) (citing Re es e v. State , 33 S.S.3d 238, 241 (Tex. Crim. App. 2000)). 3
Appellant, using identical reasoning to his relevance objection, c omplains
tha t a lack of supplemen tary evidence as to the cause of the bullet holes makes
admission of State ’ s Exhibits 107, 108, an d 113 more prejudicial than probative. We presume that appellant wishes to argue that even if the evidence is relevant, its

p robative val ue is so minimal that it may as well not be. However, a lack of probative value alone does not justify overruling the t ri al court ’ s decision

— the probative value of the evidence must also be substantially outweighed by the danger of unfair preju dice.

The ph otographs at issue, b y themselves, have almost no potential for

3 There are several other fa ctors that the court shou ld consider, but are not relevant to this case, includi ng certain details about photo graphs that show dead bodies. S ee George v. State, 446 S.W.3d 490, 505

- 06 (Tex. App.

— Ho uston [1st Dist.] 2014).14

prejudicial effect. There are only three photographs, n on e of which show any gruesome content. In fact, appellant and appellee both agree that if the bullet holes were, as appellee alleges, cr eated at the time of the incident, they were created by a firearm used by someone other than appellant . Therefore, the po tential to impress the jury in any way, irrational or otherwise, is negligible. Even assuming, without holding, that th e p hotogr aphs have no probative v alue whatsoever, that value is not outweighed so substantially by its prejudicial effect that we c an say the trial court
abused its discretion. W e overrule appellant ’ s second issue

. 3. Even if the trial court erroneously admi tted evidence, such an error was harmless

. Even if, as appellant complains , State ’ s Exhib its 107, 108, and 113 were
irrelevant o r unfa irly prejudic al , such an error was harmless. The Texas Rules of Appellate Procedure states that for non

- constitutional err ors, we must disregard any error that does not affect the appellant ’ s s ubstantial rights . Tex. R. App. P. 44.2(b). This means t hat an err or is reversible only when it has a substantial and injurious effect on the jury ’ s verdict. Gonzalez v. State , 544 S.W .3d 363, 373 (Tex. Crim. App. 2018) . If an examinatio n of the record a s a whole shows that the error
did not influence the jury, or had only a slight effect, the conviction should be
affirmed. Id

. In determining whether an error affecte d an appellant ’ s substantial rights, the court should consider: “(1) the character of the alleged error and how it might be

cons idered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasi zed the complaine d of error.” Id

. We have held that even gruesome or especially pr ovocative photographs may be harmless if the remaining evidence supports the verdict. See , e.g. , Rol le v. State
,15

367 S.W.3d 746, 753

- 56 (Tex. App.

— Houston [14th Dist.] 2012, pet. ref ’ d) (hold ing that a color autopsy photo of the v ictim ’ s un born child was e rroneously admitted but that the error was ultimately harmless).

An examination of the record in thi s case shows that even if the trial court erred in admitting State ’ s Exhib its 107, 108, and 113, the error had no more than a slig ht effect on the jury ’ s de termination. The State did not emphasize the photographs beyond introducing them to the jury, the re maining evidence included recorded footage of the defendant that was much more indicative o f his guilt, and the supposed error was not unfai rly biased again st appellant . Furthermore, the remaining evidence was sufficient to support the jury ’ s verdict. Therefore, even if the trial court had erroneously admitted the evidence a t issue, we would still overrule appellant ’ s first and s econd issu es

. III. C ONCLUSION

Because the evidence at trial was legally sufficient to support the jury ’ s verdict, we affirm appellant ’ s aggravated robbery convi ction. State ’ s Exhibits 107, 108, and 1 13 were relevant and not unfairly prejudicial; therefore , we affirm the judgment of th e trial court

.

/s/ Randy Wilson Justice

Panel consis ts of Justic es Wise
, Zimmerer , an d Wil son. Do no t Publish

— T EX

. R. A PP

. P. 47.2(b).