Affirmed and Memorandum Opinion filed July 16, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-00179-CR

JOHNATHAN GRAHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1549812

MEMORANDUM OPINION

Appellant Johnathan Graham appeals his conviction for the first-degree felony 

offense of aggravated robbery with a deadly weapon arguing (1) the trial court 

abused its discretion when it denied his motion for a mistrial; and (2) the evidence 

is legally insufficient to support his conviction. We affirm.

BACKGROUND

Appellant was indicted for aggravated robbery with a deadly weapon in May 
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2017, and a three-day jury trial was held on February 27, 2018. At trial, Complainant 

testified she had financial difficulties and was about to be evicted from her 

apartment. She testified she met with several friends to borrow money on April 24, 

2017. She also stopped at the bank and withdrew money from her daughter’s 

account. Complainant had about $1,400 in her car but needed more money, so she 

waited for another friend to call her with information about a place where she could 

get another loan. After her friend called, Complainant drove to a shopping center

and parked her car. She sat in her car with the windows down and called the number 

her friend gave her to inquire about getting a loan. 

While she was on the phone, a man approached the passenger side of her car 

and told her to get out of her car. She turned around and looked at the man. The 

man held a gun “to the side of his face” and he covered a part of his face with his tshirt. The gun was not obstructing his face but Complainant focused on his eyes; 

“there was something [i]n his eyes that ma[d]e [her] panic.” The man instructed her 

to drop her phone and not look at him but she “couldn’t stop staring.” He again 

instructed her to get out her car. When Complainant exited the car, the man took her 

car and drove off; all her money was still in the car.

A passerby drove Complainant to a nearby gas station to call the police. 

Officer Jackson arrived at the gas station, and Complainant was still very distraught. 

She was not able to describe what her robber looked like. She only was able to tell 

Officer Jackson that the robber was a black “chubby” male who wore a white longsleeve t-shirt.

Five days later, Officer D’Eugenio was on routine patrol and observed

Complainant’s car speeding in front of him. He “ran the license plate” on the 

computer in his police car and the “computer returned a caution stolen hit on the 

vehicle.” Dispatch also informed Officer D’Eugenio that the car had been stolen 
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during an aggravated robbery. Officer D’Eugenio stopped the car, which was driven 

by Appellant. Appellant initially resisted Officer D’Eugenio’s commands but then 

complied. Appellant was arrested at the scene and the car and a backpack inside the 

car were towed to an impound lot.

Police prepared a photo array containing Appellant’s photo and photos from 

five other individuals. Officer Gamble, who was assigned to investigate the 

aggravated robbery, went to Complainant’s residence to show her the photo array on 

May 3, 2017. Officer Gamble testified Complainant identified Appellant as her 

robber in the photo array. He stated: “Upon opening up the photo array, she

immediately started crying, she started shaking. I was generally concerned. . . . She 

started crying and started shaking and she started just hitting the picture.”

Complainant also identified Appellant at trial as the man who robbed her after 

Appellant took off his glasses.

After hearing the evidence presented, the jury found Appellant guilty as 

charged and sentenced him to 15 years’ confinement. Appellant filed a timely 

appeal.

ANALYSIS

I. Sufficiency of the Evidence

Appellant argues in his second issue that the “evidence of identity is legally 

insufficient to sustain the verdict because no rational trier of fact could have found 

that appellant was the perpetrator of the aggravated robbery beyond a reasonable 

doubt given the complainant’s questionable identification of appellant and 

appellant’s alibi.”1

 

 1 We first address Appellant’s second issue because it challenges the sufficiency of the 
4 

When reviewing the legal sufficiency of the evidence, we consider the 

combined and cumulative force of all admitted evidence and any reasonable 

inferences therefrom in the light most favorable to the verdict to determine whether 

a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 

(Tex. Crim. App. 2017). The jury is the sole judge of credibility and weight to be 

attached to the testimony of witnesses. Temple v. State, 390 S.W.3d 341, 360 (Tex. 

Crim. App. 2013). We defer to the jury’s responsibility to fairly resolve or reconcile 

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). The jury may credit the witnesses it chooses to, disbelieve 

any or all of the evidence or testimony proffered, and weigh the evidence as it sees 

fit. Id. 

The jury may not draw conclusions based on speculation but may draw 

multiple reasonable inferences from facts as long as each is supported by the 

evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 

2007). An inference is a conclusion reached by considering other facts and deducing 

a logical consequence from them, while speculation is mere theorizing or guessing 

about the possible meaning of facts and evidence presented. Winfrey v. State, 393 

S.W.3d 763, 771 (Tex. Crim. App. 2013).

As applicable here, a person commits aggravated robbery if he commits 

 

evidence and seeks rendition of a judgment of acquittal. 
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robbery as defined in Section 29.02 and he uses or exhibits a deadly weapon. See

Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2019). A firearm is a deadly weapon. 

Id. § 1.07(a)(17) (Vernon Supp. 2018). A person commits robbery if, in the course 

of committing theft as defined in Chapter 31 and with intent to obtain or maintain 

control of the property, he (1) intentionally, knowingly, or recklessly causes bodily 

injury to another; or (2) intentionally or knowingly threatens or places another in 

fear of imminent bodily injury or death. Id. § 29.02(a) (Vernon 2019). A person 

commits theft as defined in Chapter 31 when he unlawfully appropriates property 

with the intent to deprive the owner of the property. Id. § 31.03(a) (Vernon 2019). 

Appellant contends the evidence is legally insufficient to support a finding he 

robbed Complainant because her identification of him was “questionable” and he

had an alibi. In that regard, Appellant claims that Complainant told Officer Jackson 

she did not see her robber but then at trial “contradicted herself by stating that she 

did look at the perpetrator, but his face was covered.” 

Although Officer Jackson testified that Complainant told him “she was 

frightened to look up at [Appellant]” and “she didn’t look at his face,” Complainant 

at trial denied making such statements to Officer Jackson. Instead, Complainant 

testified she only told Officer Jackson “that I couldn’t describe him. That’s all I told 

him, that I couldn’t — because he wanted me to tell him. I said I cannot describe 

[him].” In fact, Complainant testified she “couldn’t stop staring” at Appellant even 

though Appellant told her not to look at him. Complainant testified she focused on 

the robber’s eyes because he had covered his mouth and the tip of his nose with the 

shirt he wore. She even demonstrated for the jury how much of Appellant’s face 

was covered. 

Additionally, Complainant identified Appellant as her robber without 

hesitation only a few days after the robbery. She looked at a photo array and 
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immediately pointed to Appellant’s photo. She testified she started crying, could 

not control herself, and “everything came back to me.” Complainant testified she 

was 100 percent sure the man she picked in the photo array was her robber. Officer 

Gamble confirmed that Complainant immediately identified Appellant as her robber 

in the photo array. He testified that, “[u]pon opening up the photo array, she

immediately started crying . . . and started shaking and she started just hitting the 

picture.”

Complainant also identified Appellant as her robber at trial. Although she 

could not initially identify Appellant because he was wearing glasses in court, she 

positively identified him when he took off his glasses. Complainant testified that 

Appellant did not wear glasses when he robbed her.

In addition to Complainant’s in-court and out-of-court identification of 

Appellant, evidence showed Appellant was driving Complainant’s car when he was

stopped by Officer D’Eugenio just a few days after the robbery.

Complainant’s testimony alone is sufficient to support the jury’s finding that 

Appellant was guilty of aggravated robbery. See Aguilar v. State, 468 S.W.2d 75, 

77 (Tex. Crim. App. 1971) (stating “the testimony of the eye witness alone was 

sufficient to support the jury’s verdict” and upholding conviction for assault with 

intent to murder even though only one witness saw defendant with gun); Jackson v. 

State, 530 S.W.3d 738, 742 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The 

testimony of a single eyewitness can be enough to support a conviction.”); Davis v. 

State, 177 S.W.3d 355, 358-59 (Tex. App.—Houston [1st Dist.] 2005, no pet.) 

(affirming conviction for aggravated robbery even though central issue involved 

credibility of single witness); see also Jones v. State, 234 S.W.3d 151, 156-57 (Tex. 

App.—San Antonio 2007, no pet.) (affirming conviction for aggravated robbery 

even though only one witness “identified [defendant] without hesitation from a six-
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person photo array and also identified him at trial . . . [and] testified that despite the 

face covering worn by the gunman, she could still see his features.”). Further, the 

jury as the sole factfinder determines how much weight and credibility to afford 

testimonial evidence. Davis, 177 S.W.3d at 359; see also Young, 358 S.W.3d at 801.

Appellant also contends the “evidence of identity is insufficient” because he 

had an alibi. At trial, Appellant’s close friend, Bradley Taylor, testified that 

Appellant could not have robbed Complainant because Appellant worked for Taylor 

that day as a helper and rode with him in his truck to Ennis, Texas. The defense 

introduced a copy of Taylor’s driver’s log for April 24, 2017, which showed that 

Taylor drove to Ennis. The driver’s log did not mention Appellant anywhere; and 

the space for the “Co-Driver’s Name” was blank.

Despite Appellant’s proffered alibi, the jury as the sole factfinder may credit 

the witnesses it chooses to, disbelieve any or all of the evidence or testimony 

proffered, and weigh the evidence as it sees fit. Young, 358 S.W.3d at 801. We also 

defer to the jury’s responsibility to fairly resolve or reconcile conflicts in the 

evidence. Isassi, 330 S.W.3d at 638. Thus, viewing all of the evidence in the light 

most favorable to the verdict, we conclude that a jury, as the sole judge of the 

credibility of the witnesses, reasonably could have found the evidence was legally 

sufficient to establish beyond a reasonable doubt that Appellant was the person who 

committed aggravated robbery. See Johnson, 509 S.W.3d at 322; Temple, 390 

S.W.3d at 360. 

Accordingly, we overrule Appellant’s second issue.

II. Mistrial Ruling

Appellant challenges in his first issue the trial court’s denial of his motion for 

mistrial following Officer D’Eugenio’s reference during his testimony to 
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Appellant’s “Texas offenders card” because “it informed the jury that appellant had 

prior criminal history.”

We review the denial of a motion for mistrial for an abuse of discretion. 

Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Smith v. State, 491 

S.W.3d 864, 872 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). A trial court 

does not abuse its discretion unless its decision falls outside the zone of reasonable 

disagreement. Archie, 221 S.W.3d at 699; Smith, 491 S.W.3d at 872. 

A mistrial is a device used to halt trial proceedings when error is so prejudicial 

that expenditure of further time and expense would be wasteful and futile. Young v. 

State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d 547, 

567 (Tex. Crim. App. 1999). A trial court may properly exercise its discretion to 

declare a mistrial if an impartial verdict cannot be reached, or if a verdict of 

conviction could be reached but would have to be reversed on appeal due to an 

obvious procedural error. Ladd, 3 S.W.3d at 567. “Only in extreme circumstances, 

where the prejudice is incurable, will a mistrial be required.” Hawkins v. State, 135 

S.W.3d 72, 77 (Tex. Crim. App. 2004). The determination of whether an error 

necessitates a mistrial must be made by examining the facts of each case. Ladd, 3 

S.W.3d at 567.

During direct examination, Officer D’Eugenio was asked how he identified 

Appellant after he stopped him driving Complainant’s car. Officer D’Eugenio

testified as follows:

[THE STATE:] Did you, at any point, speak with the person who was 

driving the vehicle?

[OFFICER D’EUGENIO:] Yes.

[THE STATE:] Did you identify that person?

[OFFICER D’EUGENIO:] Yes, sir, I did.
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[THE STATE:] What was this person’s name?

[OFFICER D’EUGENIO:] Johnathan Graham.

[THE STATE:] So, how did you identify him?

[OFFICER D’EUGENIO:] I believe it was through a Texas offenders

card or his driver’s license.

[DEFENSE COUNSEL]: Objection, Your Honor. Prejudicial.

* * * 

[DEFENSE COUNSEL]: Your Honor, this officer has clearly said in 

front of the jury that my client has a criminal history. We are objecting 

to that. We’re asking for a mistrial. He has now made it known to this 

jury through the State’s questioning that my client has a criminal 

history. He could have just said “ID card.” 

[THE STATE]: He was trying to answer the question, Your Honor. It 

was unintentional. You can ask the jury to disregard.

[THE STATE]: Specifically, also, he didn’t say “criminal history,” he 

said “offender card”; and whether the jury would understand that, it’s 

an additional leap they would have to make.

THE COURT: I’m going to sustain your objection. Do you have any 

other requests?

[DEFENSE COUNSEL]: I’d ask that you ask them to disregard, and I 

would ask that a mistrial be granted.

THE COURT: All right. I’ll instruct the jury to disregard. I’ll deny 

your motion for a mistrial.

* * * 

THE COURT: All right. Ladies and gentlemen, I’m going to instruct 

you to disregard the last answer from the officer.

Unless clearly calculated to inflame the minds of the jury or of such damning 

character as to make it impossible to remove the harmful impression from the jurors’ 

minds, a witness’s reference to a defendant’s criminal history or previous 

incarceration, standing alone, generally is cured by a prompt instruction to disregard. 

See Ladd, 3 S.W.3d at 571 (instruction to disregard cured witness’s improper 

reference to defendant’s multiple juvenile arrests); Kemp v. State, 846 S.W.2d 289, 
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308 (Tex. Crim. App. 1992) (“We find the uninvited and unembellished reference 

to appellant’s prior incarceration—although inadmissible—was not so inflammatory 

as to undermine the efficacy of the trial court’s instruction to disregard.”); Nobles v. 

State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (witness’s statement that 

defendant “didn’t want to go back to prison” cured by prompt instruction to 

disregard); Gardner v. State, 730 S.W.2d 675, 696-97 (Tex. Crim. App. 1987) 

(witness’s statement that “[defendant] told me that even when he was in the 

penitentiary, that he had stomach problems” was cured by trial court’s instruction to 

disregard); Smith, 491 S.W.3d at 872-73 (complainant’s statement that defendant 

stayed at her house “when he got out of jail that last time that he had went” was a 

statement that is “typically cured by an instruction to disregard”); Jackson v. State, 

287 S.W.3d 346, 354 (Tex. App.—Houston [14th Dist.] 2009, no pet.) 

(complainant’s two references to appellant’s previous incarceration were cured by 

instruction to disregard). “[O]nly in the most egregious cases when there is an 

‘extremely inflammatory statement’ is an instruction to disregard . . . considered an 

insufficient response by the trial court.” Williams v. State, 417 S.W.3d 162, 176 

(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citations omitted).

This case does not involve circumstances under which the alleged harmful 

impression that Appellant had a prior criminal history could not be removed from 

the jurors’ minds. Nothing in the record indicates that Officer D’Eugenio’s 

reference to Appellant’s Texas offender’s card clearly was calculated to inflame the 

minds of the jury. See Jackson, 287 S.W.3d at 354. Officer D’Eugenio’s reference 

to Appellant’s offender’s card (and implicitly to his prior criminal history) was 

uninvited and unembellished and more veiled and unnoticeable than those references 

typically cured by an instruction to disregard. See Ladd, 3 S.W.3d at 571; Kemp, 

846 S.W.2d at 308; Nobles, 843 S.W.2d at 514; Gardner, 730 S.W.2d at 696-97; 
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Jackson, 287 S.W.3d at 354; Smith, 491 S.W.3d at 872-73. Because the trial court 

gave a prompt and appropriate curative instruction to the jury to disregard Officer 

D’Eugenio’s inadvertent reference to Appellant’s offender card, the trial court acted 

within its discretion when it denied Appellant’s motion for mistrial.

We also note that Appellant’s trial counsel nearly referenced Appellant’s 

offender card during the questioning of Officer Gamble regarding how evidence 

found in Complainant’s car after Appellant’s arrest was tagged by asking the officer: 

“And certainly, you wouldn’t want the complainant in a case who’s having to make 

an identification to be able to have access to a suspect’s offend — ID card, would 

you?” Additionally, we reject Appellant’s contention that, “[g]iven the extremely 

weak evidence of the State’s case, informing the jury that appellant had criminal 

history had a severe impact on the jury’s verdict.” Contrary to Appellant’s assertion

and as we have discussed above, the evidence supporting a finding that Appellant 

committed aggravated robbery was not “extremely weak.” 

Accordingly, we overrule Appellant’s first issue.

CONCLUSION

We affirm the trial court’s judgment.

 /s/ Meagan Hassan

 Justice

Panel consists of Justices Christopher, Hassan and Poissant.

Do Not Publish — Tex. R. App. P. 47.2(b).