Opinion issued November 17, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00957-CR

———————————

RICHARD RENE RIVERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Case No. 1404642

O P I N I O N

A jury convicted appellant, Richard Rene Rivera, of the third-degree felony 

offense of racing without a license.1 The trial court assessed his punishment at two 

 

1 See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (West Supp. 2016).
2

years’ confinement, suspended for two years, and a $2,000 fine. In eleven issues on 

appeal, appellant contends: (1) the State failed to present sufficient evidence that he 

conducted a horse race without a license as alleged in the indictment; (2)–(3) the 

trial court erroneously allowed two police officers to testify that, in their opinion, 

appellant was guilty of helping to conduct a horse race; (4)–(6) the trial court 

erroneously allowed the State to introduce evidence that appellant’s wife committed 

the extraneous offense of impersonating a police officer because the evidence was 

irrelevant, unduly prejudicial, and constituted improper character evidence; (7)–

(9) the trial court erroneously allowed the State to introduce evidence that 

appellant’s wife committed the extraneous offense of being a party to an illegal bet 

because the evidence was irrelevant, unduly prejudicial, and constituted improper 

character evidence; (10) the trial court erroneously admitted testimony of statements 

made to another security officer because the statements were irrelevant and made 

outside of appellant’s presence; and (11) the trial court erroneously included an 

instruction on law of parties in the jury charge.

We reverse and render a judgment of acquittal.

Background

This case grew out of an investigation of a racetrack in Crosby, Texas, for a 

violation of the Texas Racing Act. 
3

Appellant was a Department of Public Safety (“DPS”) trooper and the 

coordinator of outside jobs for the DPS. In 2008, he began working an extra job 

providing security at the El Herradero Ranch in Crosby. In 2013, the owners of the 

ranch added a racetrack to the property. In early 2013, Agent J. Duck, with the 

Criminal Investigation Division of DPS, began investigating the racetrack to 

determine whether illegal betting on horse races was occurring at this property. In 

2014, appellant was indicted, tried, convicted, and sentenced under the Texas Racing 

Act for conducting a horse race without a racetrack license when he knew or should 

have known that another person was betting on the final outcome of the race.

Agent Duck testified that, in early 2013, he and the Criminal Investigation 

Division of DPS began investigating the racetrack that had been added at the El 

Herradero Ranch to determine whether illegal betting on horse races was occurring 

at this property. He testified that, under the Texas Racing Act, betting on the 

outcome of horse races may only occur at racetracks that are licensed by the Texas 

Racing Commission and may only occur between the patron and the racetrack itself, 

but may not occur between patrons. The racetrack at the El Herradero Ranch was 

not licensed by the Texas Racing Commission.

Agent Duck sent Investigator Garcia and Agent J. Aguillera to El Herradero 

Ranch undercover as patrons on approximately eight different dates throughout 

2013, beginning on February 23, 2013, to record what they witnessed using both 
4

audio and video equipment. Agent Duck instructed the agents to discover “who was 

running things inside the racetrack,” to determine if betting was occurring, and to 

determine if the individuals in charge of the racetrack knew that betting was 

occurring. The property had a parking area, an area for concession stands, a DJ, an 

elevated area for photo-finish cameras, starting gates, a straight-line dirt track, and 

fences, along which the patrons would stand to watch the races.

El Herradero Ranch personnel handed out schedules of the races that occurred 

each day and that said, in both English and Spanish, “gambling prohibited.” Signs 

located throughout the property also said “gambling prohibited.” Agent Duck 

testified that, despite these signs, “it was blatantly obvious once we got in there that 

gambling was going on.” Agent Duck testified that the El Herradero Ranch made 

money by charging a $20 entrance fee, by selling alcohol and food at a concession 

stand, and by selling “photo finishes and winner circle photographs [and] DVD’s as 

well.”

Agent Duck agreed with the State that his investigation uncovered no 

evidence that the racetrack or the owners of the track were taking bets from patrons. 

If that was occurring, Agent Duck agreed that it was not happening “out in the open.” 

Agent Duck testified that betting among patrons, however, did occur “out in the 

open.” He stated:

The way that the bets would take place was everyone would line up 

along the rail of [the] racetrack before the race. The horses would walk 
5

by with other horses and riders. As the horses are walking by and 

everyone is getting a look at them, it would just be people betting back 

and forth to one another. They would be asking, [‘]I like the one on 

this side or the one [on] that side[,’] determining a particular horse. 

They would also state which amount they would like to bet.

When he viewed the videos from the undercover agents, Agent Duck was able to 

witness betting occurring between patrons.

Agent Duck testified that on the first day he sent officers undercover to the El 

Herradero Ranch, February 23, 2013, the officers witnessed appellant, a DPS 

Trooper, working an extra job as the head of security at the property. Appellant was 

present at the track on six of the eight days that the agents conducted undercover 

surveillance. Appellant wore his DPS uniform while he was at the property, and it 

was “obvious” that he was not there as a patron. Agent Duck testified that appellant 

“was working at the racetrack, showing a command presence. He would pull a rope 

across the racetrack and allow patrons to pass. He would check people and make 

sure they weren’t bringing in beer from outside since they sold beer there.” Agent 

Duck stated that other police officers were at the property working security, as well 

as “an individual there who was dressed as a police officer and impersonating [but 

who] was not a police officer.” Agent Duck identified this individual as Consuela 

Rivera, appellant’s wife.2 Appellant objected to this testimony on relevance

 

2 The undercover officers testified that, on various occasions, Consuela Rivera wore 

either a peace officer’s uniform with a state seal or a shirt that had her name and 
6

grounds, Rule 403 grounds, and Rule 404(b) grounds. The trial court overruled these 

objections and allowed Agent Duck to testify that Consuela Rivera, who was not a 

police officer, wore an officer’s uniform while working security at the property.

Agent Duck testified that “[i]t was apparent that Mr. Rivera was in charge” of 

the other officers at the property and that appellant would coordinate the officers’ 

schedules. He also stated that police officers working extra jobs “still enforce the 

laws” and “still provide a command presence.” If an officer sees a crime occur while 

he is working an extra job, he is “bound to act on that appropriately and make the 

arrest or whatever action needs to be taken.”

On re-direct examination, the State asked Agent Duck about the types of 

actions appellant performed in providing security at the El Herradero Ranch. Agent 

Duck testified that officers observed appellant “pulling [a] rope across the track,” 

and he clarified that, in between the races, patrons were allowed to walk around the 

property and appellant “would pull the rope across the track to allow patrons to get 

across safely without having a run in with one of the horses.”

Agent Duck and the State had the following exchange:

[The State]: So were there times when [appellant] allowed 

people to walk and times when he stopped 

people from walking on the track?

[Agent Duck]: Yes, ma’am.

 

patches and that identified her as a police officer. Appellant testified that Consuela 

“wore a generic uniform” and carried a firearm.
7

[The State]: Did that aid in the racing?

[Agent Duck]: Yes, ma’am.

[Defense counsel]: Your Honor, that’s a legal determination by 

the jury, invading the province of the jury.

The Court: Overruled, Counsel.

Agent Duck also testified that appellant wore either his full DPS uniform or a safety 

vest that stated “Police,” and he would ride around the property on a four-wheeled 

ATV to “check out different locations of the track.”

Agent Aguillera testified that he went undercover as a patron at El Herradero 

Ranch on approximately five occasions, equipped with an audio and video recorder. 

He agreed with the State that gambling was occurring at the races. He testified that 

“[p]rior to the races, we would have people come up and ask us [‘W]hich horse do 

you want? Which side do you want?[’]” and that the patrons were not whispering 

or trying to hide what they were doing. After the races, Agent Aguillera witnessed 

the open exchange of money between patrons depending on the outcome of the race. 

Agent Aguillera was repeatedly approached by patrons asking him if he wanted to 

place a bet. Agent Aguillera witnessed patrons betting on the races each time he 

visited the El Herradero Ranch.

Agent Aguillera testified that appellant would spend some time on a fourwheeler driving around the property and that at other times he would be walking 

through the crowd or on the track. Agent Aguillera agreed with the State that there 
8

were times when appellant “was present in a crowd of people and betting would be 

taking place” and that appellant was occasionally “nearby when the gambling was 

going on.” At one point, appellant was standing approximately thirty yards away 

from two patrons exchanging money after a race. Agent Aguillera testified that it 

was possible that that transaction could have been visible to appellant. On other 

occasions, patrons engaged in gambling and discussing gambling were ten or fifteen 

feet away from appellant.

On October 5, 2013, Agent Aguillera again visited the racetrack. On this 

occasion, he had a conversation with appellant that was recorded. Appellant had left 

the parking area and was walking toward the concession stand, and Agent Aguillara 

asked him a couple of questions, including whether it was okay for him as patron to 

make a bet on a race. Appellant replied “yes as long as he didn’t see it” because he 

“couldn’t take enforcement action upon” bets that he did not witness. Agent 

Aguillera witnessed gambling every time he visited the racetrack and it always 

occurred in the open.

The trial court admitted video recordings that Agent Aguillera made while 

undercover at the property. One clip depicted the conversation Agent Aguillera had 

with appellant on October 5, 2013, regarding whether betting was allowed. Other 

clips showed appellant and other security officers, in uniform, walking on the track, 

around the property, and through the crowd. In one video, taken on March 30, 2013, 
9

appellant can be seen sitting on an ATV near the track after a race had occurred. 

Within the next two minutes, three different payouts for bets occurred while 

appellant sat on the ATV approximately thirty to fifty feet away. It’s unclear from 

the video whether those payouts occurred within appellant’s line of sight. On crossexamination, Agent Aguillera acknowledged that he could not see any patrons 

gambling right in front of appellant and that appellant was not “in the middle” of 

betting as it was occurring.

Investigator Garcia, a lieutenant with the Brookshire Police Department 

assigned to work with DPS, first went to El Herradero Ranch on February 23, 2013. 

He immediately witnessed patrons betting, and he testified that some individuals 

“were actually walking around asking if somebody wanted to take a bet.” He 

testified:

It was open. It was out in the open. You just go up there and people 

start asking which horse you want. They start asking you want this 

horse or that horse type deal. Trying to engage in betting as soon as 

you walk up. It’s just open betting.

The State and Investigator Garcia had the following exchange:

[The State]: As part of your undercover role, was it to 

determine who was helping conduct this 

racetrack?

[Investigator Garcia]: Our deal is trying to find who was conducting 

it and to document that in fact it was going 

on.
10

[The State]: Were there other people that, you, throughout 

the investigation were able to identify as 

helping run the track?

[Investigator Garcia]: Yes, ma’am. There were property owners 

and probably about six other officers.

[Defense counsel]: Your Honor, we object to helping run the 

track as being a legal conclusion and 

invading [the] province of the jury.

The Court: Overruled.

The trial court also admitted video recordings made by Investigator Garcia 

while undercover. In one clip, taken on an unknown date, three different payouts 

occurred among patrons standing near the fence running along the racetrack. While 

this occurred, appellant stood on the track, approximately twenty to thirty feet away, 

with his back to the patrons. He later turned towards the patrons, but the video did 

not show any further betting among patrons occurring at this time. The trial court 

admitted another video in which patrons were “celebrating” over a race that had just 

occurred while appellant was standing nearby. Investigator Garcia agreed that “at 

this time, at this location,” he saw betting occurring.

Investigator Garcia also testified that, on one occasion, he approached 

Consuela Rivera, who was wearing a shirt that identified her as a police officer, and 

spoke with her. Investigator Garcia “asked her about the horses, which one would 

be a good one to bet on.” Defense counsel objected on relevancy, Rule 403, and 

Rule 404(b) grounds. The trial court overruled the objections. Investigator Garcia 
11

testified that his conversation with Consuela Rivera was amicable and that, after 

their conversation, he made a bet on the next race with a patron. The trial court 

admitted an audio recording of this conversation. Investigator Garcia won $100, and 

he “paid Ms. Rivera for information” and “told her it was payoff for the tip she had 

given [him].” Consuela Rivera took the money from Investigator Garcia and “was 

happy about it.”

Investigator Garcia also testified concerning a conversation that he had with 

another person working security, Officer G. Hurd. Defense counsel objected to the 

State’s line of questioning on relevancy grounds, and the trial court overruled the 

objection. Investigator Garcia testified that he told Officer Hurd, “[I]f I won, based 

on the information he gave me, I would give him some money. Or if he ever wanted 

to make a bet to let me know, and I would bet for him.” Officer Hurd did not escort 

Investigator Garcia off the property or write him a ticket, and Garcia was able to 

continue betting on that occasion. On cross-examination, Investigator Garcia 

testified that appellant was not present at the time Garcia had this conversation with 

Officer Hurd.

Investigator Garcia testified that he never spoke with appellant, but, on one 

occasion while appellant was standing nearby, he got into an argument with another 

patron concerning whether a race had actually occurred and whether the other person

was going to pay Garcia. One of the property owners, Reginald Mandujano, was 
12

called over to mediate the dispute, and the owner “agreed that it was a race, and the 

[other patron] paid [Garcia].” Investigator Garcia was not being “covert or quiet,” 

but was instead “being loud and kind of arguing about getting paid.” The other 

patron did not appear worried that appellant was standing nearby. There is no 

indication from Investigator Garcia’s testimony that Mandujano was still standing 

nearby when this payout occurred or that Mandujano saw the payout. Investigator 

Garcia testified that he never had a direct conversation with either appellant or 

Mandujano.

Harris County Constable’s Officer Sergeant A. Rubio testified that he had

known appellant for many years and that appellant had been a coordinator for 

officers who wanted to work extra jobs. Sergeant Rubio obtained an extra job 

through appellant on a few occasions, including one day working security at El 

Herradero Ranch in 2013. Sergeant Rubio saw patrons openly holding cash and 

recording the races, and he believed that gambling was occurring at the property. 

Later that day, Sergeant Rubio informed appellant of what he observed and his 

concerns, and he told appellant that he would not work security at the property 

again.3 Sergeant Rubio informed the Office of the Inspector General of what he had 

 

3 Appellant testified that Sergeant Rubio told him of his concerns about gambling at 

the property. He stated that, despite these concerns, Rubio did not arrest anyone on 

the day he worked at the property.
13

witnessed, and he called Noe Diaz, with the Texas Rangers, to report his 

observations.

Ranger Diaz testified concerning the types of extra jobs that DPS troopers are 

allowed to work. He stated that jobs where gambling occurs are strictly prohibited. 

When appellant applied to work an extra job at the El Herradero Ranch, he listed the 

nature of the business as “a Mexican rodeo,” but Ranger Diaz testified that he would 

characterize the property as a “straight track,” not as a rodeo. If appellant had listed 

“racetrack” on his application to work security, that would have “immediately” 

triggered concern among the officers who approve extra jobs. After receiving 

information from Sergeant Rubio concerning the activities at the El Herradero 

Ranch, Ranger Diaz began an investigation and eventually coordinated with Agent 

Duck’s investigation and provided training assistance for the undercover agents.

Appellant testified on his own behalf. He testified that he has been a DPS 

Trooper since 1981. He started working security at El Herradero Ranch in 2008. It 

did not have a horse track at that time. From 2008 to 2013, a Mexican rodeo occurred 

at the property, and, in 2013, the owners added a horse track. He testified that his 

duty at El Herradero Ranch was to “provide security” and “enforce the law of the 

State of Texas.” He stated that his job was not to conduct horse races but to conduct 

security and make the premises safe for patrons. Appellant characterized his 

conversation with Agent Aguillera as Aguillera’s asking if gambling was occurring 
14

at the property and appellant responding that “if it’s in my view, I will take some 

action. But if it’s not in my view, I cannot take some action.” He stated that this 

was his way of giving a warning that gambling was prohibited, and if he saw 

gambling occurring, he “would do something about it.” Appellant testified, “I was 

there to enforce all the laws. They never gambled in front of me. They never bet in 

front of me. I was never able to take any action on that.”

On cross-examination, appellant had the following exchange with the State:

[The State]: We’re having horses racing, certainly the idea must 

come to you that some people may want to bet on 

that?

. . . .

[Appellant]: They bet everywhere. Everywhere betting is done.

[The State]: Everywhere racing is, betting is done?

[Appellant]: In everything. You go to Reliant Park, you go to 

[Minute Maid] Park, you go to boxing, you go to 

anywhere, betting is done.

[The State]: So certainly based on your training and experience, 

you can expect betting to be going on at that facility; 

is that correct?

[Appellant]: It’s a possibility. If they do it in front of me, I’m 

going to take action.

Appellant testified that none of the security officers working with him approached 

him to inform him that betting was occurring. He stated that the officers are 

“supposed to take action” if they see betting occurring, and that they know they are 

supposed to take action because they are police officers.
15

Appellant objected at trial to the admission into evidence of the testimony of

Agent Duck and Investigator Garcia that, in their opinion, appellant was conducting 

the race and aiding the racing as improper testimony on legal issues. He also 

objected to the trial court’s admission of evidence of the extraneous offense of a 

third party at the guilt/innocence stage of trial as improperly prejudicial and 

irrelevant. He further objected to the trial court’s admission of statements made to 

a third party outside of appellant’s presence as evidence of his guilt. The trial court 

overruled all of appellant’s objections.

The jury charge included a law of parties instruction and thus authorized the 

jury to find appellant guilty of the offense of racing without a license either as the 

primary actor or as a party to the offense. No one other than appellant was identified 

as a primary actor in the charge. The law of parties portion of the application 

paragraph stated:

[I]f you find from the evidence beyond a reasonable doubt that on or 

about the 5th day of October, 2013, in Harris County, Texas, an 

unknown person or persons, did then and there unlawfully, 

intentionally or knowingly conduct a horse race without having a 

racetrack license from the Texas Racing Commission, and the unknown 

person or persons knew or reasonably should have known that another 

person was betting on the final outcome of said race, and that the 

defendant, Richard Rene Rivera, with the intent to promote or assist the 

commission of the offense, if any, solicited, encouraged, directed, aided 

or attempted to aid the unknown person or persons to commit the 

offense, if he did, then you will find the defendant guilty of a violation 

of the Texas Racing Act, as charged in the indictment.
16

The jury found appellant guilty of the offense of racing without a license. The 

trial court assessed appellant’s punishment at two years’ confinement, suspended for 

two years, and a $2,000 fine. This appeal followed.

Racing Without a License

In his first issue, appellant contends that the State presented insufficient 

evidence that he conducted a horse race without a racetrack license as a primary 

actor, as alleged in the indictment. In his eleventh issue, appellant contends that the 

trial court erred in including an instruction on the law of parties in the charge because 

the State presented no evidence that someone else was the primary actor for the 

offense of conducting an illegal race and no evidence that appellant intentionally 

aided in committing this offense, as required by the statute. We consider these issues

together.

A. Standard of Review of Sufficiency of the Evidence

When reviewing the sufficiency of the evidence, we view all of the evidence 

in the light most favorable to the verdict to determine whether any rational fact finder 

could have found the essential elements of the offense beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. 

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard 

is only standard to use when determining sufficiency of evidence). The jurors are 

the exclusive judges of the facts and the weight to be given to the testimony. Bartlett 
17

v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge 

of credibility, may accept one version of the facts and reject another, and it may 

reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. 

App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve 

witness even when witness’s testimony is uncontradicted).

We may not re-evaluate the weight and credibility of the evidence or substitute 

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 

(Tex. Crim. App. 2007). We afford almost complete deference to the jury’s 

credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. 

App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. 

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports 

conflicting inferences, we presume that the factfinder resolved the conflicts in favor 

of the prosecution and therefore defer to that determination.”). Circumstantial 

evidence is as probative as direct evidence in establishing guilt, and circumstantial 

evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 

155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need 

not point directly and independently to the guilt of the appellant, as long as the 

cumulative force of all the incriminating circumstances is sufficient to support the 
18

conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “[A]ll the 

evidence the jury was permitted, properly or improperly, to consider must be taken 

into account in determining the . . . sufficiency of the evidence.” Barnes v. State, 62 

S.W.3d 288, 297–98 (Tex. App.—Austin 2001, pet. ref’d). 

B. Conducting a Horse Race Without a Racetrack License as a Primary 

Actor

The Texas Racing Act, under which appellant was convicted, provides:

(a) A person commits an offense if the person:

(1)Conducts a greyhound or horse 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.

(b)An offense under this section is a felony of the third degree.

TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (West Supp. 2016). Thus, to establish 

that appellant committed the offense of conducting a horse race without a racetrack 

license as a primary actor, the State had to prove that appellant “conduct[ed] 

a . . . horse race without a racetrack license” and that appellant “kn[ew] or 

reasonably should [have] know[n] that another person was betting on the final 

outcome of the race.” See id.
19

The Texas Racing Act does not define the term “conducts.”4 The Court of 

Criminal Appeals has held that, when interpreting a statute, “an undefined word or 

phrase should be construed and understood according to its common, every day 

usage.” Hanna v. State, 426 S.W.3d 87, 92 (Tex. Crim. App. 2014); see also TEX.

GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read in 

context and construed according to the rules of grammar and common usage.”). 

“Jurors may ‘freely read [undefined] statutory language to have any meaning which 

is acceptable in common parlance.’” Kirsch v. State, 357 S.W.3d 645, 650 (Tex. 

Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 

1995)).

Appellant and the State have offered various definitions of “conduct” when 

used as a verb in order to aid our interpretation of Texas Racing Act section 14.16.

5

 

 

4 One other Texas criminal statute uses “conducts” as a verb: Penal Code section 

34.02, which concerns money laundering. See TEX. PENAL CODE ANN.

§ 34.02(a)(2) (West Supp. 2016) (“A person commits an offense if the person 

knowingly . . . conducts, supervises, or facilitates a transaction involving the 

proceeds of criminal activity.”). As with the Texas Racing Act, the Penal Code does 

not define “conducts” when used as a verb. But see id. § 1.07(a)(10) (Vernon Supp. 

2015) (defining “conduct,” when used as a noun, as “an act or omission and its 

accompanying mental state”). And, as with the Texas Racing Act, no Texas court 

has interpreted the meaning of “conducts” in the context of section 34.02.

5 The Fourteenth Court of Appeals recently decided a case arising out of this same 

incident involving another off-duty police officer working an extra job as security 

at El Herradero Ranch. See Hurd v. State, 495 S.W.3d 592 (Tex. App.—Houston 

[14th Dist.] 2016, no pet.). Although the appellant in that case challenged the 

applicability of article 14.16 to him as well as the sufficiency of the evidence to 

convict him as a primary actor or as a party, our sister court did not analyze the 
20

The State cites the Merriam-Webster Dictionary, which defines “conduct” as “to 

direct or take part in the operation or management of” and “to direct the performance 

of.” Conduct, MERRIAM-WEBSTER.COM, www.merriam-webster.com/

dictionary/conduct (last visited Nov. 14, 2016). The American Heritage Dictionary 

defines “conduct” as “to direct the course of; manage or control.” Conduct, THE 

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 

https://ahdictionary.com/word/search.html?q=conduct (last visited Nov. 14, 2016); 

see also Conduct, WEBSTER’S NEW WORLD COLLEGE DICTIONARY, 

www.yourdictionary.com/conduct#websters (last visited Nov. 14, 2016) (defining 

“conduct” as “to manage, control, or direct”).

Each of these definitions of “conduct” implies a degree of management, 

control, and authority over what is being conducted. Thus, in the context of section 

14.16, a person “conducts a horse race” if he directs or takes part in the operation or 

management of a horse race, or directs the performance of the race, or controls the 

race. And he violates section 14.16 if he performs such functions without a racetrack 

license and he knows or reasonably should know that another person is betting on 

the outcome of the race. There is no evidence in the record that appellant was a 

person required to have a racetrack license. There is no evidence in the record to 

 

language of article 14.16 or specifically define what it means to “conduct” a horse 

race.
21

show that appellant directed the operation or management of the racetrack, the racing 

operation, or the performance of the races.

Instead, the evidence reflects that, in addition to generally ensuring the 

security of the property and the safety of the patrons, appellant’s only action in 

connection with the actual races themselves was to ensure that patrons stayed off the 

track during races by pulling a rope back and forth across the track. These actions 

do not require a racetrack license and do not constitute management, control, or 

direction of the operation, the course, or the performance of a horse race without a 

license. We therefore conclude that the State presented insufficient evidence that 

appellant was guilty as the primary actor of conducting a horse race at which betting 

was occurring without a racetrack license.

C. Conducting a Horse Race Without a Racetrack License as a Party

The State points out, however, that the jury charge authorized the jury to 

convict appellant as a party to the offense under the law of parties. On appeal, 

appellant argues that the instruction was improperly given and that the evidence is 

insufficient to support his conviction under the law of parties. We therefore must 

consider whether the State presented sufficient evidence that appellant was guilty as 

a party of the criminal offense of conducting a horse race without a license. 

“An instruction on the law of parties should be submitted to the jury when the 

evidence adduced at trial shows the active participation in the offense by two or more 
22

persons.” Gilmore v. State, 397 S.W.3d 226, 243 n.24 (Tex. App.—Fort Worth 

2012, pet. ref’d). If the State is to prove a defendant’s guilt as a party beyond a 

reasonable doubt, the State must first prove the guilt of another party as the primary 

actor. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993); Barnes, 

62 S.W.3d at 296. To support an instruction on the law of parties, the State need not 

establish the identity of the primary actor in the commission of the offense; rather, 

it is sufficient that the State prove conduct by a third party constituting the offense 

and an act by the accused committed with the specific intent to promote or assist the

conduct. See Nelson v. State, 405 S.W.3d 113, 126 (Tex. App.—Houston [1st Dist.] 

2013, pet. ref’d); Mullins v. State, 173 S.W.3d 167, 174 (Tex. App.—Fort Worth 

2005, no pet.); Barnes, 62 S.W.3d at 296. “To establish guilt under the law of 

parties, the evidence must show that, at the time of the offense, the parties were 

acting together, each contributing some part towards the execution of their common 

purpose.” Nelson, 405 S.W.3d at 123.

“In general, an instruction on the law of parties may be given to the jury 

whenever there is sufficient evidence to support a jury verdict that the defendant is 

criminally responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 

(Tex. Crim. App. 1999); Ryser v. State, 453 S.W.3d 17, 28 (Tex. App.—Houston 

[1st Dist.] 2014, pet. ref’d). The trial court may include this instruction in the charge

if evidence supporting the theory has been introduced at trial, even if the indictment 
23

alleges only that the defendant acted as a principal actor. Ryser, 453 S.W.3d at 28. 

Under the law of parties, a person is criminally responsible as a party to an offense 

if the offense is “committed by his own conduct, by the conduct of another for which 

he is criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a) (West

2011); Nelson, 405 S.W.3d at 123. 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.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West

2011).

Further, “it must be shown that, in addition to the illegal conduct by the 

primary actor, the accused harbored the specific intent to promote or assist the 

commission of the offense.” Barnes, 62 S.W.3d at 296; see Richardson, 879 S.W.2d 

at 882. The accused must know that he was assisting in commission of the offense. 

Barnes, 62 S.W.3d at 296; see Amaya v. State, 733 S.W.2d 168, 174–75 (Tex. Crim. 

App. 1986). This “agreement, if any, must be before or contemporaneous with the 

criminal event.” Barnes, 62 S.W.3d at 296 (emphasis in original); see Beier v. State, 

687 S.W.2d 2, 3–4 (Tex. Crim. App. 1985). “The evidence must show that at the 

time of the commission of the offense, the parties were acting together, each doing 

some part of the execution of the common design.” See Barnes, 62 S.W.3d at 297

(emphasis in original).
24

“The State must show more than mere presence to establish participation in a 

criminal offense.” Id. (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 

1981)). The accused’s “[m]ere presence or even knowledge of an offense does not 

make [him] a party to the offense.” Barnes, 62 S.W.3d at 297; see Oaks v. State, 

642 S.W.2d 174, 177 (Tex. Crim. App. 1982). In determining whether a defendant 

participated in the commission of an offense as a party, the fact finder may examine 

the events occurring before, during, and after the commission of the offense and may 

rely on actions of the defendant that show an understanding and common design to 

commit the offense. Barnes, 62 S.W.3d at 297. 

Here, the jury charge instructed the jury that it could find appellant guilty 

under the law of parties 

if you find from the evidence beyond a reasonable doubt that on or 

about the 5th day of October, 2013, in Harris County, Texas, an 

unknown person or persons, did then and there unlawfully, 

intentionally or knowingly conduct a horse race without having a 

racetrack license from the Texas Racing Commission, and the unknown 

person or persons knew or reasonably should have known that another 

person was betting on the final outcome of said race, and that the 

defendant, Richard Rene Rivera, with the intent to promote or assist the 

commission of the offense, if any, solicited, encouraged, directed, aided 

or attempted to aid the unknown person or persons to commit the 

offense.

Appellant argues that the “unknown person or persons” mentioned in the jury 

charge presumably refers to the owners of the El Herradero Ranch. But the State 

presented no evidence beyond mere speculation that any person who owned or 
25

operated the racetrack committed the offense of conducting a horse race without a 

racetrack license and “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, art. 1, sec. 14.16(a). There was simply nothing in the record to 

convict any person as a primary actor of the offense of conducting a horse race 

without a racetrack license.

The only person fitting the description of an owner or manager of the racetrack 

at El Herradero Ranch was Reginald Mandujano. Investigator Garcia identified 

Mandujano as one of the owners of the property and presented evidence that he was 

present at the racetrack on at least one occasion. Garcia also testified that betting 

occurred among patrons on horse races at El Herradero Ranch, was “open” and 

“obvious” when he was walking through the crowds, and occurred each time 

undercover agents visited the property. On the occasion when Mandujano was 

present, he was asked to decide a dispute between Garcia and another patron with 

whom Garcia had made a bet as to whether a race had occurred. Mandujano 

reviewed a tape of the race and determined that a race had occurred. That was all he 

was asked to do. The patron then paid Garcia. But there is no indication in the 

record that Mandujano was still nearby when this payout occurred or that he saw the 

payout. Garcia testified that he never had a direct conversation with Mandujano. 
26

There was no evidence that Mandujano personally conducted the operation of the 

racetrack or managed, controlled, or directed the races at the site.

The State presented no testimony concerning who was in charge of conducting 

the horse races, such as whether the owners of the property were in charge or whether 

another individual was in charge of managing the business of the racetrack. The 

only testimony that the State presented concerning the owners’ involvement with the 

racetrack was Investigator Garcia’s testimony concerning Mandujano’s resolution 

of the dispute Garcia had with a patron about whether a race had occurred and 

Garcia’s testimony that the owners’ family members worked at the property 

collecting entrance fees at the gate and selling food and beer. The State presented 

no testimony that any of the owners, if they were the ones conducting the races, were 

aware of the betting that was occurring among the patrons along the sidelines of the 

track before and after races. The State presented no evidence that the owners were 

present when betting was occurring and saw bets being placed or money exchanging 

hands after a race.6

 

6 We note that, in Hurd, the Fourteenth Court concluded that Mandujano knew or 

reasonably should have known that others were betting on the outcomes of races. 

495 S.W.3d at 597–98. The Fourteenth Court based this conclusion on the facts that 

Mandujano owned El Herradero Ranch, he was observed at the racetrack on a race 

day, he paid the employees, and the betting was “open and pervasive.” Id. at 597. 

However, there is no evidence in the record in this case that Mandujano, despite 

being an owner of the property and being present at a race, operated the racetrack 

or otherwise conducted the horse races, or himself saw or aided or participated in 

illegal betting. We therefore disagree with the Fourteenth Court that the State 
27

Based on this record, we conclude that the State presented no evidence that 

any property owner, or any other unidentified individual, conducted an identifiable

horse race without a racetrack license when he knew or reasonably should have 

known that another person was betting on the final outcome of that race. There was, 

therefore, insufficient evidence to convict any person of the offense of violating the 

Texas Racing Act. See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16. 

There was likewise no evidence that, at time of the commission of a proven 

offense, appellant had an agreement with a primary actor entered with the specific 

intent to promote or assist in the commission of the offense and that “the parties were 

acting together, each contributing some part towards the execution of their common 

purpose.” See Barnes, 62 S.W.3d at 296–97. Appellant could be held criminally 

responsible for the conduct of another under the law of parties only if, acting with 

intent to promote or assist the commission of the offense, he “solicit[ed], 

encourage[d], direct[ed], aid[ed], or attempt[ed] to aid the other person to commit 

the offense.” See TEX. PENAL CODE ANN. § 7.02(a)(2); see also Nelson, 405 S.W.3d 

at 123 (stating that, to establish guilt under law of parties evidence must show that, 

at time of offense, “the parties were acting together, each contributing some part 

towards the execution of their common purpose”).

 

established Mandujano’s criminal liability as a primary actor beyond a reasonable 

doubt.
28

There was no evidence of any agreement between appellant and another party 

to the offense to conduct a horse race without a racetrack license at the time of 

appellant’s alleged offense. And there was no evidence of how appellant and one or 

more of the parties acted together to contribute to the execution of a common 

purpose of committing the offense. At most, the evidence showed that appellant was 

present at a horse race at which betting was occurring.7 Mere presence during the 

commission of an offense is legally insufficient evidence to convict a person of an 

offense as a party. See Barnes, 62 S.W.3d at 297 (stating that State must show more 

than mere presence to establish participation in criminal offense); see also Nelson, 

405 S.W.3d at 126 (stating that when defendant is not primary actor, State must 

prove conduct constituting offense plus act by defendant done with specific intent to 

promote or assist such conduct). As a result, the State failed to prove that appellant 

 

7

In concluding that the State presented sufficient evidence that the defendant violated 

article 14.16 as a party in Hurd, the Fourteenth Court stated, “The conviction here 

does not rest on proof of [Hurd’s] status within an enterprise that merely had 

criminal potential. Rather, [Hurd’s] conviction rests on evidence of his actions as a 

security officer coupled with evidence that he affirmatively encouraged hand-tohand betting.” 495 S.W.3d at 599. After an undercover officer complained to Hurd 

that he “wasn’t hardly winning anything,” Hurd told the officer that “he should have 

bet $500 on the previous race.” Id. at 598. There was no evidence in this case that 

appellant affirmatively encouraged any of the patrons at El Herradero Ranch to 

engage in betting on the horse races.
29

was guilty of the charged offense as a party.8 See Richardson, 879 S.W.2d at 882; 

Barnes, 62 S.W.3d at 296.

We hold that the State failed to present sufficient evidence to support 

appellant’s conviction, either as the primary actor or as a party.

We sustain appellant’s first issue.9

 

8 We note that Penal Code section 7.03(2) provides that “[i]n a prosecution in which 

an actor’s criminal responsibility is based on the conduct of another, the actor may 

be convicted on proof of commission of the offense and that he was a party to its 

commission, and it is no defense . . . that the person for whose conduct the actor is 

criminally responsible has been acquitted, has not been prosecuted or convicted, has 

been convicted of a different offense or of a different type or class of offense, or is 

immune from prosecution.” TEX. PENAL CODE ANN. § 7.03(2) (West 2011) 

(emphasis added); Roberts v. State, 319 S.W.3d 37, 48 (Tex. App.—San Antonio 

2010, pet. ref’d) (holding that primary actor’s acquittal on three counts does not, by 

itself, “prevent appellant’s conviction on these same counts”). Here, however, the 

State has presented no evidence that a primary actor committed the charged offense 

of racing without a license. Section 7.03(2), therefore, does not apply to this case.

9 Because we hold that the State failed to present sufficient evidence to uphold 

appellant’s conviction, either as the primary actor or as a party, and we thus render 

a judgment of acquittal, we do not address the remainder of appellant’s issues.
30

Conclusion

We reverse the judgment of the trial court and render a judgment of acquittal.

Evelyn V. Keyes

Justice 

Panel consists of Justices Jennings, Keyes, and Bland.

Justice Jennings, dissenting.

Publish. TEX. R. APP. P. 47.2(b).