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

DISSENTING OPINION
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Because the majority errs in holding that the evidence is legally insufficient 

to support the jury’s finding that appellant, Richard Rene Rivera, is guilty of the 

felony offense of racing without a license,

1

I respectfully dissent.

We review the legal sufficiency of the evidence by considering all of the 

evidence in the light most favorable to the jury’s verdict to determine whether any 

“rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–

89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role 

is that of a due process safeguard, ensuring only the rationality of the trier of fact’s 

finding of the essential elements of the offense beyond a reasonable doubt. See 

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference 

to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh 

evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 

750. However, our duty requires us to “ensure that the evidence presented actually 

supports a conclusion that the defendant committed” the criminal offense of which 

he is accused. Id.

In conducting our review of the sufficiency of the evidence, we treat direct 

and circumstantial evidence equally because circumstantial evidence is as probative 

as direct evidence in establishing the guilt of a defendant. Clayton v. State, 235 

 

1 See TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16 (Vernon Supp. 2016).
3

S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is “direct proof 

of a secondary fact which, by logical inference, demonstrates the ultimate fact to be 

proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984). And it 

alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Further, the 

“cumulative force” of all the circumstantial evidence in a case can be sufficient to 

support a jury finding of guilt beyond a reasonable doubt. See Powell v. State, 194 

S.W.3d 503, 507 (Tex. Crim. App. 2006).

It is important to note that the term “inference” means:

In the law of evidence, a truth or proposition drawn from another which 

is supposed or admitted to be true. A process of reasoning by which a 

fact or proposition sought to be established is deduced as a logical 

consequence from other facts, or a state of facts, already proved . . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston 

[1st Dist.] 1993, writ dism’d w.o.j.) (quoting Inference, BLACK’S LAW DICTIONARY

(5th ed. 1979)). For a jury to infer a fact, “it must be able to deduce that fact as a 

logical consequence from other proven facts.” Id.

A person commits the offense of racing without a license if he:

(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.

TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16(a) (Vernon Supp. 2016). 
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Moreover, 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) (Vernon 2011). 

In accord with the above law, the trial court, in its charge, instructed the jury 

that it could find appellant guilty:

[I]f [it] f[ound] 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.

(Emphasis added.)

From the record evidence detailed by the majority in its opinion, the jury could 

have reasonably inferred that appellant, with the intent to promote or assist in the 

offense of racing without a license, encouraged, aided, or attempted to aid another 

to commit the offense. See id. Indeed, our sister court in a similar case involving 

another security guard at the same racetrack so concluded. See Hurd v. State, No. 

14-15-00343-CR, --- S.W.3d ---, 2016 WL 4211472, at *3–5 (Tex. App.—Houston 

[14th Dist.] Aug. 9, 2016, no pet.). Contrary to the majority’s conclusion, the State, 
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in the instant case, presented ample evidence that appellant, acting as a security 

guard and in violation of his oath as a peace officer, played a critical role in ensuring 

the success of the commission of the offense, and he was not merely “present at a 

horse race at which betting was occurring.”

Accordingly, I would hold that the evidence is legally sufficient to support the 

jury’s finding that appellant is guilty of the offense of racing without a license. See 

TEX. REV. CIV. STAT. ANN. art. 179e, § 14.16(a). And I would affirm the judgment 

of the trial court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Keyes, and Bland.

Jennings, J. dissenting.

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