Opinion issued November 29, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00966-CR

———————————

SAM AUTRY FLETCHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1369730

MEMORANDUM OPINION

Appellant Sam Autry Fletcher appeals his conviction for aggravated 

robbery. The State requests that we reform the written judgment to reflect 

appellant’s plea of “true,” and the trial court’s implicit finding of “true,” to 

appellant’s prior conviction for purposes of punishment enhancement. We modify 
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the judgment as the State requests—which brings the written judgment in 

conformity with the record of the sentencing hearing—and otherwise affirm the 

judgment. 

A. The Robbery

On December 1, 2012, Hugo Iguirre picked up his wife Ivette from her night 

job, and they then went to Ivette’s brother’s house—where they were staying the 

night—arriving about 3:30 a.m. A small, white SUV sped up and parked behind 

them. Ivette believed the vehicle to be a Dodge Nitro or similar model. Four or 

five men jumped out carrying rifles and claiming to be police. The men were 

wearing masks, dark clothes and shoes, and police-raid vests. Hugo and Ivette 

were both struck in the head with guns, and the men threatened to kill them both. 

One man then told Ivette to unlock the door to her brother’s house. They 

then woke up Ivette’s brother, Luis Villanueva, and his wife Yaneth. Luis testified 

that, when he woke up to his sister coming into his bedroom, he got up and 

someone punched him. Luis then saw someone holding his sister at gunpoint with 

a handgun. Luis testified to seeing at least three men in their bedroom. One was 

very tall, about 7 feet. Another was around Luis’s height of 6 feet. Luis believed 

from their voices that they were both African American. The third was a little 

shorter, a little huskier, and spoke with a Hispanic accent. Yaneth testified it was 
3

too dark for her to see anyone, but she heard her husband get hit, and they were 

both then taken into the living room. 

The Villanuevas and Aguirres were ordered to lie face down on the living 

room floor, their hands and feet were bound, and they were repeatedly kicked by 

the intruders. Yaneth testified that she heard four different male voices that she did 

not recognize; she believed two were Hispanic and two were African American. 

She also described the four as wearing masks, dark clothes, dark shoes, and policeraid vests. Like her husband, she noticed one of the men was very tall with a large 

shape. The man who had put a gun to her head was shorter and somewhat heavy. 

The others were thin. Luis noticed two additional men later in the burglary.

The intruders ransacked the house, opened Christmas presents, and searched 

for any valuable items. The family was in fear for their lives, as the intruders 

threatened to throw gasoline on them and burn them alive, but it turned out they 

were only carrying water, not gasoline. 

After the intruders beat and kicked Luis again, they took Yaneth into the 

bathroom. She told the intruders that she had $27,000 cash in her closet. In 

addition to taking that money, the intruders took her wedding ring, a Play Station 

game console, games, other jewelry, and the money out of the Villanuevas’ 

daughter’s piggy bank. 
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After spending about 45 minutes in the apartment, the intruders untied Luis 

and took him with them, telling the others that they were doing so as insurance that 

they would not call the police. After they left, Ivette managed to untie herself, and 

then untied Yaneth and Hugo. They immediately called the police. 

In the meantime, Luis was held at gunpoint on the floor of his own truck 

while another man drove the truck. After about ten minutes, the men jumped out 

and untied Luis’s hands. The men fled and Luis drove his truck back home, 

arriving around the same time as the police. 

B. Appellant’s Apprehension

At 4:45 a.m. that same day, M. Haver, a constable deputy, was dispatched to 

the home invasion. She spotted what looked like a white Dodge Nitro matching 

the description of the vehicle that had been broadcast. When she passed the 

vehicle going the opposite direction, she spotlighted the SUV and at least four 

people inside the vehicle turned to look at her. She testified that at least three of 

them were dark skinned, either African American or dark Hispanic. She radioed 

dispatch and a nearby unit to report that she had located the suspect vehicle. As 

Haver started to follow the SUV, the driver sped up and tried to evade her. At one 

point, Deputy Constable P. Gennua picked up the pursuit. Haver was able to keep 

the SUV and Gennua’s vehicle in her sight at all times. When the SUV stopped on 

a dead-end street, the driver put it in reverse and all the occupants jumped out as it 
5

rolled backwards into a parked car. The occupants fled on foot into a wooded area. 

Given how dark the area was, Haver was not able to tell the number of people who 

fled, nor could he identify their ethnicity. 

Two K-9 officers arrived and tracked the woods, but their dogs lost the 

suspects’ scents at a set of railroad tracks. C. Marshall, one of the K-9 constable 

deputies, was called out again, however, after a suspect was located at a nearby rail 

yard. 

Mr. S. Davis, a locomotive engineer with the Union Pacific Railroad, 

testified that one morning—while he was tying up his locomotive—he was 

approached by a young man wearing all black. He immediately called his 

supervisor to report it because the person was trespassing on federal property. 

Davis provided in-court identification of appellant, testifying that appellant was the 

person who approached him in the rail yard. 

Appellant asked Davis for directions to Interstate 45. Appellant then offered 

Davis first $10, and then $100 if Davis would drive him to Interstate 45. Davis 

sent appellant to a safer area of the rail yard, and then called 911 to tell officers 

where to locate appellant. 

Marshall was dispatched to the rail yard, and his dog eventually indicated 

that it had picked up a suspect’s scent. Marshall then spotted a figure in all black 

hiding behind a tree in some vegetation. When Marshall ordered the suspect to 
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show his hands and got no response, he sent his dog in for apprehension. Marshall 

explained that process involves the dog grabbing a suspect at one spot and not 

letting go until an officer approaches. Another officer, Lieutenant Glaze, reached 

the suspect first and handcuffed him. Marshall then called off his dog. Marshall 

provided in-court identification of appellant as the suspect that they apprehended

near the rail yard. 

Marshall testified that he called EMS, as is procedure whenever a dog 

detains a suspect by biting. While the officers were walking appellant back to their 

cars, appellant asked for some water. Appellant told Marshall that he was running 

because he had seen a police helicopter and a police car and that it was the most he 

had ever run in his life. 

Marshall and Glaze then handed off appellant to Sergeant Garza and 

Lieutenant W. Schultz. 

C. Crime Scene Investigation

Harris County Sheriff’s Department Sergeant L. Holliday testified that he 

was the crime scene investigator for the December 1, 2012 burglary and 

kidnapping incident at the Villanuevas’ home. 

He first processed the home, finding it in disarray. Electronics were 

unplugged and stacked on the living room floor, items were strewn out of closets, 

and drawers from the dressers and nightstands had been dumped upside down on 
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the bed in the master bedroom. Holliday was left with the impression that the 

house had been thoroughly ransacked. He swabbed some blood-looking spots for 

DNA, and processed for fingerprints. Moving outside to examine Luis’s truck and 

the area around it, Holliday discovered adhesive tape with hair stuck in it crumpled

up in the foliage. 

When Holliday next arrived at the secondary crime scene where the white 

SUV was abandoned, he located a black glove on the ground. Appellant had been 

taken back to that scene, so Holliday photographed him, as he appeared to have 

blood on his clothing. Appellant told a different officer that he was six feet, six 

inches tall. When asked about the blood on him, appellant claimed it was his own 

blood. Holliday took appellant’s clothing into evidence, which included black 

colored baggy sweatpants, a white-colored muscle shirt, a black shirt, and black 

tennis shoes. Appellant also had his wallet and $5,900 cash in his possession when 

he was arrested. That cash was split into bundles and wrapped in small rubber 

bands. 

Holliday also processed the white SUV, a Jeep Liberty. In it, he found (1) a 

pillowcase (in a pattern he recognized from the Villanueva’s household) containing

a PlayStation game console and cell phone, (2) a couple of bullet-proof vests with 

the words “Police” on them, (3) a gold-colored badge labeled “Bounty Hunter,” (4) 

a bandana, (5) a walkie talkie, (6) a pistol-style shotgun, (7) baseball caps labeled 
8

“Narcotics,” “Police,” and “Sheriff,” (8) a brown purse containing a HandyCam 

Camcorder, two male wallets (one containing Luis Villanueva’s driver’s license)

and one female wallet (containing Yaneth Villanueva’s driver’s license), (9) duct 

tape, (10) a crowbar, (11) a revolver, (12) a pack of Newport cigarettes, (13) a 

glove, (14) another cell phone, and (15) cash tied together in bundles. 

Holliday asked Deputy Wyatt if he knew appellant’s cell phone number, and 

Wyatt indicated that he did. Holliday then asked Wyatt to call appellant’s phone 

number, and Wyatt’s call rang through to one of the cell phones Holliday found in 

the SUV. 

D. Appellant’s Statement

Deputy Wyatt conducted a taped interview of appellant. Appellant initially 

denied any involvement, despite having admitted already that he was running from 

the police. He later changed his story twice. 

He continued to deny being at the Villanuevas’ house, but he admitted that 

he had agreed to meet someone in the cul-de-sac and drive a vehicle for $350. He 

brought the bandana found in the Jeep to wipe the steering wheel clean because he 

did not like to leave his fingerprints anywhere. 

Appellant stated that he waited much longer than expected, but the white 

Jeep he was waiting for finally showed up. It drove into the cul-de-sac with police 

in pursuit. When the Jeep stopped and its occupants jumped out, appellant said he 
9

looked inside and saw bundles of cash held together with small pink and black 

rubber bands that he assumed were drug-house proceeds. He took some of the 

money, dropping his cell phone in the Jeep in the process. He then ran into the 

same wooded area as the men who had fled the Jeep. 

He admitted knowing that any situation in which was being paid $350 to 

drive a vehicle was not completely legitimate. He stated his stipulations for 

driving the SUV were (1) it not be stolen, (2) it be registered, (3) it not have drugs 

in it, and (4) the men previously driving it had not used it to kill anyone. He 

explained that the man who hired him to drive the vehicle often liked to quickly 

change out the car he drove in case he was being followed because of his drug 

dealing activities. 

Appellant then changed his story again, but continued to maintain that he 

had neither participated in any robbery, nor had he been to the Villanuevas’ house. 

He claimed some Mexican men he did not know picked him up in a black Dodge 

SUV, then took him to a side street around 3:00 a.m. and parked. Later, a little gray 

car pulled up behind them. The driver of the Dodge spoke into a walkie talkie to 

the person in the gray car. Thirty or forty minutes later, the white Jeep pulled up 

with a gray pickup truck behind it. Appellant got into the white Jeep, and the other 

occupants were talking about how someone would be calling the police. 
10

Appellant claims that no one was left behind in the gray pickup truck. 

According to appellant, five people were in the Jeep, and he described the police 

vests the other men had with them and the guns they carried. He admitted to 

taking a significant amount of cash, because one of the other men had dropped it in 

the Jeep and no one was paying attention. Appellant described the police pursuit 

of the Jeep, and how he and all the other occupants jumped out of the Jeep and fled 

into the woods. 

E. The Jury’s Verdict, the Trial Court’s Judgment, and Appellant’s 

Motion for New Trial

The Jury found appellant guilty of aggravated robbery. The punishment 

phase was to the court. The State introduced evidence of appellant’s prior 

convictions for aggravated assault of a police officer, unauthorized use of a motor 

vehicle, illegal license or certificate, and armed bank robbery. Appellant 

introduced sealed mitigating evidence. The court sentenced appellant to 55 years’ 

confinement.

Appellant filed a motion for new trial on the following grounds: (1) “The 

verdict was decided in a manner that was not a fair expression of the jurors’ 

opinion,” (2) “The jury verdict of guilty was against the weight of the law and the 

evidence,” and (3) “Witnesses exist whose testimony could have established the 

innocence of Defendant, [but] . . . were not called by trial counsel.” In addition to 

affidavits attached to the motion for new trial, the trial court took evidence and 
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testimony at a motion for new trial hearing. Ultimately, the trial court denied the 

motion, and appellant timely brought this appeal. 

ISSUES ON APPEAL

Appellant’s brief presents the following issues for our review:

I. “Appellant moved to suppress the audio recording of his interview with the 

deputy sheriff on the ground that he had asked to speak to a lawyer. Miranda 

requires that custodial interrogation must cease once the right to counsel has 

been invoked. However, the deputy sheriff continued the interview for a 

period of two hours. By the officer’s testimony, Appellant reasonably 

believed he was not free to leave. His request for a lawyer was not promptly 

honored. Admission of his statement was not harmless error even though 

there was other evidence linking him to the crime.”

II. “Appellant sought to impeach the credibility of Yaneth Villanueva by 

questioning her about the possibly illicit source of the money she had hidden 

in her closet and about her claiming of Medicare benefits to which she was 

not entitled. The court granted the State’s motion in limine on the ground 

that such questioning would amount to improper impeachment. The 

confrontation clause of the United States Constitution secures a defendant’s 

right to cross-examination to establish a witness’ bias, prejudice, or lack of 

credibility. The court’s ruling deprived Appellant of this right.”

III. “Appellant filed a motion for new trial on the ground that the jury verdict 

had been less than unanimous. A juror had said the guilty verdict was not 

hers when first polled, then said it was her verdict after further deliberation. 

Appellant offered witnesses to show the juror had been coerced by other 

jurors. Their testimony was excluded on grounds of hearsay and Rule 

606(b), TEX. R. EVID. However, during trial the court had questioned the 

juror because she seemed inattentive and unable to follow the testimony. 

Coupled with evidence presented at the new trial hearing that the juror 

suffered from continuing mental confusion, the court should have found that 

she had not been a competent juror and hence granted a new trial.”

IV. “The evidence was not legally sufficient to prove Appellant guilty of 

aggravated robbery beyond a reasonable doubt. The witnesses did not 

identify him and there was no direct evidence of his presence at the crime 

scene. Similarly, the evidence showed merely that Appellant had driven the 
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getaway car. No evidence was offered to show that he had knowingly 

entered into an agreement to assist the other suspects in committing an 

aggravated robbery.”

The State, by cross-point, requests “that this Court will reform the judgment 

and sentence in this cause to reflect that appellant pled true to the enhancement and 

that the trial court found it true,” to conform the written judgment to the record. 

MOTION TO SUPPRESS

Appellant filed a pre-trial motion to suppress his statements to police. In his 

motion, he specifically argued that the statements were (1) unconstitutionally taken 

while he was in custody, (2) made in violation of his right to have counsel present 

after he did not voluntarily waive that right, and (3) made without the safeguards 

required by article 38.22 of the Texas Code of Criminal Procedure. After the trial 

court listened to the recording of the police’s interrogation of appellant, it denied 

appellant’s motion, ruling his statements admissible. 

A. Applicable Law and Standard of Review

“The Fifth Amendment prohibits the government from compelling a 

criminal suspect to bear witness against himself.” Pecina v. State, 361 S.W.3d 68, 

75 (Tex. Crim. App. 2012) (citing U.S. CONST. amend V (“No person . . . shall be 

compelled in any criminal case to be a witness against himself.”)). In Miranda v. 

Arizona, the Supreme Court crafted safeguards to protect this “privilege against 

self-incrimination” in the inherently coercive atmosphere of custodial 
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interrogations. 384 U.S. 436, 441, 86 S. Ct. 694, 106 (1966). “Before questioning 

a suspect who is in custody, police must give that person Miranda warnings.” 

Pecina, 361 S.W.3d at 75. “Only if the person voluntarily and intelligently waives 

his Miranda rights, including the right to have an attorney present during 

questioning, may his statement be introduced into evidence against him at trial.” 

Id.

Once a suspect invokes the right to counsel, “all interrogation by the police 

must cease until counsel is provided or until the suspect himself re-initiates 

conversation.” Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995) 

(citing Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 491 (1990)). 

“The right to counsel is considered invoked where a person indicates he or she 

desires to speak to an attorney or have an attorney present during questioning.” 

Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989). “An invocation must 

be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’

without more, does not automatically invoke the right to counsel.” Dinkins, 894 

S.W.2d at 351; Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim. App. 1991).

“A trial court’s ruling on a motion to suppress lies within the discretion of 

the court.” Reed v. State, 227 S.W.3d 111, 115 (Tex. App.—Houston [1st Dist.] 

2006, pet. ref’d) (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.

1996)). “A trial court abuses its discretion if it refuses to suppress evidence that is 
14

obtained in violation of the law and that is, therefore, inadmissible.” Erdman v. 

State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993).

B. Analysis

In his first point of error, appellant contends that the trial court’s denying 

his motion to suppress was erroneous because police disregarded his invocation of 

his right to have a lawyer present during their taped custodial interrogation of him. 

Moreover, he insists that the trial court’s error was not harmless, as no eyewitness 

placed him at the scene of the robbery, and the circumstantial evidence against him 

was weak. 

The State responds that the trial court’s ruling was correct because appellant 

knowingly waived the right to have an attorney present. Our review of the 

recorded interview supports the State’s assertion. 

At the beginning of appellant’s taped interview, appellant stated that he 

knew his Miranda rights. The officer nonetheless explained each Miranda right—

including the right to have a lawyer present during questioning, the right to 

terminate the interview at any time, and the right to have a lawyer appointed if 

appellant could not afford to hire one. The officer also stopped after articulating 

each right to verify that appellant fully understood. 

Appellant asked “would it be cool” if they got a lawyer on the phone. The 

officer explained that would not work, as there would be no way to verify that the 
15

person on the phone was a lawyer, and explained again that if appellant wanted to 

speak to a lawyer or have a lawyer present for any questioning, the interview 

would stop right then. The officer reminded appellant that the decision was up to 

him. Appellant then asked what he would get out of participating in an interview, 

and the officer explained that it was appellant’s opportunity to tell his side of what 

happened.

The conversation was interrupted by a phone call that came in for the 

officer. When he returned, the following colloquy occurred:

Q. Do you want a lawyer or do you want to talk? It’s up to you.

A. I want to talk to you right now.

Q. Do you want a lawyer?

A. No, I don’t want my attorney here.

Q. You are waiving your right to have a lawyer?

A. Yeah, I want to talk. 

In Reed, we held that a defendant asking whether he could get a lawyer if he 

wanted one was not a clear invocation of his right to have counsel present during 

questioning. 227 S.W.3d at 115. In holding that the trial court did not abuse its 

discretion in denying the defendant’s motion to suppress his statement in that case, 

we explained our obligation to look at the totality of the circumstances in assessing 

if a waiver is voluntary and unequivocal:

Once an accused has invoked his right to counsel, all 

interrogation by the police must stop until counsel is provided or until 

the accused himself initiates contact with police. Dinkins, 894 S.W.2d 
16

at 350 (citing Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 

486, 491, 112 L. Ed.2d 489 (1990)). When an accused’s invocation is 

unclear, ambiguous, or equivocal, the interrogating officers are not 

required to automatically stop the interview. Lucas, 791 S.W.2d at 46. 

They may continue questioning the accused, but only to ascertain 

whether he wishes to speak to an attorney or continue the questioning 

without the assistance of counsel. Id. Police may not use such 

clarification as a guise to encourage, coerce, or intimidate the accused 

to make a statement. Jamail v. State, 787 S.W.2d 372, 377 (Tex.

Crim. App. 1990).

In reviewing an alleged invocation of the right to counsel, a 

reviewing court must look at the totality of the circumstances 

surrounding the interrogation and alleged invocation to determine 

whether an accused’s statement can be construed as an actual 

invocation of the right. Dinkins, 894 S.W.2d at 351. The inquiry is an 

objective one: whether a reasonable officer, under similar 

circumstances, would have understood the statement to be a request 

for an attorney or merely one that might be invoking the right to 

counsel. Id.

When the right to counsel has been invoked, it may be later 

waived, either expressly or through the actions of the accused. Lucas, 

791 S.W.2d at 46. Such a waiver must be (1) knowing, intelligent, and 

voluntary and (2) the product of contact initiated by the accused. 

Lucas, 791 S.W.2d at 46 (citing Smith v. Illinois, 469 U.S. 91, 95, 105 

S. Ct. 490, 492, 83 L. Ed.2d 488 (1984)).

Id. at 115–16. Here, the closest appellant came to invoking his right to a lawyer 

was asking if it would “be cool” if they got a lawyer on the phone to listen to the 

interview. This was not a clear, unequivocal invocation of the right to have an 

attorney present. Thus, consistent with our instructions in Reed, the officer 

continued the interview, but confined his questions to ascertaining “whether he 

wishe[d] to speak to an attorney or continue the questioning without the assistance 
17

of counsel.” Id. at 115. At that point, appellant expressly waived his right to have 

counsel present. 

Finally, appellant contends that introduction of his statement violated article

38.22 of the Texas Code of Criminal Procedure, which governs the admissibility of 

a defendant’s recorded statements. Although he does not articulate how this article 

was allegedly violated, we need not attempt to glean the basis for this argument, as 

he did not object to admission of the statement at trial. In fact, his attorney stated 

he had no objection to its admission, subject to agreed-upon redactions. See, e.g.,

Rosales v. State, 335 S.W.3d 284, 287–88 (Tex. App.—San Antonio 2010, pet. 

ref’d) (“In order to preserve error for review, an objection that the statement was 

taken in violation of section 38.22 must be specifically made . . . . Here, because 

Rosales affirmatively stated he did not have an objection to the entry of the oral 

statement, we conclude that he has waived his right to complain.”).

Because we conclude that the trial court did not abuse its discretion in 

denying appellant’s motion to suppress, we overrule appellant’s first point of error. 

ADMISSION OF EVIDENCE

Prior to trial, the State served appellant with a Brady v. Maryland1

disclosure, about the “financial status of the complaining witness.” Specifically, 

 

1 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963) (“[T]he suppression by the 

prosecution of evidence favorable to an accused upon request violates due process 
18

the notice stated that: “The victims in this case saved $30,000 by cashing a portion 

of their checks to keep separate from their bank accounts and made no disclosure 

to the State. This was done so that they could continue to receive State benefits.” 

The trial court granted the State’s motion in limine on this topic, requiring the 

parties to approach the judge before mentioning to the jury “the source of the 

money stolen from the complainants’ house in this case.” 

At a pretrial hearing, appellant argued that the source of the money was 

relevant because it was kept in a way (i.e., tied with hair bands) that is consistent 

with drug-dealing proceeds, and that—if the complainants were committing 

Medicare fraud—the fact they were hiding money goes to their character and 

truthfulness. The State countered that it did not intend to go into the source of the 

money, and that the source of the money would not be a proper subject of 

impeachment. The State conceded that the veracity of the truthfulness of the 

complaining witnesses was an issue at trial. The State insisted, however, that if 

appellant wanted to impugn the credibility of the complainants, he could do so by 

calling witnesses that could testify that the complainants had a reputation for being 

untruthful or drug dealers, but that evidence about specific bad acts was not 

admissible as character evidence. The court agreed, stating that it would be 

improper as impeachment evidence. 

 

where the evidence is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.”).
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During cross-examination of Yaneth, appellant’s counsel questioned her 

about both her and her husband’s work history. When counsel asked her if they 

“were receiving any Government assistance during the time” that they were both 

working, the State objected to relevance, which the court sustained. Outside the 

presence of the jury, appellant argued that he should be able to broach the subject 

of the source of the stolen money because she made prior inconsistent statements 

to different district attorneys. The trial court allowed a Bill of Review:

[APPELLANT’S ATTORNEY]: Your Honor, at this time I

would like to make a Bill of Review regarding the State’s Motion in 

Limine. This witness has testified that she has consistently told the 

District Attorneys the same particular thing. We have a pending 

Motion in Limine that acts -- which this Court has ruled upon

prohibiting me from going into the source of the particular money. 

She’s already testified she’s told everybody the same thing. I would 

like to put on the record her testimony as to what she said and where 

the inconsistencies are because I believe it should come into evidence.

THE COURT: You may proceed.

Q. Okay. Now, Ms. Villanueva, you talked to an investigator 

the night it happened; isn’t that correct?

A. That morning, yes, sir.

Q. All right. And since then you’ve talked to three different 

District Attorneys, have you not?

A. Yes, sir.

Q. And you’ve -- and it’s your testimony that you’ve told all of 

them the same particular thing; is that correct?

A. Yes, sir.

Q. Okay. I was given notice on money [sic] that you had

informed [State’s attorney] that the source of this particular money 

was from you working, but you were not putting your money in the 
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bank as to receive -- to continue receiving State benefits; is that 

correct?

A. Yes, sir.

Q. Did you tell all the -- the other two prior District Attorneys 

the same thing?

A. I don’t remember mentioning it.

Q. You don’t remember mentioning it. So, you did not tell them 

that?

A. I might have. I’m not sure. 

Q. Okay. All right. But you’re certain you told [State’s

attorney] that?

A. Yes, sir.

Q. And you told him that after he had pressed you repeatedly as 

to the source of these particular funds; is that correct?

A. Can you repeat?

Q. You told him that once he repeatedly pressed as to where 

you got the $30,000 from; is that correct?

A. I don’t understand your question.

Q. All right. Initially you didn't tell anybody that you were 

saving this particular money so you could continue to receive State 

benefits; is that correct?

A. I’m not sure if I mentioned it to the detectives. I’m not sure.

Q. Okay. And you’re not sure if you mentioned it to the District 

Attorney?

A. The other attorneys didn’t ask me.

Q. They didn't ask. And you didn’t volunteer it either, did you?

A. No, sir.

Q. Okay. So, it'’s safe to assume you didn’t tell anybody about 

this until [State’s attorney]?

A. Yes, sir.
21

Q. Of course, you knew what you were doing was to

circumvent the system so you could continue receiving State benefits; 

is that correct?

A. Yes, sir.

. . . .

Q. And you did that knowing that had you put the money in the 

bank or reported the income, you would not be eligible to receive 

these State benefits; is that correct?

A. Yes, sir.

Q. Okay. All right. And again, you finally made this revelation 

to [State’s attorney] on Monday, was it, of this week?

A. I’m not sure when we met. I can’t remember when we met.

Q. So, you can’t remember if you met with [State’s attorney]

this week or last week; is that correct?

A. I think it was -- it was last week.

Q. So, it was last week. What day last week was it?

A. Thursday.

Q. Thursday. Okay. All right. And are you continuing to 

receive State benefits?

A. No, sir.

Q. Okay. All right. But at the time that you were saving this 

particular money, you were receiving these benefits and you knew had 

you reported the particular income, you wouldn’t be eligible to 

receive these benefits; is that correct?

A. Yes, sir.

. . . .

REDIRECT EXAMINATION

[STATE’S ATTORNEY]. You didn’t recall anybody ever 

asking you that question of why you had $30,000?

A. I remember the detectives asked me, but I can’t remember if 

I mentioned that.

Q. Okay.
22

A. It had just happened. So, I was --

Q. The first District Attorney, whoever asked you where the 

money came from, was me? That you can remember?

A. That I can remember, yes.

. . . .

RECROSS-EXAMINATION

[APPELLANT’S ATTORNEY]: And when you spoke to the 

detective when you first gave a statement -- well, let me ask you this

first: Did your husband know that you had this money?

A. He knew we had money. He didn’t know how much. 

Q. Okay. And didn’t, in fact, you tell this detective that your 

husband didn't even know you had the money? Didn’t you tell him 

that?

A. No. I told him he knew we had money, but he didn’t know 

the amount.

Q. Okay. So, you never told the detective that no one, not even 

your husband knew about the money?

A. No, sir.

A. Applicable Law and Standard of Review

The general rule is that “[e]vidence of a crime, wrong, or other act is not 

admissible to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.” TEX. R. EVID. 

404(b)(1). “In a criminal case, subject to the limitations in Rule 412 [limiting 

evidence about sexual assault victim’s prior conduct], a defendant may offer 

evidence of a victim’s pertinent trait, and if the evidence is admitted, the 

prosecutor may offer evidence to rebut it.” Id. 404(a)(3)(A). “Any party, including 

the party that called the witness, may attack the witness’s credibility.” Id. 607. 
23

“Except for a criminal conviction under Rule 609 [allowing impeachment by 

evidence of certain criminal convictions], a party may not inquire into or offer 

extrinsic evidence to prove specific instances of the witness’s conduct in order to 

attack or support the witness’s character for truthfulness.” Id. 608. Rather, 

“[w]hen evidence of a person’s character or character trait is admissible, it may be 

proved by testimony about the person’s reputation or by testimony in the form of 

an opinion.” Id. 405(a)(1). If such evidence is admissible and admitted, “[o]n 

cross-examination of the character witness, inquiry may be made into relevant 

specific instances of the person’s conduct.” Id. “When a person’s character or 

character trait is an essential element of a charge, claim, or defense, the character 

or trait may also be proved by relevant specific instances of the person’s conduct.” 

Id. 405(b).

“Irrelevant evidence is not admissible.” Id. 402. “Evidence is relevant if (a) 

it has any tendency to make a fact more or less probable than it would be without 

the evidence; and (b) the fact is of consequence in determining the action.” Id. 

401. A court may exclude even relevant evidence “if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice [or] confusing the 

issues.” Id. 403.

The trial court is given wide latitude to admit or exclude evidence of 

extraneous offenses. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. 
24

App. 1990); Poole v. State, 974 S.W.2d 897, 897 (Tex. App.—Austin 1998, pet. 

ref’d). A reviewing court must therefore recognize that the trial court is in a 

superior position to gauge the impact of the relevant evidence and not reverse a 

trial court’s ruling if it is within the “zone of reasonable disagreement.” Mozon v. 

State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 

391.

Absent exclusion of evidence that amounts to a constitutional error that 

prevents a defendant from effectively presenting a defense, erroneous exclusion of 

evidence is subject to harm analysis under Rule 44.2(b) of the Texas Rules of 

Appellate Procedure. Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). 

“When evaluating harm from non-constitutional error flowing from the exclusion 

of relevant evidence, we examine the record as a whole, and if we are fairly 

assured that the error did not influence the jury or had but a slight effect, we 

conclude that the error was harmless.” Id. (citing Morales v. State, 32 S.W.3d 862, 

867 (Tex. Crim. App. 2000)).

B. Analysis

In his second point of error, appellant complains that the trial court’s 

exclusion of evidence related to the source of the Villanuevas’ money and why it 

was kept in their home was an abuse of discretion. Specifically, appellant argues 

that the source of the stolen funds and the apparent fraud on Medicaid were 
25

relevant to impeaching the credibility of the Villanuevas. He contends that the 

purpose of this line of inquiry was to demonstrate that Yaneth had committed fraud 

and then made conflicting statements to prosecutors to conceal what she had done. 

In addition, appellant asserts that Yaneth’s accumulation of the money at issue 

made it likely that the Villanuevas were involved in drug trafficking. According to 

appellant, “[q]uestioning the Villanuevas about possible criminal activity could 

have shown that they had powerful motives to shade their testimony: to curry favor

with law enforcement, portray themselves as victims, and fend off prosecution for 

Medicaid fraud and possible drug trafficking.” See Davis v. Alaska, 415 U.S. 308, 

94 S. Ct. 1105 (1974) (cross-examination of witness about probation status was 

permissible because it could show that the probation gave the witness a motive to 

help the police and shift suspicion away from himself). Finally, appellant claims 

he was harmed by this limiting of cross-examination because Yaneth “was the only 

witness who could testify to the amount of the money and the only witness who 

could say that the cash was bound in hairbands,” given that the money found on 

appellant was also bound in hairbands.

The State notes that appellant was able to ask a testifying officer about

whether the Villanuevas’ money was bound in a way consistent with drug-dealing 

operations. The officer agreed, and said it was also similar to how money is kept 

by convenience stores and other places with large amounts of money. The State
26

also argues that the evidence was neither relevant, nor proper impeachment or 

character evidence. We agree with the State. 

First, neither the source of the money stolen from the Villanuevas nor their 

hiding money from Medicaid satisfies the relevancy test on the facts of this case. 

No one disputes that the aggravated robbery took place. The only issue to be 

proven at trial was who committed that robbery. The source of the stolen money or 

other bad acts by the Villanuevas did not make it more or less likely that appellant 

was the perpetrator of the crime with which he was charged. 

Likewise, the evidence was not proper impeachment evidence. Appellant 

claimed that the line of questioning about the source of the money was relevant to 

impeachment because Yaneth allegedly “made conflicting statements to 

prosecutors to conceal what she had done.” Yaneth’s testimony during the bill of 

review, however, does not support this assertion. She did not recall making any 

earlier statement to any district attorney about the source of the funds.

The fact that the Villanuevas did not identify appellant as a participant in the 

robbery renders appellant’s argument—i.e., that they had “powerful motives to 

shade their testimony: to curry favor with law enforcement, portray themselves as 

victims, and fend off prosecution for Medicaid fraud and possible drug 

trafficking”—unpersuasive. Implicit in this argument is that Yaneth had a motive 

to lie about being robbed, as that is the only thing she testified about. But even 
27

appellant’s theory of the case did not dispute that the robbery took place, so we do 

not agree that allowing appellant to cross-examine Yaneth about the source of the 

stolen money would have revealed a motive to lie about any relevant facts she 

testified about. And other courts have affirmed the exclusion of similar evidence 

in the face of defendants’ argument that a complainant’s status as a drug dealer or a 

complainant’s motive to curry favor with police was relevant to character and 

impeachment. See, e.g., Hoyos v. State, 951 S.W.2d 503, 507 (Tex. App.—

Houston [14th Dist.] 1997), aff’d 982 S.W.2d 419 (Tex. Crim. App. 1998) (holding 

trial court properly denied request to cross-examine the complainant regarding her 

reputation as a drug dealer to show she was robbed by someone else who knew 

about her proceeds or to confront her claiming she was in a vulnerable position 

because of her daughter’s dismissed drug charge because the evidence was 

irrelevant and would confuse the issues); Oville v. State, No. 03-98-00382-CR, 

1999 WL 298319, at *2 (Tex. App. —Austin May 13, 1999, no pet.) (mem. op., 

not designated for publication) (holding evidence that complainants were drug 

users and dealers was not relevant or admissible in defense of robbery because 

“[t]he taking of [the complainants’] property at knife point was still aggravated 

robbery, even assuming their possession of the property was unlawful”).

For many of the same reasons that we have held the source of the stolen 

money and alleged Medicare fraud is not relevant, we conclude that the exclusion 
28

of this evidence was not harmful to appellant. Two other witnesses testified to the 

same matters Yaneth did, i.e., details of the robbery. Appellant makes much of the 

fact that Yaneth testified that the stolen money was bundled in hairbands, which 

matches how the money found on appellant’s person was bundled. But a crimescene investigator testified to finding money in the get-away vehicle bundled in 

hairbands. All of the other evidence implicating appellant came from the physical 

evidence and appellant’s own statements, not Yaneth’s testimony. Appellant’s 

phone was found in the same vehicle as the Villanuevas’ wallets and other items 

taken from their home. Appellant’s story was that he was only in the get-away car, 

but that he did not participate in the robbery. The matters about which appellant 

wanted to cross-examine Yaneth were unrelated to the question of whether 

appellant participated in the robbery or only found out about it and became 

involved after the fact. Thus, appellant cannot show that exclusion of this evidence 

influenced the jury. Ray, 178 S.W.3d at 836.

We overrule appellant’s second point of error. 

JURY’S VERDICT

Appellant filed a motion for new trial, arguing that the “verdict was decided 

in a manner that was not a fair expression of the jurors’ opinion.” In support, the 

motion stated: 

A juror, when polled, stated that the guilty verdict was not her verdict. 

The jury resumed deliberation and again returned a guilty verdict. The 
29

same juror entered the courtroom and said that the guilty verdict was 

not her verdict. She said that she had been coerced by the other jurors 

to agree to a guilty verdict.

Dorothy Hunt (appellant’s mother) and Jeremy Engel (a friend of 

appellant’s) wrote letters to the trial court in support of this assertion. Both letters 

stated that Juror Number 1 came into the courtroom after the jury was dismissed 

and said that she was bothered by what had happened, she disagreed with the 

verdict, but she was nonetheless pressured by the jury foreman to convict 

appellant. 

Hunt and Engel were called as witnesses at the Motion for New Trial 

hearing, but the court sustained objections to their testimony on the basis of 

hearsay. The court allowed appellant’s attorney to make the following bill of 

review about what Hunt and Engel would have testified to if allowed: 

Mr. Engel states that he observed the trial and was deeply 

disturbed at what he witnessed following the conclusion of the trial 

after the Court had passed sentence. Mr. Engel would say that when 

initially polled, the juror, one juror announced that the verdict of 

guilty was not her verdict. The Court retired the jury again and 

ordered them to continue deliberating. There was a second polling of 

the jury at which the juror said that it was her verdict.

After the trial was concluded, Mr. Engel witnessed the very 

same juror come back into the courtroom and heard her state that she 

was pressured and intimidated by other jurors and that the jury 

Foreman had forced her to say that the verdict, her verdict was guilty 

even though it was not.

Mr. Engel states that the juror, when she made these statements 

to the Court after the passing of sentence appeared to be distraught, 

visibly disturbed, agitated. He described her as shook up.
30

The same juror again approached Mr. Engel outside the 

courthouse after the conclusion of the trial and restated her feelings 

that she had been forced, coerced and pressured and that the verdict 

that was entered was not her verdict.

Ms. Hunt is the mother of the Defendant, Sam Fletcher. She 

was present for the trial. She was present in the courtroom when the 

jury returned its verdict and when the Court passed sentence.

She states that someone came up to her in the hall outside the 

courtroom trying to get her attention at least three times saying, “I 

don’t know what to do,” that this person who approached Ms. Hunt 

was known to her to be one of the 12 jurors. This person appeared to 

be upset, distraught, excited and confused.

She -- Ms. Hunt would further state that the juror went into the 

courtroom and tried to make the Court aware that -- and in particular 

the Judge aware that the verdict that was entered was not her verdict, 

that she had been pressured or coerced by the other jurors into 

entering that verdict and that that was not her verdict.

The State called S. Williams, a paralegal for the District Attorney’s office, to 

refute appellant’s counsel’s recitation of events related to the juror who changed 

her vote. Williams testified that she was present both times the jury was polled 

after announcing its verdict, and she confirmed that the juror at issue stated that 

“guilty” was not her vote the first time polled, but after further deliberations, she 

confirmed that “guilty” was then her vote. 

Williams’s version of the interaction between the juror and appellant’s 

mother and friend differed from that represented by appellant’s counsel in his bill 

of review. Williams saw the juror, accompanied by appellant’s mother and a 

person who had sat with appellant’s family throughout the trial, come back into the 

courtroom. At that point, neither the State’s attorney nor appellant’s attorney were 
31

in the courtroom. Williams explained that appellant’s mother “was on one side of

the juror and the other guy was on the opposite side of the juror. They were both 

holding her and they were both speaking to her at the same time. It kind of seemed 

like they were bulldozing over her.” Williams described their manner towards the 

juror as “aggressive.” Williams explained that when the bailiff intervened, 

appellant’s family was aggressive towards him as well. The bailiff was able to 

separate the juror from appellant’s family by escorting her out into the hallway. 

Bailiff H. Graviel also testified at the hearing that he saw appellant’s family 

trying to forcefully bring the juror into the courtroom. After Graviel separated the 

juror from appellant’s family to prevent things from “escalat[ing] further,” Graviel 

told the juror that if she wanted to speak to the district attorney or appellant’s 

attorney, Graviel would bring them out to the hallway to speak to her. The juror 

responded that she wanted to leave and did not want to speak to anyone. 

The trial court denied appellant’s motion for new trial, and made the 

following findings of fact and conclusions of law in support:

1. The applicant’s claim that the verdict was decided in a manner 

that was not a fair expression of the jurors’ opinion is without 

merit. 

2. The record reflects that despite one juror’s initial response that 

the verdict was not unanimous, after additional deliberation, 

when the guilty verdict was taken, each juror responded that 

“this was [their] verdict.”

3. No juror was present at the motion for new trial hearing.
32

4. No evidence of any kind was presented of any outside influence

upon the jury.

5. No evidence of any kind was presented that any juror was not 

qualified to serve.

6. The only evidence presented at the motion for new trial was 

that the same juror who had initially stated that the guilty 

verdict was not her verdict entered the courtroom after 

sentencing.

7. The court did not consider any statement (which was attempted 

to be entered into evidence via either hearsay or a bill of 

exception) which purported to be an inquiry into the validity of 

the verdict, in accordance with Tex. Rule Evid. 606.

8. The evidence presented at the motion for new trial 

demonstrated that the defendant’s mother and friend were 

aggressive with the juror after sentencing and Deputy 

Hernandez, the bailiff, intervened.

9. According to the credible testimony of Deputy Hernandez, 

Hernandez separated the juror from the defendant’s supporters, 

and gave the juror the opportunity to wait to speak with the 

State, the defense attorney, and/or the judge, and the juror 

declined.

10. The evidence demonstrates the verdict was decided in a regular 

manner, and was a fair expression of the juror’s opinion.

A. Applicable Law and Standard of Review

A defendant cannot be convicted of a crime by less than a unanimous jury 

verdict. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). A motion for 

new trial is reviewed on an abuse of discretion standard. McQuarrie v. State, 380 

S.W.3d 145, 150 (Tex. Crim. App. 2012). To find an abuse of discretion, the trial 

court’s ruling must be shown to be arbitrary or unreasonable. Holden v. State, 201 

S.W.3d 761, 763 (Tex. Crim. App. 2006). To support a motion for new trial based 
33

on juror misconduct, affidavits or other evidence must be offered. Tinker v. State, 

148 S.W.3d 666, 673 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

For purposes of the hearing, the judge alone determines the credibility of the 

witnesses. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). Rule 

606(b) of the Texas Rules of Evidence prohibits “disgruntled juror” evidence. The 

only exception is evidence of “an outside influence” on a juror, i.e. “something 

originating from a source outside of the jury room and other than from the jurors 

themselves.” McQuarrie, 380 S.W.3d at 154. The policy reasons supporting these

limitations have been explained by the Court Criminal Appeals: 

Mr. Aguilera’s post-trial testimony that his desired verdict had been 

“not guilty” was inconsistent with his trial-time statement that the 

guilty verdict was “unanimous.” The policy of upholding the finality 

of verdicts was served in this case by polling the jury. At that time, 

Mr. Aguilera said that he agreed with the guilty verdict. After the 

jurors were excused, the time for post-verdict doubts had passed. 

Given Mr. Aguilera’s shifting testimony, a reasonable fact finder 

could have concluded that the juror had been somewhat reluctant at 

the time of the verdict, but it was not until after weeks of reflection 

that he decided that he wanted to change his vote. This is precisely the 

type of “disgruntled juror” who suffers buyer’s remorse that Rule 

606(b) prohibits from testifying to impeach his own verdict. A juror’s 

vote, when polled in open court, is a “final sale” item; it cannot be 

exchanged because that juror later has buyer’s remorse.

Colyer, 428 S.W.3d at 126.

B. Analysis

In his third point of error, appellant argues that the trial court should have 

granted his motion for new trial because the jury’s verdict was non-unanimous 
34

given that Juror Number 1 told his mother and friend that she had been pressured 

into agreeing to a “guilty” verdict. Additionally, in his brief here, appellant argues 

that the court should have removed Juror Number 1 mid-trial after the court 

questioned her about “appear[ing] sleepy, inattentive, and often had her eyes 

closed.” Appellant acknowledges that (1) Juror Number 1 told the court that, 

despite her sleepy appearance, she had heard all of the evidence and stated she 

thought she could come to a fair verdict and (2) rather than seek to have her 

removed from the jury at that point, appellant actually objected when the State 

moved to have her replaced with an alternative juror.

The State responds that “The record before the trial court more than 

supported the conclusion that the verdict reached was a fair determination of the 

issue reached by a unanimous jury as indicated by the unanimous agreement of 

every juror during the polling the trial court obtained before it accepted the 

verdict.” We agree.

The trial court has broad discretion in ruling on a motion for new trial. 

McQuarrie, 380 S.W.3d at 150. And the trial court is the sole judge of credibility

of witnesses at a motion for new trial hearing. Colyer, 428 S.W.3d at 122. Here, 

the trial court made specific findings that bailiff Hernandez’s testimony was 

credible, and that Hernandez had to intervene when appellant’s supporters became 

aggressive with Juror Number 1. The court also found, as is supported by the 
35

record, that (1) the jury’s verdict was unanimous and (2) no evidence was 

presented of any outside influence upon the jury or that any juror was not qualified 

to serve. Accordingly, the trial court did not abuse its discretion in denying 

appellant’s motion for new trial. 

We overrule appellant’s third point of error. 

SUFFICIENCY OF THE EVIDENCE

A. Applicable Law and Standard of Review

The jury was charged with the definition of aggravated robbery under 

section 29.03(a)(2) of the Texas Penal Code, providing that a “person commits an 

offense if he commits robbery . . . . and he uses or exhibits a deadly weapon,” and

on the law of the parties under section 7.02(a)(2) of the Texas Penal Code, 

providing that 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.” 

When reviewing whether there is legally sufficient evidence to support a 

criminal conviction, the standard of review we apply is “whether, after viewing the

evidence in the light most favorable to the prosecution, 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, 319, 99 S. Ct. 2781, 2789 (1979) (emphasis in 
36

original). This standard tasks the factfinder with resolving conflicts in the 

testimony, weighing the evidence, and drawing reasonable inferences from basic 

facts. Id. On appeal, reviewing courts “determine whether the necessary inferences 

are reasonable based upon the combined and cumulative force of all the evidence 

when viewed in the light most favorable to the verdict.” 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 

verdict, and we defer to that determination. See Murray v. State, 457 S.W.3d 446, 

448–49 (Tex. Crim. App. 2015) (citing Hooper v. State, 214 S.W.3d 9, 12 (Tex.

Crim. App. 2007)). Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be 

sufficient to establish guilt. Guevara, 152 S.W.3d at 49.

B. Analysis

Appellant argues that there is no evidence that he himself was present at the 

Villanuevas’ home, as no one at the scene positively identified him. He also notes 

that his fingerprints were not found on the items in the Jeep. He contends that no 

rational trier of fact could have found him guilty of aggravated robbery as a 

participant or a co-conspirator because, at most, the evidence demonstrated that he 

admitted to driving the get-away vehicle.
37

Appellant’s argument does not take into account all of the evidence—direct 

and circumstantial—before the jury. Appellant does not dispute that an aggravated 

robbery took place at the Villanuevas’ house, or that the Jeep was the get-away car 

that contained all the instrumentalities, weapons, and spoils of that robbery. 

Appellant was dressed in black and is similar in size and description to the 

descriptions given by the robbery victims. Appellant changed his story, first 

claiming he was not involved at all, then claiming he was hired by a drug dealer to 

move a vehicle from one location to another for $350. Then he changed his story 

completely, claiming that he was picked up by men he did not know, waited a 

significant amount of time for a white Jeep to show up, got into the Jeep and ran 

from the police. 

Appellant’s cell phone was found in the Jeep, and he had thousands of 

dollars cash in his possession bundled in the same manner as the money stolen 

from the Villanuevas’ home. He offered varying accounts of how his cell phone 

ended up in the Jeep (first that he dropped it reaching into the vehicle, and then that 

he dropped it because he was riding in or driving the Jeep) and how he ended up 

with $5,900 in cash bundles (first that he stole it from the Jeep after spotting it 

through the window, and then that he stole it from the floorboard of the vehicle 

because one of the robbers dropped it there and the robbers were not paying 

attention to it). 
38

Given the Jeep’s undeniable association with the robbery, the victims’ 

descriptions of the perpetrators, and appellant’s ever-changing story, a rational jury 

could have determined that appellant participated in the robbery or—at a 

minimum—intended to aid those who did. A rational jury could have disbelieved 

that he just happened to be picked up on a side street by people he did not know, 

waited until robbers arrived in the white Jeep, and then hopped into the Jeep 

crowded with people and loaded with police garb, firearms, electronics and money

without any prior knowledge of, or plan to assist with, the robbery. The jury could 

also plausibly have believed that the $5,900 in appellant’s possession was 

appellant’s cut of the robbery proceeds rather than money he managed to steal 

undetected off the floor of a vehicle crowded with people while in a police chase. 

Because a rational jury could have found appellant guilty beyond a reasonable 

doubt, appellant has not demonstrated that there is insufficient evidence to support 

his conviction. 

We overrule appellant’s fourth point of error.

REFORMATION OF THE JUDGMENT

 At the beginning of the sentencing hearing, the following exchange took 

place: 

[THE STATE]: . . . . “Before the commission of the offense 

alleged above, on April 16th of 1996, in Cause No. 9416659 in the 

339th District Court of Harris County, Texas, the Defendant was 

convicted of the felony offense of aggravated assault, peace officer.”
39

THE COURT: How do you plead to the enhancement 

paragraph? Do you plead true or not true?

THE DEFENDANT: True.

THE COURT: A plea of true will be received. You may be 

seated.

The trial court then admitted into evidence a “Stipulation of Evidence,” 

signed by appellant and his counsel, stipulating to four prior convictions, including 

the one the subject of the sentencing enhancement. Finally, the “Judgment 

Adjudicating Guilt” for the aggravated assault of a police officer that was the 

subject of the sentencing enhancement was admitted into evidence with no 

objection. 

The court’s written judgment, however, contains “N/A” in the spaces for 

“Plea to 1st Enhancement Paragraph,” and “Findings on 1st Enhancement 

Paragraph.” The State thus contends, correctly, that the “trial court’s judgment 

does not accurately reflect the events which occurred in the trial court.” As the 

State notes, “[appellant] pled true to the enhancement, the trial court accepted his 

plea, and the inference is that the trial court found the enhancement true.” See 

Donaldson v. State, 476 S.W.3d 433, 439 (Tex. Crim. App. 2015) (recognizing 

appellant’s plea of “true” to an enhancement allegation is sufficient to satisfy 

State’s burden of proof for enhancement, and “in the absence of any other evidence 

that the trial court rejected the State’s proof on the enhancement or that 
40

enhancement would be improper,” would also support implied finding of “true” by 

trial court).

We have the authority to “correct and reform a judgment of the court below 

to make the record speak the truth when it has the necessary data and information 

to do so.” Asbury v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. 

ref’d); TEX. R. APP. P. 43.2(b) (“The court of appeals may modify the trial court’s 

judgment and affirm it as modified.”). “The authority of an appellate court to 

reform incorrect judgments is not dependent upon the request of any party, nor 

does it turn on the question of whether a party has or has not objected in the trial 

court.” Asbury, 813 S.W.2d at 529.

Accordingly, we grant the State’s request that we reform the judgment to 

reflect that appellant pleaded “true” to the enhancement and that the trial court 

found it “true.” 

CONCLUSION

We affirm the trial court’s judgment as modified. 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).