Affirmed and Memorandum Opinion filed May 2, 2013.

In the

Fourteenth Court of Appeals

NO. 14-12-00297-CR

REGINALD TYRONE LOVILLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1335342

M E M O R A N D U M O P I N I O N

Appellant Reginald Tyrone Loville was convicted by a jury of robbery. On 

appeal, he presents five issues: (1) whether the trial court violated appellant’s

confrontation clause right during the punishment phase by admitting testimonial 

hearsay; (2) whether the trial court committed reversible error by not allowing 

appellant to ask certain venire members a particular question during voir dire; (3) 

whether the jury charge violated appellant’s right to a unanimous jury verdict; (4) 
2

whether the trial court committed reversible error by including surplusage in the 

jury charge that negated the mental state required to commit robbery by threat; and 

(5) whether the evidence is legally insufficient to support appellant’s conviction for 

robbery by threat. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for the felony offense of robbery, alleged to have 

been committed on or about May 21, 2011.

At trial, the complainant Lisa Madrid, an asset protection coordinator 

employed by Wal-Mart, testified that on May 21, 2011, she followed appellant, a 

suspected thief, toward the store’s garden center exit. Appellant was pushing a 

shopping cart filled with unboxed monitors and a flat-screen television. Madrid 

approached appellant in an attempt to stop him from exiting the store. According 

to Madrid, when she grabbed appellant’s cart, she saw a stun gun or taser “on the 

left side of his hand[sic].” Madrid also heard “the buzzing sound of the taser.” 

Madrid testified that when she saw and heard the taser, she “was scared of being 

hurt.” Appellant then thrust at Madrid with the taser and made contact “on the side 

of [her] leg.” As Madrid jumped back, one of her co-workers was attempting to 

follow appellant to a vehicle in order to get the license plate number. Madrid tried 

to tell her co-workers and “everybody” to “stay back because [appellant] had a 

weapon.” Appellant also “tased” a Wal-Mart customer who was attempting to 

prevent appellant from loading the television into the vehicle. Later, Madrid 

realized that she had been shocked when she felt her “pocket was burning her leg.” 

When Madrid retrieved her cell phone from her pocket, the phone was “steaming” 

hot, she saw “smoke” when she flipped open the phone, and two numbers on the 

pad were melted.

Based on the license plate information, Officer Hardy with the Houston 
3

Police Department’s robbery division determined that the vehicle was a white 

Pontiac Sunfire; Reginald Loville was listed on the purchase agreement. Police

then discovered that the Sunfire had been repossessed. Further investigation by 

Detective Braune, the division officer assigned to lead this case, resulted in 

appellant’s arrest. When appellant was arrested, he had a taser in his pants pocket.

According to the jury charge, which tracked the indictment, the jury could 

convict appellant of robbery if it found that appellant, while in the course of 

committing theft of property owned by Madrid, and with intent to obtain or 

maintain control of the property, intentionally or knowingly threatened or placed 

Madrid in fear of imminent bodily injury or harm: by threatening to shock Madrid 

with an electroshock weapon; by attempting to shock Madrid with an electroshock 

weapon; by threatening to shock Madrid with a stun gun; or by attempting to shock 

Madrid with a stun gun. The jury returned a verdict of guilty.

During the punishment phase, appellant pleaded true to two prior felony 

enhancement paragraphs for robbery and cocaine possession. The State presented 

evidence of appellant’s other prior convictions, including four for theft, two for 

burglary of a motor vehicle with intent to commit theft, burglary of a vehicle, three 

for unauthorized use of a motor vehicle, possession of a controlled substance with 

intent to deliver, delivery of a simulated controlled substance, evading arrest, and 

resisting arrest. Both Hardy and Braune testified regarding their involvement in an 

investigation of approximately ten robberies occurring within a one-week period in 

May 2011; the May 21 incident for which appellant was on trial was the “master” 

case. According to the officers, almost all the robberies under investigation 

involved a white Pontiac Sunfire, most involved a suspect fitting appellant’s 

description, and approximately seven involved use of a taser. The State also 

presented testimony from various individuals, including Wal-Mart and Sam’s Club 
4

store employees and managers, as well as other victims, regarding the string of 

robberies occurring during that same time period in May. Some of these 

individuals identified appellant as the perpetrator, while others provided testimony 

regarding the involvement of a white Pontiac Sunfire and/or a taser. The trial court 

provided a limiting instruction indicating that the State was required to prove 

appellant’s involvement in any extraneous offenses beyond a reasonable doubt. 

The jury assessed appellant’s punishment at life in prison.

On appeal, appellant presents the following issues: (1) whether the trial court 

violated his confrontation clause right by allowing testimonial hearsay during the 

punishment phase; (2) whether the trial court committed reversible error by not 

allowing appellant to ask certain venire members an additional question during 

voir dire; (3) whether the jury charge violated appellant’s right to unanimity; (4) 

whether the jury charge included surplusage that improperly negated the mental 

state required for robbery by threat; and (5) whether the evidence is legally 

insufficient to support appellant’s conviction for robbery by threat.

II. ANALYSIS

A. Legal sufficiency of evidence to support robbery by threat

We address appellant’s fifth issue first because, if sustained, it would require 

us to reverse and render an acquittal, not remand for a new trial and/or a new 

punishment phase, as would appellant’s other issues. See Campbell v. State, 125 

S.W.3d 1, 5 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

1. Standard of review

In evaluating a legal insufficiency claim attacking a jury’s finding of guilt, 

we review all the evidence in the light most favorable to the verdict. Jackson v. 

Virginia, 443 U.S. 307, 319 (1979); Burton v. State, 230 S.W.3d 846, 852 (Tex. 
5

App.—Houston [14th Dist.] 2007, no pet.). We do not ask whether we believe the 

evidence at trial established guilt beyond a reasonable doubt, but instead we only 

determine whether any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318–19; Burton, 

230 S.W.3d at 852. We accord great deference “to the responsibility of the trier of 

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319; 

Burton, 230 S.W.3d at 852. The legal sufficiency of the evidence is a question of 

law, and we may not overturn the verdict unless it is irrational or unsupported by 

proof beyond a reasonable doubt. See Matson v. State, 819 S.W.2d 839, 846 (Tex. 

Crim. App. 1991).

Legal “sufficiency of the evidence should be measured by the elements of 

the offense as defined by the hypothetically correct jury charge for the case.” 

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). That is, “one that 

accurately sets out the law, is authorized by the indictment, does not unnecessarily 

increase the State’s burden of proof or unnecessarily restrict the State’s theories of 

liability, and adequately describes the particular offense for which [appellant] was 

tried.” Id. This standard “ensures that a judgment of acquittal is reserved for those 

situations in which there is an actual failure in the State’s proof of the crime rather 

than a mere error in the jury charge submitted.” Id.1 We apply the Jackson

standard of review to the hypothetically correct jury charge. Adames v. State, 353 

S.W.3d 854, 861 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (2012). 

2. Section 29.02(a)(2)

An individual commits a robbery if, in the course of committing a theft, he 

“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) 

 

1 We discuss (and overrule) appellant’s jury charge issues infra in Section II.C.
6

intentionally or knowingly threatens or places another in fear of imminent bodily 

injury or death.” TEX. PENAL CODE ANN. § 29.02(a) (West 2012). In this case, the 

indictment did not allege that appellant caused bodily injury to Madrid under 

section 29.02(a)(1), but rather that appellant intentionally and knowingly 

threatened and placed Madrid in fear of imminent bodily injury and death under 

section 29.02(a)(2). For purposes of section 29.02(a)(2), “[s]o long as the 

defendant’s actions are ‘of such nature as in reason and common experience is 

likely to induce a person to part with his property against his will,’ any actual or 

perceived threat of imminent bodily injury will satisfy this element of the offense.” 

Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011) (footnote omitted 

and quoting Cranford v. State, 377 S.W.2d 957, 958 (Tex. Crim. App. 1964)). 

In addition, the indictment described how appellant allegedly threatened and

placed Madrid in fear: by threatening to shock Madrid with an electroshock 

weapon, by attempting to shock Madrid with an electroshock weapon, by 

threatening to shock Madrid with a stun gun, and by attempting to shock Madrid 

with a stun gun. Therefore, in this case, a hypothetically correct jury charge—one 

that accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the 

State’s theories of liability, and adequately describes the particular offense for 

which appellant was tried2—would allow the jury to convict appellant of robbery 

if, in the course of committing a theft, appellant intentionally or knowingly 

threatened or placed Madrid in fear of imminent bodily injury or death3by manner 

 

2 Malik, 953 S.W.2d at 240.

3

In the indictment, the State may allege robbery under section 29.02(a)(2) in the 

conjunctive; however, the charge properly may instruct the jury in the disjunctive because proof 

of either “intentionally or knowingly” “threaten[ing] or plac[ing] another in fear” of “imminent 

bodily injury or death” will sustain the conviction. See Vaughn v. State, 634 S.W.2d 310, 312 

(Tex. Crim. App. 1982).
7

or means of appellant’s conduct involving an electroshock weapon or stun gun.4 

See TEX. PENAL CODE ANN. § 29.02(a)(2).

3. The evidence is legally sufficient to support that appellant 

threatened or placed Madrid in fear.

Appellant argues the evidence is legally insufficient to support his 

conviction with regard to the threaten-or-place-in-fear element. Appellant 

emphasizes that Madrid did not testify as to whether appellant “ever spoke or 

threateningly brandished his stun gun before attempting to shock her.” Appellant 

contends that the jury was not presented with any proof that appellant actually 

threatened Madrid, only that appellant “attempted to physically assault those 

attempting to hinder his escape.” That is, while appellant’s conduct may have been 

an attempted bodily-injury assault to qualify as robbery under section 29.02(a)(1), 

it was not an assault by threat to qualify as robbery under section 29.02(a)(2). We 

disagree.

The Court of Criminal Appeals recently interpreted the threaten-or-place-infear element of section 29.02(a)(2): 

The plain language of the statute encompasses not just explicit threats, 

but whatever implicit threats may lead to the victim being placed in 

fear. So long as the defendant’s actions are “of such nature as in 

reason and common experience is likely to induce a person to part 

with his property against his will,” any actual or perceived threat of 

imminent bodily injury will satisfy this element of the offense.

Howard, 333 S.W.3d at 138 (footnotes omitted, quoting Cranford, 377 S.W.2d at 

958, and citing Olivas v. State, 203 S.W.3d 341, 345–46 (Tex. Crim. App. 2006)). 

A threat need not be expressly voiced; it can be communicated by the accused’s 

 

4 Although section 29.02(a)(2) does not require any particular manner or means for the 

commission of robbery by threat, we include the alleged electroshock weapon or stun gun 

involved “to give the defendant adequate notice of the charge against him so as to meaningfully 

defend himself.” See Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001).
8

actions or conduct. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App.

1984). In determining whether a defendant has threatened another, the crucial 

inquiry is whether the accused acted in such a manner as would, under the 

circumstances, portend an immediate threat of danger to a person of reasonable 

sensibility. Olivas, 203 S.W.3d at 347. “Proving robbery by showing the 

defendant placed another in fear does not require an actual threat.” Burton, 230 

S.W.3d at 852. “We must look to the circumstances surrounding the robbery to 

determine if appellant’s conduct reasonably placed [Madrid] in fear.” Id. at 853.

Although there is no evidence of any verbal threat issued by appellant to 

Madrid or that appellant “brandished” the taser at Madrid before he stunned the 

side of her leg, section 29.02(a)(2) does not require “that the alleged robber display 

a weapon or make an express threat in order to support a finding that the victim 

was threatened or placed in fear.” Welch v. State, 880 S.W.2d 225, 227 (Tex. 

App.—Austin 1994, no pet.) (discussing Cranford). Here, Madrid testified she 

saw that appellant was holding a taser and also heard it “buzzing.” In addition, 

Madrid testified that when she saw and heard the taser, prior to actually being 

“tased,” she felt “scared of being hurt.” See Howard, 333 S.W.3d at 140 

(concluding evidence was legally sufficient to show robbery under section 

29.02(a)(2) where complainant testified “he was frightened by the appellant”). 

Madrid not only feared for her own safety, but also she tried to tell her fellow coworkers and Wal-Mart customers not to approach appellant because he had a 

weapon and they could “get hurt.” Viewing the evidence in the light most 

favorable to the verdict, a rational trier of fact could have concluded beyond a 

reasonable doubt that appellant’s actions involving an electroshock weapon or a 

stun gun, in the circumstances surrounding this robbery, reasonably threatened 

Madrid or placed her in fear of imminent bodily injury or death. See Jackson, 443 
9

U.S. at 318–19; Burton, 230 S.W.3d at 852. Thus, we overrule appellant’s legal 

insufficiency issue.

B. Whether the trial court committed reversible error during voir dire

During voir dire, appellant’s defense counsel asked each of the 65 venire 

members:

During the guilt/innocence phase and not during the punishment 

phase, I think that was unclear, and I apologize, if the instruction is 

given, I’m asking if you can follow the law? The law is if somebody 

has a prior conviction and that comes out in guilt/innocence, will you 

be able not—you’re not supposed to use that as evidence of guilt. 

We’re not trying somebody to say did you do something in the past 

that’s on trial for allegedly committing a robbery in this case. Can 

you follow an instruction, can you follow the law that says you will 

not use evidence of prior convictions in order to decide someone is 

guilty in this case?

Of the venire members, 26

5

answered that they could follow such an instruction; 28 

of the venire members indicated that they could not; and 11 venire members were 

unsure whether they could. Appellant’s defense counsel requested that the trial 

court bring back 14 of the venire members (jurors 3, 5, 14, 17, 27, 29, 30, 31, 35, 

37, 43, 52, 59, and 64) for additional questioning. The prosecutor objected:

First, I believe it’s an improper commitment question. Second, it’s 

based on a hypothetical that if the Court gave an instruction, could 

they disregard this hypothetical scenario? I believe the only 

appropriate question that should be asked is whether or not the juror is 

willing to follow the law in this case as explained to it by the Judge. 

Basing any series of questions on this random hypothetical whether or 

not the Defendant may testify and whether or not evidence may be 

introduced and then whether or not the Judge gives an instruction is an 

improper cause question.

 

5

In his brief, appellant indicates juror 63 did not want to answer the question; however, 

juror 63 responded “yes” to the trial court’s question of whether she would follow the law that

the court gives her.
10

The specific question that appellant’s defense counsel wanted to ask these 14 

individuals was, “[W]ill you follow an instruction not to use prior convictions as 

evidence of guilt?” The trial court did not permit the additional question, stating: 

“In connection with that question, the Court determines that the evidence of guilt 

will not come in in a guilt or innocence phase. It is an improper question. The 

Court is going to deny it.” Appellant’s defense counsel requested that these 14 

individuals be stricken for cause, and the trial court denied those strikes. 

In appellant’s second issue, he argues that the trial court abused its discretion 

by not allowing him to conduct his requested further inquiry, based on a proper 

commitment question. Appellant contends that this constituted harmful error 

impacting his substantial rights because the trial court’s refusal interfered with his 

ability to “intelligently exercise peremptory challenges or challenge venire 

members for cause.”

6

Assuming solely for purposes of our analysis, but without deciding, that 

appellant’s additional question was a proper commitment question that the trial 

court should not have prohibited,

7 we conclude that any alleged abuse of discretion 

 

6 We disagree with the State that appellant did not preserve this further-inquiry issue for 

our review because he failed to object to the trial court’s alleged limitation of voir dire. “To 

preserve error regarding the manner of voir dire, the record must reflect a proper question which 

the trial court has not allowed to be answered.” Dhillon v. State, 138 S.W.3d 583, 589 (Tex. 

App.—Houston [14th Dist.] 2004, pet. struck). A question so vague or broad that it constitutes a 

“global fishing expedition” is improper and fails to preserve error because it is impossible for a 

reviewing court to determine if the question is relevant and properly phrased. Id. There is no 

dispute that appellant requested 14 venire members be asked the additional follow-up question, 

and that the trial court denied his request. The requested question was not so vague or broad as 

to constitute a “global fishing expedition.” See id.

7 A trial court abuses its discretion only when it prohibits a proper question about a 

proper area of inquiry. Woods v. State, 152 S.W.3d 105, 108 (Tex. Crim. App. 2004). A 

question is proper if it seeks to discover a juror’s views on an issue applicable to the case. Id. 

However, an otherwise proper question is impermissible if it attempts to commit the juror to a 

particular verdict based on particular facts. Id. 

A commitment question is one that “commits a prospective juror to resolve, or to refrain 
11

in “the denial of full and appropriate voir dire” did not harm appellant.

8

 

The appropriate standard of harm is to disregard the error unless a 

substantial right has been affected. Woods v. State, 152 S.W.3d 105, 109 (Tex. 

Crim. App. 2004) (citing TEX. R. APP. P. 44.2(b)). A substantial right is affected 

when the error has a substantial and injurious effect or influence in determining the 

jury’s verdict. Id. at 109–10 (citing King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997)). It is not appellant’s burden to show harm, but the “duty of the 

reviewing court to assess harm from the context of the error.” Johnson v. State, 43 

S.W.3d 1, 4 (Tex. Crim. App. 2001).

Comparing the requested additional follow-up question—“[W]ill you follow 

an instruction not to use prior convictions as evidence of guilt?”—with the earlier 

question asked of and answered by all 65 jury venire members—“Can you follow 

an instruction, can you follow the law that says you will not use evidence of prior 

convictions in order to decide someone is guilty in this case?”—they present 

virtually identical questions. Therefore, we conclude that, even if appellant had 

been able to ask the 14 individuals the requested additional question, asking the 

same question again would not have improved appellant’s ability to “fully 

develop” his strikes for cause. See Woods, 152 S.W.3d at 110 (“The trial court’s 

 

from resolving, an issue a certain way after learning a particular fact.” Standefer v. State, 59 

S.W.3d 177, 179 (Tex. Crim. App. 2001). For a commitment question to be proper, one of the 

possible answers to the question must give rise to a valid challenge for cause. Id. at 182. The 

inquiry for determining an improper commitment question involves two steps: (1) a 

determination of whether the question is indeed a commitment question; and (2) a determination 

of whether the question includes facts—and only those facts—that lead to a valid challenge for 

cause. Id. If the answer to the first determination is “yes” and the answer to the second is “no,” 

the proposed question is an improper commitment question and the trial court should not allow 

it. Id. at 182–183.

8 Courts of appeals may affirm convictions based on a lack of harm and need not address 

whether challenged questions are improper commitment questions. See Sanchez v. State, 165 

S.W.3d 707, 712–13 (Tex. Crim. App. 2005).
12

denial of a proper question in this case did not have a substantial or injurious effect 

or influence in determining the jury’s verdict because defense counsel was able to 

ask [juror] essentially the same question.”).

Moreover, while he cites article 35.16 of the Code of Criminal Procedure,9

appellant does not complain about or provide any analysis of the trial court’s denial 

of any of his challenges for cause.10 Therefore, appellant has waived any 

complaint relating to the denial of his challenges for cause. See Foster v. State, 

779 S.W.2d 845, 864 (Tex. Crim. App. 1989). 

C. Appellant’s jury charge issues

In reviewing alleged jury charge error, we first determine whether error 

exists in the charge, and then, if so, whether sufficient harm resulted from the error 

to warrant reversal. Bradford v. State, 230 S.W.3d 719, 721 (Tex. App.—Houston 

[14th Dist.] 2007, no pet.) (citing Druery v. State, 225 S.W.3d 491, 504 (Tex.

Crim. App. 2007)). The degree of harm necessary for reversal depends on whether 

the error was preserved. Id. Where, as here, an appellant does not object to the 

charge, the conviction will not be reversed unless the record shows “egregious 

harm.” Id. Egregious harm is that which affects the very basis of the case, 

deprives the appellant of a valuable right, or vitally affects a defensive theory. Id.

1. Whether the jury charge violated appellant’s right to jury 

unanimity

Appellant complains that the trial court’s charge to the jury violated his right 

to a unanimous verdict. Appellant contends that the jury charge permitted 

conviction for either of two distinct criminal offenses, and therefore it is 

 

9 Article 35.16 governs “Reasons for challenge for cause.” TEX. CODE CRIM. PROC. ANN.

art. 35.16 (West 2012).

10 “Denial of a proper challenge for cause is error because the makeup of the jury affects 

its decision.” Johnson, 43 S.W.3d at 5.
13

impossible to know which one the jury found unanimously. Specifically, appellant

argues that the language “threatening to shock” properly refers to the conductoriented offense under section 29.02(a)(2) while the language “attempting to 

shock” only can refer to the result-oriented offense under section 29.02(a)(1).

The jury charge stated:

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

or about the 21st day of May, 2011, in Harris County, Texas, the 

defendant, Reginald Tyrone Loville, did then and there unlawfully, 

while in the course of committing theft of property owned by Lisa 

Madrid, and with intent to obtain or maintain control of the property, 

intentionally or knowingly threaten or place Lisa Madrid in fear of 

imminent bodily injury or death, by threatening to shock Lisa Madrid 

with an electroshock weapon; or

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

about the 21st day of May, 2011, in Harris County, Texas, the 

defendant, Reginald Tyrone Loville, did then and there unlawfully, 

while in the course of committing theft of property owned by Lisa 

Madrid, and with intent to obtain or maintain control of the property, 

intentionally or knowingly threaten or place Lisa Madrid in fear of 

imminent bodily injury or death, by attempting to shock Lisa Madrid 

with an electroshock weapon; or

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

about the 21st day of May, 2011, in Harris County, Texas, the 

defendant, Reginald Tyrone Loville, did then and there unlawfully, 

while in the course of committing theft of property owned by Lisa 

Madrid, and with intent to obtain or maintain control of the property, 

intentionally or knowingly threaten or place Lisa Madrid in fear of 

imminent bodily injury or death, by threatening to shock Lisa Madrid 

with a stun gun; or

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

about the 21st day of May, 2011, in Harris County, Texas, the 

defendant, Reginald Tyrone Loville, did then and there unlawfully, 

while in the course of committing theft of property owned by Lisa 

Madrid, and with intent to obtain or maintain control of the property, 

intentionally or knowingly threaten or place Lisa Madrid in fear of 
14

imminent bodily injury or death, by attempting to shock Lisa Madrid 

with a stun gun, then you will find the defendant guilty of robbery, as 

charged in the indictment.

During closing argument, the prosecutor explained the jury charge as follows:

Did the Defendant, Reginald Loville, attempt to commit theft and in 

the course of that theft, did he threaten the complaining witness, Lisa 

Madrid? And it asks different variations of that fact. Did he threaten 

her by attempting to shock her with an electroshock weapon or a stun 

gun, or did he threaten her by threatening her with the electroshock 

weapon or stun gun? It’s different ways to say the same thing, 

basically. It just covers all the bases.

The verdict form submitted to the jury permitted a verdict of not guilty or guilty of 

robbery, as charged in the indictment.

“Under our state constitution, jury unanimity is required in felony cases, 

and, under our state statutes, unanimity is required in all criminal cases.” Ngo v. 

State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). While the jury must 

unanimously agree about the occurrence of a single criminal offense, it need not be 

unanimous about the specific manner or means of how that offense was committed.

Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011); Ngo, 175 S.W.3d at 

745–46. When an appellant’s indictment does not allege different offenses but 

only different ways of committing the same offense, the court properly furnishes

the jury with a general verdict form. Aguirre v. State, 732 S.W.2d 320, 326 (Tex. 

Crim. App. 1982) (op. on reh’g). Further, the unanimity requirement is not 

violated by instructing the jury on alternative legal theories of committing the same 

offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). 

Alternative methods of committing the same offense are properly submitted to the 

jury in the disjunctive if the evidence is legally sufficient to support a finding of 

the offense under any of the theories submitted. Wert v. State, 383 S.W.3d 747, 

755 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Kitchens v. State, 823 
15

S.W.2d 256, 258 (Tex. Crim. App. 1991)). 

The robbery statute provides two separate criminal offenses—robbery 

causing bodily injury and robbery by threat. See TEX. PENAL CODE ANN.

§ 29.02(a)(1), (2); Woodard v. State, 294 S.W.3d 605, 608 (Tex. App.—Houston 

[1st Dist.] 2009, pet. ref’d). The Court of Criminal Appeals recognizes robbery as 

a form of assault. Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). 

And the Court of Criminal Appeals has held that bodily-injury assault is a resultoriented offense, while assault by threat is a conduct-oriented offense, “focusing 

upon the act of making a threat, regardless of any result that threat may cause.” 

Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008). Similarly, 

robbery by bodily injury and robbery by threat each has a different “gravamen or 

focus of the offense.” See Young, 294 S.W.3d at 424. In a “result of conduct” 

offense, such as bodily-injury robbery, the jury must be unanimous about the 

specific result required by the statute, bodily injury to the complainant. See id. 

With a “nature of conduct” crime, such as robbery by threat, the jury must be 

unanimous about the specific criminal act, namely, that the perpetrator threatened 

or placed the complainant in fear of imminent bodily injury. See id.

In this case, both the indictment and the jury charge indicate that the only 

robbery offense involved in this case was robbery by threat under section 

29.02(a)(2). Each paragraph of the indictment and the jury charge substantially 

tracked the statutory language found in section 29.02(a)(2)

11—that appellant 

“intentionally and knowingly threaten and place [Lisa Madrid] in fear of imminent 

bodily injury and death” (indictment) and that appellant “intentionally or 

knowingly threaten or place Lisa Madrid in fear of imminent bodily injury or 

 

11 TEX. PENAL CODE ANN. § 29.02(a)(2) (“intentionally or knowingly threatens or places 

another in fear of imminent bodily injury or death”).
16

death” (charge).12 Thus, the “gravamen of the offense” for all four application 

paragraphs of the charge was the same. See Young, 341 S.W.3d at 424; Woodard, 

294 S.W.3d at 609–10. None of the charge paragraphs used language authorizing 

the jury to convict where appellant “intentionally, knowingly, or recklessly causes 

bodily injury to another” per section 29.02(a)(1) or any equivalent statutory 

language. See TEX. PENAL CODE ANN. § 29.01(a)(1).13

Here, all the jury needed to find unanimously was that appellant committed 

the criminal offense of robbery by threat; it did not need to agree as to whether 

appellant accomplished that offense by (1) “threatening to shock” Madrid with an 

electroshock weapon, (2) “attempting to shock” Madrid with an electroshock

weapon, (3) “threatening to shock” Madrid with a stun gun, or (4) “attempting to 

shock” Madrid with a stun gun. See Young, 341 S.W.3d at 428. Thus, charging 

the jury in the disjunctive as to alternative methods of how appellant committed 

robbery by threat and submitting a general verdict form were proper. See Aguirre, 

732 S.W.2d at 326; Wert, 383 S.W.3d at 755.

Contrary to appellant’s contention that “attempting to shock” only can relate 

 

12 Supra n.3.

13 Thus, this situation is easily distinguished from that in Marinos v. State, relied on by 

appellant. 186 S.W.3d 167 (Tex. App.—Austin 2006, pet. ref’d). In Marinos, the appellant was 

indicted for one count of aggravated bodily-injury assault and one count of aggravated assault by 

threat. With regard to aggravated bodily-injury assault, the charge included three theories of 

how the appellant committed the offense: (1) by placing a bag on the complainant’s face where 

the bag is a deadly weapon, (2) by placing a piece of a bag on the complainant’s face where the 

piece of a bag is a deadly weapon, and/or (3) by placing his hand over the complainant’s mouth 

and nose where his hand is a deadly weapon. With regard to aggravated assault by threat, the 

charge included two theories of how the appellant committed the offense: (1) while using or 

exhibiting a bag as a deadly weapon, and/or (2) while using or exhibiting his hand as a deadly 

weapon. Id. at 174–75. The court concluded there was error because the charge “allow[ed] the 

jury to return a general guilty verdict without unanimously agreeing that appellant committed 

either aggravated bodily[-]injury assault or aggravated assault by threat.” Id. at 175. Thus, 

although it was not necessary for the jury to agree on the method of committing either type of 

assault, the jury had to agree on what type of assault had been committed. Id.
17

to an intent to cause injury, not to an intent to threaten, the theory that appellant 

committed a robbery by threat via his conduct in “attempting to shock” Madrid, 

regardless of any resulting injury, is consistent both with section 29.02(a)(2) and 

Texas case law interpreting robbery by threat. Appellant argues that McGowan

supports the proposition that “attempting to shock” only can require an intent to 

injure and not an intent to threaten. We cannot agree. In McGowan, the Court of 

Criminal Appeals held that where there only is evidence of bodily injury, but no 

evidence the appellant exhibited any threatening conduct prior to or after the 

bodily injury, a conviction for aggravated assault by threat cannot be sustained. 

664 S.W.2d at 357–58. However, in McGowan, the Court also sustained a 

conviction for aggravated assault by threat where, regardless of the fact that a 

different complainant also suffered a bodily injury, the evidence showed that 

complainant saw appellant’s weapon and begged him not to hurt her. Id. at 358. 

Thus, McGowan does not preclude including in a jury charge the legal theory that 

appellant threatened or placed Madrid in fear by his conduct in “attempting to 

shock” her. As long as appellant’s conduct in “attempting to shock” Madrid was

of such nature as in reason and common experience is likely to induce Madrid to 

part with her property against her will, this theory, if found by the jury, would 

satisfy the threaten-or-place-in-fear element of the offense. See Howard, 333 

S.W.3d at 138.14 And while appellant insists that the record supports the 

conclusion that Loville attempted to or actually caused a bodily injury to Madrid, 

 

14 Appellant also points to the inclusion of the definition of “attempt” (tracking section 

15.01(a) of the Penal Code) within the abstract portion of the charge and argues that the jury was 

somehow confused as to appellant’s requisite intent and thus whether it should convict appellant 

of robbery by bodily injury or robbery by threat. Again, appellant offers nothing in support 

except McGowan. Moreover, to put it in context, this “attempt” definition directly followed the 

trial court’s defining the term “in the course of committing theft” to mean “conduct that occurs in 

an attempt to commit, during the commission, or in immediate flight after the attempt or 

commission of theft.” (Emphases added). See TEX. PENAL CODE ANN. § 29.01(1).
18

the State was not required also to indict appellant for bodily-injury robbery under 

section 29.02(a)(1). There is no question that the State has the power to choose 

what offense to pursue. In re State ex rel. Weeks, 391 S.W.3d 117, 123–24 (Tex. 

Crim. App. 2013). “This concept . . . also applies to legal theories available to 

prove the charged offense.” Id. at 124.

Here, the State chose to pursue robbery by threat and to offer the 

permissible, alternative legal theories that appellant committed the offense either 

by “threatening to shock” or “attempting to shock” Madrid, either with an 

electroshock weapon or a stun gun. The jury charge tracked such indictment; the 

charge did not include any language regarding appellant’s causing bodily injury to 

Madrid. The State’s closing argument indicated that the charge asked the jury 

“different variations” of whether appellant committed robbery by threat. The jury 

returned a unanimous verdict that appellant committed the charged offense. We 

conclude that the trial court committed no error in the jury charge and the charge 

did not violate appellant’s right to unanimity. See Young, 341 S.W.3d at 138. 

Therefore, we overrule appellant’s third issue.

2. Whether the jury charge included surplusage that improperly 

negated the mental state required for robbery by threat

In a closely related issue, appellant argues the language “by attempting to 

shock Lisa Madrid” included in the jury charge is surplusage that improperly 

negated the mental state required to commit robbery by threat. We already have 

determined that including “attempting to shock” Madrid as a manner or means of 

how appellant committed the offense of robbery by threat did not constitute charge 

error in the context of appellant’s right to unanimity. Appellant’s argument that 

“attempting to shock” is surplusage that is inconsistent with and negates an 

element of robbery by threat similarly is based on his flawed interpretation of the 
19

holding in McGowan. Simply put, “the holding in McGowan is that there must be 

some evidence of a threat being made to sustain a conviction of assault by threat.” 

Olivas, 203 S.W.3d at 349. Since “threats can be conveyed in more varied ways 

than merely a verbal manner,”15evidence of a threat being made and, therefore, 

legal theories based on such evidence also can take various forms. See Howard, 

333 S.W.3d at 138 (“[Section 29.02(a)(2)] encompasses not just explicit threats, 

but whatever implicit threats may lead to the victim being placed in fear.”). Thus,

appellant’s conduct in that he “attempted to shock” Madrid presents a permissible

manner or means of committing robbery by threat consistent with section 

29.02(a)(2)’s requirement that appellant “intentionally or knowingly threaten[ed] 

or place[d] [Madrid] in fear of imminent bodily injury or death.” See TEX. PENAL 

CODE ANN. § 29.02(a)(2). Therefore, we also overrule appellant’s fourth issue. 

D. Whether the trial court violated appellant’s confrontation clause 

right during the punishment phase

In appellant’s first issue, he complains that during the punishment hearing, 

the trial court erroneously permitted testimony by Officer Hardy and Detective 

Braune about four particular extraneous offenses allegedly committed by appellant. 

These four alleged offenses are: (1) an unspecified crime occurring on May 23, 

2011, at 12546 East Freeway, at 9 a.m.; (2) an unspecified crime occurring on May 

23, 2011, at 9700 Mesa Road, at 5:48 p.m.; (3) a robbery occurring on May 27, 

2011; and (4) a parole violation occurring on May 27, 2011.16 Appellant argues 

that admitting testimonial hearsay regarding the involvement of a white Pontiac 

Sunfire, a taser, and/or a suspect fitting appellant’s description—obtained from 

 

15 McGowan, 664 S.W.2d at 357 (citations omitted).

16 As discussed in more detail infra, the record reflects that any parole violation related to 

appellant’s parking in a handicap spot without a sticker occurred not on May 27, but instead 

likely occurred on May 17.
20

eyewitnesses who did not testify at trial—violated appellant’s Sixth Amendment 

confrontation clause right and contributed to the jury’s assessment of a life 

sentence.

1. The confrontation clause applies during the punishment phase.

 This court recognizes that the confrontation clause applies during the 

punishment phase of a criminal trial. Dixon v. State, 244 S.W.3d 472, 482-83 

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). The confrontation clause of 

the Sixth Amendment provides: “In all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.

amend. VI. In Crawford v. Washington, the Supreme Court held that it was a 

violation of the Sixth Amendment to admit testimonial statements of a witness who 

did not appear at trial unless that witness was unavailable to testify and the 

defendant had a prior opportunity for cross-examination. 541 U.S. 36, 68 (2004). 

We have identified the following principles as guidance in determining whether 

statements are testimonial in nature: (1) testimonial statements are official and 

formal in nature, (2) interaction with the police initiated by a witness or the victim 

is less likely to result in testimonial statements than if initiated by the police, (3) 

spontaneous statements to the police are not testimonial, and (4) responses to 

preliminary questions by police at the scene of the crime while police are assessing 

and securing the scene are not testimonial. Ruth v. State, 167 S.W.3d 560, 568–69 

(Tex. App.—Houston [14th Dist.] 2005 pet. ref’d). And in Davis v. Washington, 

the Supreme Court explained:

Statements are non-testimonial when made in the course of police 

interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance to 

meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is to 
21

establish or prove past events potentially relevant to later criminal 

prosecution.

547 U.S. 813, 822 (2006). 

We review de novo the constitutional legal question of whether a statement 

is testimonial. Dixon, 244 S.W.3d at 481 (citing Wall v. State, 184 S.W.3d 730, 

742 (Tex. Crim. App. 2006)). Confrontation clause claims are subject to the 

requirement that to preserve error, there must be a timely and specific objection to 

the complained-of evidence. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. 

App. 2010); Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005); see 

also TEX. R. APP. P. 33.1(a)(1)(A). Other types of objections, such as to hearsay, 

fail to preserve error on confrontation clause grounds. Paredes v. State, 129 

S.W.3d 530, 535 (Tex. Crim. App. 2004).

2. Unspecified crime occurring on May 23, 2011 at 9 a.m.

Braune provided the following testimony:

A. The case occurred [sic] approximately 9 o’clock in the morning.

Q. And that was on what date?

A. That was on May the 23rd, 2011.

Q. And, again, what were the similarities in this case and the master 

case that brought it to your attention?

A. That’s going to be the white Pontiac Sunfire.

Q. Anything else?

A. Description of the Defendant was the same as in the other related 

cases and in the master case.

Q. Okay. So the same description, same car?

A. And the use of the taser by the description of the—it was the use of 

the taser, also.

Q. So the car, the description and the taser?

A. That’s correct.
22

Q. And that happened at 9:00 in the morning on May 23rd?

A. On the 23rd.

Q. What was the address of that location?

A. That was at 12546 East Freeway.

The record reveals no timely objection was made to this testimony. Therefore, 

appellant failed to preserve any confrontation clause error regarding the May 23, 

2011 9:00 a.m. extraneous offense. See Davis, 313 S.W.3d at 347.

3. Unspecified crime occurring on May 23, 2011 at 5:48 p.m. 

Later, Braune provided the following testimony:

Q. And then moving on to the fourth one on that date. Let me direct 

you to Offense Report No. 066300011. Do you have that in front of 

you?

A. Yes, sir, I do.

Q. And what time did that incident occur?

A. Incident occurred at 1748 hours.

Q. And what was the—on what date, I’m sorry?

A. And that was on May the 23rd of 2011.

Q. What time is 1748 hours for the jury?

A. Would be 5:48.

Q. 5:48, okay. And what are the similarities in that case that draw 

your attention to—

MR. HOCHGLAUBE: Judge, I’d object. I believe this is outside of 

the State’s proffer they had yesterday. Actually, may I have a sidebar 

with the Prosecutor?

THE COURT: Yes.

MR. HOCHGLAUBE: Judge, may I have a running objection to the 

Sixth Amendment issue in terms of this officer testifying to what 

other witnesses might say?

THE COURT: You may have a running objection to the testimony. 

The others will have to take, obviously, question by question.
23

MR. HOCHGLAUBE: To him testifying to what other witnesses 

would say.

THE COURT: Some of it may be admissible, some of it may not. So, 

you’ll need to object appropriately.

MR. HOCHGLAUBE: Yes, Judge.

Q. (BY MR. WHITE) Detective, and the one that we're referring to, 

you said it happened at 5:48?

A. That’s correct, yes, sir.

Q. On the 23rd?

A. On the 23rd.

Q. What location is that at?

A. 9700 block of Mesa Drive.

Q. Is that in Harris County, Texas?

A. Yes, sir, it is.

Q. And what were the similarities in that case?

A. In this case the—

MR. HOCHGLAUBE: I object to this being, to him testifying to what 

other witnesses would say as hearsay and the Sixth Amendment 

violation.

THE COURT: All right. Your objection is overruled.

A. The similarities were the white Pontiac Sunfire. One of the 

suspects used a taser during the incident, and the description of the 

suspects were similar, the same as one of the Defendants.

This time, appellant timely objected, and was granting a running objection,17 to

Braune’s testimony on the basis of “the Sixth Amendment issue in terms of this 

officer testifying to what other witnesses might say.” Appellant also specifically 

objected to Braune’s testimony as hearsay and a violation of the Sixth Amendment. 

Thus, we conclude that appellant sufficiently preserved constitutional 

 

17 Continuing or running objections are permitted in the context of confrontation clause 

claims. See Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008); Campos v. State, 256 

S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
24

confrontation clause error with regard to this extraneous offense. See Reyna, 168 

S.W.3d at 179–80.

Once appellant objected to the admission of Braune’s testimony as to what 

information he learned from eyewitnesses, the burden shifted to the State, as the 

proponent of that evidence, to establish it was admissible under Crawford. See De 

La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Vinson v. 

State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008)). “In other words, once 

appellant objected, the State was obligated to establish either (1) that [Braune’s 

testimony] did not contain testimonial hearsay statements or (2) that [Braune’s 

testimony] did contain testimonial hearsay statements but that such statements 

were nevertheless admissible under Crawford.” De La Paz, 273 S.W.3d at 680–

81. After reviewing the record and considering that the State did not argue these 

statements were not testimonial in its brief, or that the witness(es) was unavailable 

to testify and appellant had a prior opportunity for cross-examination, we conclude 

the State failed to carry its burden. See id. at 681. Certainly, the hearsay 

statements in Braune’s testimony “were not obviously non-testimonial.” See id. 

Indeed, statements from witnesses or victims, particularly within the context of a 

consolidated robbery investigation involving perhaps ten robberies, appear to have 

the “primary purpose . . . to establish or prove past events potentially relevant to 

later criminal prosecution.” See Davis, 547 U.S. at 822. Also, the circumstances

do not objectively indicate that the statements to the police were spontaneous, that 

the interaction was initiated by witnesses or victims instead of by the police, or that 

the statements were required to meet an ongoing emergency.18 See id; Ruth, 167 

S.W.3d at 568–69. Therefore, we conclude that the trial court erred in allowing 

Braune’s testimony as to the similar details of the May 23, 2011 5:48 p.m. crime. 

 

18 Indeed, Braune did not even get assigned to the series of robberies until May 25. 
25

4. Robbery occurring on May 27, 2011

Appellant next complains about both Hardy’s and Braune’s testimony with 

regard to an alleged robbery occurring on May 27. Hardy testified:

Q. And on May 25th, who did this case get assigned to?

A. Officer Fred Braune.

Q. And did he only get assigned the case of the May 21st, 2011?

A. No, at that point we realized that there were multiple cases 

involving what we believe were the same suspects, same suspect’s 

vehicle; and they were all assigned to Fred Braune at that point.

Q. Did you have any other connection with any of these cases after 

that date?

A. I did.

Q. And other than the arrest?

A. That’s correct, yes.

Q. What else did you do as far as this investigation?

A. We learned of an additional robbery that had occurred at the time 

of the arrest on May 27th.

Q. And you worked on that case?

A. I did.

Again, the record reveals no timely objection was made to this testimony. 

Therefore, appellant failed to preserve any confrontation clause error regarding 

Hardy’s testimony about this alleged extraneous offense. See Davis, 313 S.W.3d 

at 347. Further, the record does not indicate any testimony by Braune regarding 

any May 27 alleged robbery. 

5. Parole violation occurring on May 17, 2011

Braune provided the following testimony:

Q. And [the contents of State’s exhibit 49] also contained a parking 

citation?
26

A. Yes, it did.

Q. What’s the location of the parking citation?

A. Was at 150 West El Dorado Boulevard in Houston.

Q. Do you know what that location is?

A. It’s a Wal-Mart location.

Q. And what's the citation for?

A. Parked in a handicap without a sticker.

Q. Okay. Detective, now moving back to the arrest. When you made 

a determination that you had your suspect, how did you go about 

effecting the arrest?

A. I was able to obtain a parole violation warrant for his arrest.

Q. And so when you went to arrest the Defendant, you were not 

arresting him for these offenses yet; is that correct?

A. That’s correct.

Q. So, what were you arresting him for?

A. He had a—it was a violation of his parole due to the testimony of 

the wrecker driver.

MR. HOCHGLAUBE: We’d object. This is a violation of 37.07 we 

haven’t been given proper notice.

THE COURT: Your objection is overruled.

MR. HOCHGLAUBE: May we have a running objection?

THE COURT: Yes.

Q. (BY MR. WHITE) So, you were arresting him for violating his 

parole, correct?

A. Yes, that’s correct.

Here, Braune is describing a parking citation that was issued at 150 West El 

Dorado Blvd. at a Wal-Mart location,

19 and had been recovered by police on May 

 

19 Earlier during the punishment phase, Hardy testified regarding an aggravated robbery 

occurring at a Wal-Mart at 150 West El Dorado on May 17, 2011, and testified, without any 

confrontation clause objection, that the get-away vehicle allegedly involved was a white Pontiac 

Sunfire. Also during the punishment phase, the State presented testimony from the Wal-Mart 
27

25, 2011, in the repossessed Pontiac Sunfire.20 Earlier in the punishment phase, 

the trial court had overruled appellant’s article 37.0721 notice objection regarding 

the State’s request to admit various pieces of physical evidence, including the 

parking citation, that had been located in the repossessed car. But nothing in 

appellant’s previous article 37.07 notice objection to the State’s physical evidence 

or in the instant, running article 37.07 notice objection brought to the trial court’s 

attention the confrontation clause’s “precise and proper application to the evidence 

in question.” See Reyna, 168 S.W.3d at 176, 179–80 (concluding that appellate 

court erred in reversing conviction on constitutional confrontation clause ground

when appellant only had made evidentiary argument to trial court); Huizar v. State, 

12 S.W.3d 479, 482 (Tex. Crim. App. 2000) (explaining that article 37.07’s 

requirements are “evidentiary” and have “no constitutional underpinnings”). Also, 

during Braune’s cross-examination, appellant repeated that the parking citation had 

been located in the repossessed car.

Moreover, applying appellant’s running confrontation clause objection22 to 

Braune’s testimony regarding any hearsay statement by the wrecker driver, there is 

no indication that the wrecker driver was involved in or had any knowledge of, 

 

asset protection officer who was on duty during the May 17 incident; he testified regarding the 

relevant portion of the video footage of that alleged aggravated robbery to the jury. The alleged 

crime took place in the parking lot of the Wal-Mart and involved the theft of a flat-screen 

television.

20 In the guilt-innocence phase, Braune had testified, without any objection, that the 

wrecker driver confirmed he repossessed a white Pontiac Sunfire with the same paper dealer 

plate as that located on the repossessed vehicle.

21 Article 37.07 governs “Evidence of prior criminal record in all criminal cases after a 

finding of guilty,” and requires that the State provide notice of its intent to introduce such 

evidence upon timely request by the defendant. See TEX. CODE CRIM. P. ANN. art. 37.07, § 3(g)

(West 2012).

22 The trial court previously had granted appellant a running objection “in terms of this 

officer testifying to what other witnesses might say.”
28

much less provided Braune with information regarding, any May 17, 2011 WalMart parking citation located by police in the Pontiac Sunfire or any alleged 

citation-related parole violation, only that the driver confirmed that he effected 

repossession by towing the vehicle back to the dealer.23 In other words, the 

wrecker driver’s testimony could do little more than reconfirm that police indeed 

had recovered the same white Pontiac Sunfire involved in the instant May 21 WalMart robbery.24

 We therefore conclude the trial court did not commit any 

confrontation clause error in the admission of this portion of Braune’s testimony.

6. Admission of Braune’s testimony regarding the May 23, 2011 

5:48 p.m. crime was harmless beyond a reasonable doubt.

We nevertheless will affirm an appellant’s sentence if we determine beyond 

a reasonable doubt that the harm from the confrontation clause error did not 

contribute to his punishment. Dixon, 244 S.W.3d at 487 (citing TEX. R. APP. P.

44.2(a); Grant v. State, 218 S.W.3d 225, 233 (Tex. App.—Houston [14th Dist.] 

2007, pet. ref’d)). In determining whether error in admitting testimonial 

statements is harmless beyond a reasonable doubt, we consider: (1) the importance 

of the testimonial statements to the State’s case; (2) whether the statements were 

cumulative of other evidence; (3) the presence or absence of evidence 

corroborating or contradicting the statements on material points; and (4) the overall 

strength of the State’s case. Id. (citing Grant, 218 S.W.3d at 233). A Crawford

error does not require reversal unless there is a reasonable probability that the error 

moved the jury from a state of nonpersuasion to one of persuasion on the 

 

23 The record indicates that the vehicle was repossessed sometime after Hardy initially 

visited the dealer on May 24, and before Hardy returned to the dealer to continue his 

investigation on May 25. In contrast, the record indicates that the parking citation likely was 

issued—and thus the alleged parole violation occurred—on May 17. However, only the 

evidence tag, not the actual citation itself, is contained in the record.

24 Supra n.20.
29

appellant’s sentence. Id. We consider the entire record in our assessment of the 

likelihood that, absent the trial court’s confrontation clause error, the jury verdict 

as to appellant’s punishment would have been the same. Clay v. State, 240 S.W.3d 

895, 904 (Tex. Crim. App. 2007).

Here, we are persuaded beyond a reasonable doubt that the jury’s verdict as 

to appellant's punishment would have been the same even if the trial court had not 

admitted Braune’s testimony concerning the May 23, 2011 5:48 p.m. crime 

involving similar details of a white Pontiac Sunfire, a taser, and a suspect fitting 

appellant’s description. First, we acknowledge that this alleged extraneous 

offense, involving the same type of car, weapon, and suspect, was part of an 

important segment of the State’s punishment evidence. Certainly, the State sought

to connect appellant to each and every one of the string of approximately ten 

robberies occurring close in time to the May 21 instant case. However, even 

excluding this particular May 23 offense, the State presented significant evidence 

regarding, and attributing to appellant, nine of the robberies under investigation.25 

Hardy confirmed that a “key component” in the robberies was the white Pontiac 

Sunfire. According to Hardy, there were approximately ten robberies “involving 

what we believe were the same suspects, same suspect’s vehicle; and they were all

assigned to Fred Braune.” Braune linked the white Pontiac Sunfire to “most all the 

robberies,” the identification of appellant to “some of those robberies,” and the use 

of a taser to approximately seven of the robberies. Specifically, excluding the May 

21 robbery on trial and the May 23 5:48 p.m. offense, during the punishment phase 

the State offered evidence regarding eight other crimes within the same robbery

investigation: 

(1) a May 17 aggravated robbery at 150 West El Dorado, involving 

 

25 The ninth robbery was the May 21, 2011 one for which appellant was convicted.
30

theft of a television in a Wal-Mart parking lot from an elderly 

customer, a suspect fitting appellant’s description, and a white Pontiac 

Sunfire; 

(2) a May 21 aggravated robbery at 8402 Hillcroft occurring at 12:38 

p.m., involving theft of money from an elderly customer at a gas 

station, a suspect fitting appellant’s description, a white Pontiac 

Sunfire, and use of a taser; 

(3) a May 21 robbery occurring at 9:57 p.m., involving theft of money 

from an ATM customer, in-court identification of appellant as the 

perpetrator, a white Pontiac Sunfire, and use of a taser; 

(4) a May 23 crime at 12546 East Freeway occurring at 9:00 a.m., 

involving a suspect fitting appellant’s description, a white Pontiac

Sunfire, and use of a taser; 

(5) a May 23 robbery at 7555 Scott Street occurring at 12:10 p.m., 

involving attempted theft of money from a customer at a Valero gas 

station, in-court identification of appellant, a white Pontiac Sunfire, 

and use of a taser; 

(6) a May 23 robbery also at the same Valero occurring shortly 

thereafter, involving theft of various items from another customer’s 

vehicle, in-court identification of appellant as the perpetrator, a white 

Pontiac Sunfire, and use of a taser; 

(7) a May 23 robbery at 7950 F.M. 1960 occurring at 3:00 p.m., 

involving theft of a diamond ring from a Sam’s Club, in-court 

identification of appellant as the perpetrator, and a white Pontiac

Sunfire; and 

(8) a May 27 robbery, involving a suspect fitting appellant’s 

description and a white Pontiac Sunfire.

Second, other evidence regarding appellant’s involvement in the May 23, 

2011 5:48 p.m. crime was admitted, without objection. The State introduced a 

Google map showing the four locations of all the alleged robberies occurring on 

May 23, 2011, including the May 23 5:48 p.m. crime, through Braune. During 

cross-examination of Braune, appellant referred to the same Google map and the 

same four locations of all the May 23 offenses allegedly involving appellant. 
31

Third, with regard to eight of the other offenses within the consolidated 

robbery investigation, the State introduced evidence attributing those “bad acts” to 

appellant, through a similar suspect description, including video footage or actual 

eyewitness identification; through description of the white Pontiac Sunfire, 

including video footage or eyewitness testimony; and/or through description of the 

use of a taser, including eyewitness testimony. See Haley v. State, 173 S.W.3d 

510, 515 (Tex. Crim. App. 2005) (explaining that article 37.07 “require[s] the 

burden of proof to be applied to a defendant’s involvement in the act itself, instead 

of the elements of a crime necessary for a finding of guilt”).

And finally, in addition to appellant’s involvement in the string of May 2011 

robberies, the State presented other compelling, uncontroverted evidence of 

appellant’s extraneous crimes and bad acts during the punishment phase. The State 

presented evidence of appellant’s being convicted and sentenced in 16 prior 

criminal judgments. See Dixon, 244 S.W.3d at 487. According to the testimony, 

appellant’s prior convictions since 1989 added up to 75 years in the Texas 

Department of Corrections. In addition, appellant pleaded true to the two prior 

felony enhancement paragraphs—robbery and possession of cocaine—so the jury 

already was required by statute to assess punishment at not less than 25 years nor 

more than 99 years or life. See TEX. PENAL CODE ANN. § 12.42(d) (West 2012). 

Further, the jury was instructed twice that it could not consider evidence of 

appellant’s extraneous crimes or bad acts in assessing punishment unless the State 

had proven appellant’s involvement beyond a reasonable doubt—both orally 

during the punishment phase and within the punishment charge.

Considering the entire record, in light of all the evidence properly before the 

jury, we conclude that there is no reasonable probability that Braune’s testimony 

regarding the May 23, 2011 5:48 p.m. crime moved the jury from a state of 
32

nonpersuasion to one of persuasion with regard to assessing appellant’s 

punishment at life. See Dixon, 244 S.W.3d at 487. Therefore, we overrule 

appellant’s first issue.

III. CONCLUSION

Accordingly, having overruled appellant’s legal insufficiency, voir dire, jury 

charge, and confrontation clause issues, we affirm the trial court’s judgment.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Jamison, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).