Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00360-CR

Kevin Jason GONZALES,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2020CR0029

Honorable Michael E. Mery, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice

Irene Rios, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: March 22, 2023

AFFIRMED

A jury convicted appellant Kevin Gonzales of one count of robbery, a second-degree felony 

enhanced by a prior adjudication for delinquent conduct constituting a felony offense, and the trial 

court assessed punishment at confinement for forty years in the Texas Department of Criminal 

Justice and a fine of ten thousand dollars. See TEX. PEN. CODE ANN. §§ 29.02, 12.42(f). In four 

issues, Gonzales contends that: (1) the evidence is insufficient to support his conviction for the 

offense of robbery; (2) the trial court erred in refusing his jury-charge request for the lesserincluded offense of theft; (3) the trial court erred in admitting scientifically unreliable fingerprint 
04-21-00360-CR

- 2 -

analysis; and (4) the trial court erred in admitting his fingerprints from a prior criminal proceeding. 

We affirm.

I. BACKGROUND

The jury considered the testimony of, among others, Mehru Lalani, a store clerk, and 

Shannon Standifer, a latent fingerprint examiner with the San Antonio Police Department.

Lalani testified that, on August 15, 2019, she was working as a cashier at Mariposa 

Groceries. On that afternoon, months before the COVID-19 pandemic, Lalani noticed a man with 

tattoos on his arm and hand enter the store while wearing a bandana that covered his face. The 

man’s masked appearance immediately raised Lalani’s suspicion. The man approached Lalani, 

“banged on the lottery box,” and exclaimed to her, “give me money, give me money.” Lalani 

described the man’s voice as “strong” and “demanding” and how she felt “scared” and “truly 

terrified.” Lalani testified that in that moment she thought he might have a weapon and “he’s 

going to hurt me.” Lalani then put her hands up and gave the man approximately two-hundred 

dollars that was kept underneath the counter but outside of the cash register. The man responded 

by telling her, “open the register and give me the money.” Lalani complied by opening the cash 

register and giving the man money from it. 

Standifer testified that she aided the investigation through fingerprint analysis. Standifer 

identified State’s Exhibit 9 as a latent print that was “lifted” from the front door of Mariposa 

Groceries. Before trial, Standifer, in accordance with a court order, took a fingerprint sample from 

Gonzales. This sample was marked as State’s Exhibit 10. The trial court admitted, without 

objection, State’s Exhibits 9 and 10. On examination by the State, Standifer testified:

STATE: I want to clarify that State’s Exhibit 9 were the latent prints lifted at 

the scene, correct?

STANDIFER: Yes.
04-21-00360-CR

- 3 -

STATE: And State’s Exhibit 10 was a print that you did this morning of the 

defendant you identified, correct?

STANDIFER: Yes.

STATE: And from those you said that the right thumb and the right palm 

matched the interior top left door; is that correct?

STANDIFER: Yes.

The State also questioned Standifer on State’s Exhibits 11, 12, and 13, which were purportedly 

Gonzales’s fingerprints that had been extracted from a Texas Department of Public Safety 

database. Gonzales objected to these three exhibits on hearsay grounds. Thereafter, the State did 

not urge their admission, and the trial court did not admit them into evidence.

The jury convicted Gonzales on one count of robbery, a second-degree felony enhanced by 

a prior adjudication for delinquent conduct constituting a felony offense. The trial court assessed 

punishment at confinement for forty years in the Texas Department of Criminal Justice and a fine 

of ten thousand dollars. Gonzales timely appeals from his judgment of conviction and sentence.

II. DISCUSSION

A. Sufficiency of the Evidence

In Gonzales’s first issue, he contends that the evidence is insufficient to support his 

conviction for the offense of robbery. 

1. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard set forth in 

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). See Blea v. State, 483 S.W.3d 29, 33 (Tex. 

Crim. App. 2016). Under that standard, we examine all the evidence in the light most favorable 

to the verdict and resolve all reasonable inferences from the evidence in the verdict’s favor to 

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

offense beyond a reasonable doubt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). 
04-21-00360-CR

- 4 -

An appellate court cannot act as a thirteenth juror and make its own assessment of the evidence. 

Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). Rather, a court’s role on appeal is 

restricted to guarding against the rare occurrence when the factfinder does not act rationally. Id. 

This rationality requirement is a key and explicit component of the Jackson sufficiency standard. 

See Jackson, 443 U.S. at 319.

A court conducting a sufficiency review must consider the cumulative force of all the 

evidence, even evidence not properly admitted. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. 

App. 2017); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Additionally, direct and 

circumstantial evidence are equally probative, and circumstantial evidence alone can be sufficient 

to establish guilt. Nowlin, 473 S.W.3d at 317.

“The trier of fact is the exclusive judge of the credibility and weight of the evidence and is 

permitted to draw any reasonable inference from the evidence so long as it is supported by the 

record.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). We must defer to its 

determinations. Nowlin, 473 S.W.3d at 317. However, inferences based on mere speculation are 

not sufficient to support a criminal conviction. Ramsey, 473 S.W.3d at 809.

2. Applicable Law

A person commits the offense of robbery if, in the course of committing theft and with 

intent to obtain or maintain control of the property, he intentionally or knowingly threatens or 

places another in fear of imminent bodily injury or death. TEX. PEN.CODE ANN. § 29.02. A person 

commits theft if he unlawfully appropriates property with intent to deprive the owner of property. 

Id. at § 31.03(a). 

Gonzales references Boston v. State, 410 S.W.3d 321 (Tex. Crim. App. 2013), and Brown 

v. State, No. 13-19-00276-CR, 2020 WL 5052762 (Tex. App.—Corpus Christi-Edinburg July 30, 

2020, no pet.) (mem. op., not designated for publication), in support of his first issue. In Boston, 
04-21-00360-CR

- 5 -

a convenience store robber and his accomplice were tried on one count of aggravated robbery. 

Boston, 410 S.W.3d at 322. The store clerk, according to the Texas Court of Criminal Appeals, 

testified:

that she did not realize that [the robber] had a firearm until she saw the video of the 

robbery. She also testified that she was “very upset” and “shocked” during the 

robbery. When asked if [the accomplice] threatened her, she stated that the robbers 

“didn’t say anything.” When asked if she perceived [the robber’s] actions as 

threatening, [the clerk] stated that putting a firearm on the counter is threatening 

behavior, but she conceded that she never saw the firearm. She also testified that, 

during the robbery, she feared that she could be injured, perhaps seriously, and that 

she would not have run outside after [the accomplice] and [the robber] if she knew 

that they had a firearm.

Id. A jury convicted the accomplice under the law of parties, and the Texas Court of Criminal 

Appeals affirmed the conviction. Id. at 323, 327. The court explained the distinction between 

when a robber threatens a person with imminent bodily injury or death and when a robber places 

a person in fear of imminent bodily injury or death. Specifically,

[R]obbery-by-placing-in-fear does not require that a defendant know that he 

actually places someone in fear, or know whom he actually places in fear. Rather 

it requires that the defendant is aware that his conduct is reasonably certain to place 

someone in fear, and that someone actually is placed in fear.

Boston, 410 S.W.3d at 325 (quoting Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App. 

2011)). Alternatively,

[O]ne can threaten without necessarily placing another in fear of imminent bodily 

injury. A logical inference . . . is that “threatening,” as used in the Penal Code, does 

not require that the intended victim perceive or receive the threat, but “placing 

another in fear of imminent bodily injury does.”

Boston, 410 S.W.3d at 326 (quoting Olivas v. State, 203 S.W.3d 341, 346 (Tex. Crim. App. 2006)).

In Brown, the appellant was convicted on two counts of aggravated robbery of a store. 

2020 WL 5052762, at *1. On appeal, the appellant argued that because the store clerk did not 

testify, there is insufficient evidence that he was actually placed in fear or that he perceived a threat 
04-21-00360-CR

- 6 -

of imminent bodily injury or death during the robbery. Id. at *3. The Thirteenth Court of Appeals 

disagreed, writing that:

Although [the store clerk] refused to testify regarding any specifics of the robbery, 

he acknowledged under oath that he was in the robbery surveillance video. The 

video showed [the store clerk] pacing, rubbing his face, and placing his hands on 

his head. The video also shows [the store clerk] opening the safe with [the 

accomplice] nearby, holding a firearm.

Id. (footnote omitted).

3. Analysis

Generally, Gonzales argues that the evidence is insufficient to support a finding that he

intentionally or knowingly threatened or placed Lalani in fear of imminent bodily injury or death. 

Specifically, Gonzales argues that the evidence is insufficient because “he only banged his hand 

on the counter or next to a display next to the count[er]. He uttered no threatening words. He did 

not reach into the cash register. He only demand[ed]” money. We disagree. Lalani, similar to the 

clerk in Boston, 410 S.W.3d at 323, testified that she was “scared” and “truly terrified” by 

Gonzales’s words and actions, which included banging on the lottery box and demanding money 

from the cash register in a “strong” voice. Gonzales’s implicit contention that “threatening words” 

are required is not supported by Brown, 2020 WL 5052762, at *3, a case in which the store clerk 

refused to testify regarding the robbery specifics. Id. Viewing the evidence in the light most 

favorable to the verdict, we conclude a rational fact finder could have found beyond a reasonable 

doubt that Lalani was fearful and perceived a threat of imminent bodily injury or death. TEX. PEN.

CODE ANN. § 29.02. We overrule Gonzales’s first issue.

B. Lesser-Included Offense

In Gonzales’s second issue, he contends that the trial court erred in refusing his jury-charge 

request for the lesser-included offense of theft. 
04-21-00360-CR

- 7 -

1. Standard of Review and Applicable Law

We conduct a two-part Aguilar/Rousseau analysis to determine whether the trial court was 

required to provide the jury with an instruction on a requested lesser-included offense. See 

Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d 

556, 558 (Tex. Crim. App. 1985); see also State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App.

2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). 

First, we must determine as a matter of law whether the requested instruction is indeed a 

lesser-included offense of the offense charged, using the “cognate-pleadings” approach. Meru, 

414 S.W.3d at 162; Cavazos, 382 S.W.3d at 382. Gonzales and the State agree that theft is a lesser 

included offense of robbery. See Earls v. State, 707 S.W.2d 82, 84–85 (Tex. Crim. App. 1986) 

(“[t]heft, by whatever method committed,” is a lesser-included offense of robbery, when the 

indictment alleges that the defendant committed a violent act in the course of committing theft); 

see also Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (finding theft to be a lesserincluded offense of robbery). 

Second, we must review the evidence presented at trial and determine whether there is any 

evidence in the record that would permit a rational jury to find that if the defendant is guilty, he is 

guilty only of the lesser offense. See Meru, 414 S.W.3d at 162–63; Guzman v. State, 188 S.W.3d 

185, 188–89 (Tex. Crim. App. 2006). In making this determination, we should not consider 

whether the evidence presented was “credible, controverted, or in conflict with other evidence.” 

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). “[A]nything more than a scintilla of 

evidence may be sufficient to entitle a defendant to a charge on a lesser offense.” Cavazos, 382 

S.W.3d at 385; see also Meru, 414 S.W.3d at 163.
04-21-00360-CR

- 8 -

2. Analysis

In Gonzales’s brief, he argues that:

[T]he lesser included offense of theft must have been given to the jury. Without 

the lesser included offense, the jury was forced to decide the defendant was not 

guilty or did some bad act by taking the money from the clerk while banging his 

hands on the counter. His behavior certainly wasn’t mundane by any means, but 

was it enough to amount to a robbery, is the question. The jury had no middle 

ground on which to place their doubts. Therefore, the denial of the jury charge 

created harm, because the jury’s hand was forced to make the only decision 

available by which to punish the Appellant for his behavior. Indeed, due to the 

amount of money taken, the jury could have held Appellant guilty of Theft of $200, 

a Class B misdemeanor, if they wanted to punish him, but not to the extent of 

punishing him to the extent of prison for 40 years.

The State contends that Gonzales’s second issue fails because “there was no affirmative evidence 

presented at trial from which a rational jury could have found that if [Gonzales] was guilty, he was 

guilty only of theft, and not robbery.”

A rational jury could only have found Gonzales guilty upon concluding that Lalani parted 

with the money only because of Gonzales’s demands, which caused Lalani to become “scared” 

and “truly terrified.” If Gonzales unlawfully appropriated the money, it was only because he 

intentionally or knowingly threatened or placed Lalani in fear of imminent bodily injury or death. 

See TEX. PEN. CODE ANN. §§ 29.02, 31.03(a). In other words, on this record, if Gonzales 

committed theft, he also committed robbery. See id. Gonzales has not directed us — and we 

cannot find — any evidence in the record that would permit a rational jury to find that if Gonzales

is guilty, he is guilty only of the lesser offense of theft. See Meru, 414 S.W.3d at 162–63. 

Therefore, we overrule Gonzales’s second issue.

C. Fingerprint Evidence

In Gonzales’s third and fourth issues, he contends that the trial court erred in admitting 

scientifically unreliable fingerprint analysis and his fingerprints from a prior criminal proceeding. 

At times, Gonzales couches these contentions as a violation of the Confrontation Clause. The 
04-21-00360-CR

- 9 -

State responds by arguing that Gonzales failed to preserve these alleged errors for appellate review. 

Gonzales does not direct us to — and we cannot find — any part of the record wherein he lodged 

an objection that comports with his third and fourth issues. Indeed, Gonzales lodged no objection

to the State’s examination of Standifer wherein she linked him to State’s Exhibits 9 and 10. “An 

objection stating one legal theory [at trial] may not be used to support a different legal theory on 

appeal.” Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State, 

803 S.W.2d 272, 292 (Tex. Crim. App. 1990); see also Paredes v. State, 129 S.W.3d 530, 535 

(Tex. Crim. App. 2004) (holding that defendant failed to preserve Confrontation Clause complaint 

for appellate review when trial objection was solely on hearsay grounds). We conclude that 

Gonzales failed to preserve his third and fourth issues. Accordingly, we overrule Gonzales’s third 

and fourth issues.

III. CONCLUSION

We affirm the trial court’s judgment.

Rebeca C. Martinez, Chief Justice

DO NOT PUBLISH