Opinion issued August 3, 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 18 - 01079 - CR

——————————— CHARLES R. JONES , Appella nt

V. THE STATE OF TEXAS , Appell e e On Appeal from the 179th District Court

Harris County, Texas T r ial Court Ca se No. 1510058

MEMORANDUM OPINION Charles Jones was convicted of aggravated robbery and sentenc e d to 30 years ’ confinement. His appellate counsel filed an Anders brief, 1 declaring there

1 See Anders v. California , 386 U.S. 738 (1967)

.2

were no nonfrivolous base s for appeal. After this court affi rmed his conviction, 2 the Court of Criminal Appeals granted Jones ’ s pro se petition for discretionary review and remanded. 3 On remand, Jones presents three issues. In the first tw o , Jones challenges the sufficienc y of the evidence and the trial court ’ s ruling to denying his motion for mistrial

. T he State opposes both issues. I n the third issue , Jones contends th at the case must be remanded for a new punishment tr ial because the State failed to properly invoke the enhancement punishment range. The Stat e concedes the third is s ue and agrees that remand is proper. Beca use we overrule Jones ’ s first t wo issues and sustain his third, we affirm the portion of the trial court ’ s judgment finding Jones guilty of aggra vated ro bbery, reverse the portion of the judg ment imposi ng a sentenc e of 30 years ’ confin ement , and remand for a new punish ment trial

. Background K. Wright is a Fed Ex driver

. In May 201 6, she was driving another employee ’ s route. One of her stops was at an AT&T store in Webster to deliver

2 Jones v. State , No. 01

- 18

- 01079

- CR, 2020 WL 1466982 (Tex. App.

— Houston [1st Dist.] Mar. 26, 2020) (mem. op., not designated for publication) ( per curiam) , vacated , PD

- 0380

- 20, 2020 W L 5814603 (Tex. Crim. App. Sept. 30, 2020) (per curiam)

. 3 Jones v. State , PD

- 0380

- 20, 2020 WL 5814603 (Tex. Crim. App. Sept. 30, 2020) (per curiam)

.3

boxes of c ell phones

. As s he got o ut of her truck to begin the d elivery, a man got out of a n SUV and walked toward her . He was wearing a FedEx shirt and had a white hockey mask covering his face. She though t it was a coworker playing a joke. But then she saw that he had a gun. The robber go t into her truck and told her to drive away . Two people saw Wright being robbed. A. Stromeyer and M. Lutkenhaus were on their way to the A T&T store when they saw the robber point t he gun at Wright. Lutkenha us has a license to carr y a concealed weapon. H e drew his weapon and approached the F edE x van, but when Wright saw Lutkenhaus , she though t he was assistin g the robbe r, not trying to he l p her. Lutkenhaus could not find a position to safely help Wright. When the FedEx truck began t o drive awa y , Lutkenhau s got b ack into his vehicle with Stromeyer and followed the truck

. The robber had Wr ight stop the truck at a second location. He asked her which box had the phones in it. H e could not determine which boxes were the

cor rect ones, so he had Wright help him loc ate the boxes he was searching for

. Wright found and g ave him the AT&T boxes. Wright thought the robber would leave at that point, but he pointed the g un at her again and told her to ge t into the back of the FedEx truck. She did. Once he was in the fron t o f the truck, she closed the door between the t wo spaces , opened the back of the truck, and ran into a nearby store for help. The robber drove away in t he F edEx truck

.4

Meanwhile, Lutkenhaus a nd Stro meyer were on the phone with a 9 11 operator wh ile they fol lowed the FedEx truck. They did not see Wright run from the truck into the store. They thought she was still in the truck with the robber, so they co ntinued to follow the FedE x truck to a third location at an apartm ent complex

. Lu tkenhaus and Stromeyer wai ted there for the police to arrive. After the police a rrived, as they were talking to Lutkenhaus, L utkenh aus was told that a suspect had been detained and asked if he could attempt an identification. L utkenhaus told the police tha t he would be unable to identify the robber by appearance because the robber w ore a hockey mask to shi eld his face. But Lutkenha u s thought he c ould identify the robber by h is clothing. Lutkenhaus said that the robber wore a white hockey mask, a black hoo di e, and bla ck gloves. The police showed Lutkenhaus a black hoodie and g l oves that they found near where Jone s was arrested. Lut kenhaus said they were the same items he saw the robber wearing earlier. Sergeant M. Quintanilla with the Houston Police Departme nt testifi ed about encountering Jones. He was told that a stolen vehicle was left at an apartment complex. He was told that the suspect ran west. Quintanilla went t hat direction to a gas station. He saw a man run past him . Quintanilla foll owed and found Jo nes hiding be hind a dumpster. Jones was taki ng of f a black hoodie . Quintanilla began to give Jon es demands. Jones com pl ied and was arrested. Quintanilla recovered the5

black ho odie, which had been shoved between the dumpster and the store wall. The police l ooked arou nd the area for a weapon but did not locate one. Quintanilla retur ned to the area the next day to searc h again for the weapon. He retraced the p ath between where the FedEx truc k was recovered and where he arrested Jones. Along that path, he found som e item s i n the shrubs. He found a black semia utomatic gun and a purple a nd black FedEx shirt. Quintanilla identified Jo nes in the courtroom as the person he arrested. T he police compare d Jones ’ s DNA sample to DNA found on the black hoodie s tuf

fed betw een the dumpster and store. The D NA analysis determined that Jones was a major contributor of the DNA on the ho o die

. The other items tested did not have enough DNA data for interpretation. T he police obtained a search warrant to search th e phone that Jones had with hi m when he was arrested. Investigator N. Gates with the Harris County Dist rict Attorney ’ s office testified about extract ing data fr om the phone. The data was comp iled into a report. Officer J. Scott testified about text mess age s deta il ed in the report. On the morning of the robbery, between 8:00 and 8:30 am, Jo nes sent four
texts :

• U know Today Thurs I got some major shit going u forgot? No! I

can ’t depend on to take ass for shit

• Just got a call from my home boy . . . I ’m bo ut to miss s ome major m ajor money on that truck . . . Thanks6

• J ust got a C A ll from my boy I ’m bout to miss out on some major major money

. . . . . . . t hanks

• Just got a call from my home boy we bout to miss the major loa d on FexEd j is T hu s, on the mo rning of the robbery of a FedE x truck, Jones sent text message s about a “major load on Fed Ex ” and “major major money. ” One of those message s was to Jones ’ s girlfriend. The police investigation determined that his girlfriend d rives a n SUV that m atches the vehicle th at the robber got out of when he approached the FedE x driver wh ile holding a gun. After the FedEx driver , the two eye witnesses wh o followed the FedEx truck, and the police officers and investigators testified, the State re st ed. The de fense rested without cal ling any witnesses

. After closing arguments, the jury deliberated and returned a verdict of guilty on the charge of a ggra vated robbery. At the punishment phas e of the trial, the State had “ pen pa ckets ” ad mitted into evidence. Thes e documents included j ud g ments of convictio n and sentencing orders for past offenses . Each identified the convicted defendant as Charles Jones. The first was a judgment of conviction f or the offense of b urglary of a hab it ation with intent to commit theft . The date of the judgme nt was November 20, 1 998 . The judgment includes a notation that the conviction was appealed

. There is no indication in the record of the ap peal ’ s outcome.7

The second was a judgment of convi ct ion for the offense of aggravated robbery. The date of the judg me nt was the same as th e burglary conviction. This judgment also included a notation that it was appeal ed but no indica tion of the appeal ’ s outcome
. Doc umentation of three other offenses were included in the pen packet. The se convictions were for posse ssi on of a controlled subs tance in 1998, possession with intent t o deliver in 2011 , and credit card abuse in 2013

. Th ere was only one witness during the punishment phase of th e trial . R

. Reed testified that the fingerprint he obtained from Jones on the da y o f trial matched the fin ger

prin t s on the criminal judgmen ts of conviction and sentenc ing orders presented to the jury

. In other words, the person whose fingerprints we re taken upon sente ncing for various past crimes is the same person charged for this ag gra vated robbery and ident ified in court as Charles Jones. During closing arguments, the jury was told that, if they found that Jones had two prior enhancement offense s, based on the evidence presented, then the punishment range was between 25 years and li fe. The defense asked for a sentence on the lower end, arguing that Jones ’ s past crimes were linked to drug use and the lack of a support system. The Stat e asked for a 50

- year sentence. The jury returned a sentence of 30 years. Jone s appealed.8 Sufficien cy of the evidence In his fir st issue, Jones challenges the sufficiency of the evidence to support his conviction. A. Standard of r eview We review sufficiency o f the evidence using the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 318 (1979). See Bro oks v. State , 323 S.W.3d 8 93 , 898

– 912 (Tex. Crim. App. 2010). Under that standard, “the relevant question is whether, after viewing the evidence in the li gh t most favorable to the prosecution, any rational trier of fact could have found the essential el eme nts of the crime beyond a re asonable doubt.” See Jackson , 443 U.S. at 319 ; Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider all re as onable inferences that may be drawn from the evidence in making our determination, including all dir ect and ci rcumstantial evi dence. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Evidence is insufficient in four circumstances: (1) no evid en ce exists that is probative of an element of the offense in the record; (2) only a “modicum” of

e vid ence e xists that is probat ive of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the alleged acts do not

es tablish the criminal offense charged. See Jackson , 443 U.S. at 314, 320 ; Laster ,9

2 75 S.W.3d at 51 8; Williams v. State , 235 S.W .3d 742, 750 (Tex. Crim. App. 2007). The jury has the exclusive role of evaluating the facts, the credibility of the witnesses, an d the weight a witness ’ s testimony should be given. Penagraph v. State , 623 S.W. 2d 341, 343 (Tex. Cr im. App. [Panel Op.] 1981) ; Jaggers v. State , 125 S.W.3d 661, 672 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref ’ d). The jury may choose to believe all, so me , or none of a witness ’ s testimony. See Davis v. State , 177 S.W.3d 355, 358 (Tex. App.

— Houston [1 st Dist.] 2005, no pet.). And the jury alone must reconcile any conflicts in the evidence. Wyatt v. State , 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Under the J

ackson standard, we defer to the factfinder “to resolve conflicts i n the testimony, to weigh the evi dence, and to draw reasona ble inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 319 ; Clayton , 235 S.W.3d at 778. If there are conflicts i n the evidence, we must presume the factfinder re solved the conflicts in favor of the verdict and de fer to that determination, as long as it is rational. See Jackson , 443 U.S. at 326 ; Penagraph , 623 S.W.2d at 343 (“A jury is entitled to accept one versio n of the facts and reject another or reject any of a witness ’ [s] testimony.”). Contradictory eviden ce will not diminish the lega l sufficiency of the evidence that supports the verdict. See McDonald v. State , 462 S.W.2d 40, 41 (Tex. Crim. App. 1970). If the e vidence is insufficient, we mus t10

reverse and enter an order of acquittal. See Tibbs v. Florida , 4 57 U.S. 31, 41 (1982). B. Legall y sufficient evidence supp orts the judgment o f conviction The evidence was legally sufficient. W right testified that a man weari ng a FedEx shirt robbed her at gun point

. S tromeyer and L utkenhaus te stified t h at they saw the robbe ry occur. They recall seeing the robber wear a b lack hoodie. A search of the area where Jones was arrested revealed a discarded FedEx shirt , a hidden black hoo di e with Jones ’ s DNA on it, and a gun matching the description given by Wright and Lutkenhaus. Th ere was more. Lutkenhaus foll owed the FedEx truck from the site of the robbery to where it was abandoned. He and Stromeyer alerted the police to where the FedE x truck was abandoned. Jones was found shortl y after ward by the pol ice. He w as behind a dumpster at a nearby property. The hoo die was sta shed behind the dumpster. The FedEx shirt and gun were found along the path between th e two locatio ns. Moreover, a sea rch of Jones ’ s phone, which was t aken from him when he was arrested, revealed text messages from Jo n es on the morning of the ro bbery discussing a “ major load on Fed Ex ” and

“ major major money. ” And the vehicle the robber exited to begin the robbery matched the veh icle of Jones ’ s girlfri end

— who was one of the people Jones te xted that m orning about a maj or load on Fed Ex.11

W hile much o f the evidence is circumstantial, its cumulative force provided more than a scintilla of evidence to support a reasonable conclus ion tha t Jones was the Fed Ex robber. See Jackson , 443 U.S. at 320 (s etting forth standard for leg al insuffi ciency)

. To the exte nt the re was any evidence suggesting otherwise, the ju r y has the ex clusive role of weighing the evidence and the witnesses ’ cre di bility, and we will defer to their determinations as evinced by their verdict of guilt. See id. a t 3 26 ; McDonald , 462 S.W.2d at 41

. Ruling to Den y Mistrial In his second issue, Jones challenges the trial court ’ s denial of his moti on for mistrial. A. Standard of revi ew and applic able law A mistrial halt s the trial proceedings when error is so prejudicial tha t expenditure of further ti me and expense would be wasteful and futile. Ladd v. State , 3 S.W.3d 547, 56 7 (Tex. Crim. App. 1999). A trial court may properly exercis e its discretion to declare a mistrial if an impartial verdict cannot be reached or if a v e rd ict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Id. An outburst by a witness or other bystand er “ ‘wh ich interferes with the normal proceedings of a trial will not result in reversible error unl ess the defendant shows a r easonable probability that the conduct interfered with the jury ’ s verdict.’ ”12

Gamboa v. State , 296 S.W.3d 574, 580 (Tex. Crim. App

. 2009) (quoting Landry v. State , 706 S.W.2d 105, 112 (Tex. Crim. App. 1985) )

. I nstructions to th e j ury are generally considere d sufficient to cure improprieties , such as witness outbursts , because it is presumed that the jury will follow those instruction s. Cobl e v. State , 330 S.W.3d 253, 292 (Tex. Crim. App. 2010) ; Gamboa , 296 S.W.3d at 580. We revi ew the denial of a motion for mistrial under an abuse of discretion standard. Coble , 330 S.W.3d at 292 ; Gamboa , 296 S.W.3d at 580. An appellate court views the eviden ce in the light most favorable to the trial court ’ s ruling, considering only those argumen ts before the court at the tim e of the ruling. Wea d v. State , 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). The ruling must be upheld if it was within the zone o f reaso nable disagreement. Id. Ou r determination of whether a n
error requires a mistrial is m ade by examining the particular fa cts of the case. Ladd , 3 S.W.3d at 56 7

. A mistrial is an appropriate remedy only in “extreme circumstances” for a narrow clas s of hi ghly prejudicial and incurable errors. Haw kins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App

. 2 004); Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Its occurrence should be “ exceedingly uncommon. ” Williams v. State , 417 S.W.3 d 162, 175 (Tex . App.

— Houston [1st Dist.] 2013, pet . ref ’ d)

. Because it is an extreme remedy, a mistrial should be granted “only when residual pre judice remains” afte r less drastic alternatives are explored. Barnett v. State , 16113

S.W.3d 128, 134 (Tex. App.

— Fort Worth 2005) , aff ’ d , 189 S.W.3d 272 (Tex. Crim. App. 2006)

. B. N o abuse of discreti on is s hown on this record As for the identi ty of the robber, Wright testified that she was robbed by a n unk nown man in a hockey mask. She testified that she did not “ know what he looked like ” because he wore his mask the en tire ti me he was in her FedEx truck. On cross

- examinatio n, she again confirmed that she did n ot see the robber ’ s face and could not ident ify him

. She could only identify the robber by wh at he wor e and the weapon he held : a Fed Ex shir t and a white hockey mask , along with a bla ck , small gun . Just after Wright testified, defense counsel moved for a mis trial. Counsel stated that he heard Wright blurt out as she was leaving the witness stand, “ That ’ s him , ” and ar gued th at the sta tement was made near the jury

. There is no indication in the record that a nyone, other than defense counsel, heard the alleg e d s tateme nt. The Court re sponded by instructing the jury that they were to disregard any statement by Wright that was made after leaving the stand, if they heard any
statement
. The trial court asked the ju ry if it understood their instruction , and the jur o rs replied in uni son, “Yes. ” The trial court followed that inst ruction with a

sec ond i nstruction that the jurors were not to consider such statement during its14

deli berations or e ven mention it. Jones made no further objection or motion on the
matter. A n in str uction t o disregard is generally sufficient to cure prejudicial effe cts

o f an improper statement. See Barney v. State , 698 S.W.2d 114, 125 (Tex. Crim. App. 1985) ( witness ’ s reference to the defendant as an “ ex - con ” cured by instruction to disregard stat eme nt) . And we generally presume the jury follows the trial court ’ s ins truct ions, though the presumption is rebuttable. See Colburn v. State , 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) ; Waldo v. State , 746 S.W.2d 750, 752

– 53 (Tex. Crim. App. 19 8 8)

. Here, the witness had already testified that the robb er ’s face was covere d by a ho ckey mas k throughout the robbery. On cross

- examination, she confirmed that she did not see the robber ’s face and would be unable to identify him

. Her only source of identifying him was by his clothing and gun. Her alleged stat ement after leaving the witness stand of “that ’s him ” conflicts with her s worn t estimony, just minutes earlier, that she could not identify the ro bbe r . This incon sistency weighs against a determination tha t the alleged statement was so extre me and pr ejudicial
as to require a m istrial. Similar outbursts upon l eaving the witness stand have, likewise, been held to be curable by an in struction to disregard. See Jimenez v. State , 298 S.W.3d 203, 213 (Tex. App.

— S an An tonio 2009, pet. ref ’d) (witnes s, when n ot being question ed by either counsel, blurted out, “ Well, I got to say it. Mr.15

Jimenez planned the murder. I ’ m sorry, but he did , ” and the appellate court h eld that the event was curable by jury instruction to disre gard) ; see also Jay M. Zitter, Annotation, E MOTIONAL M ANIF ESTATIONS BY V ICTIM OR F AMILY OF V ICTIM D URING OR I MMEDIATELY B EFORE OR A FTER O WN T ESTIMONY D URING C RIMINAL T RIAL AS G ROUND FOR R EVERSAL , N EW T RIAL , OR M ISTRIA L , 99 A.L.R. 6th 113 (2014) (discussing cases from multiple j urisdictions in which outbursts from witnesse s were held to be curable by jury in struction); cf

. Gonzalez v. State, N o. 14

- 11

- 00995

- CR, 2013 WL 396075 (Tex. Ap p.
— Houston [14th Dist.] Jan. 3, 2013 , no pet.) (mem. op., no t designated fo r publi cation ) ( trial court did not abuse its discreti on in denying motion for mistrial although , as she was leaving the witness stand, the complainant held her hands in pray er and said “ please ” to the jury , given that trial court admonished jurors not to consi der her plea and jurors confirm ed they coul d disregard the plea)

. Jones had the burden to rebut the presumption that the curative instruction was adequate. Colburn , 966 S.W.2d at 520 . Jones presented no evidence on the matter. He did not try to establ ish a record of where the witness was w hen the

s tatement was made, how close she was to the jury, whether any juror heard h er statement, or the possibility t hat the jury would be unable to follow the trial court ’ s instruction. The record is limited t o coun sel ’ s own statement that couns el heard the remark. A fter the trial court gave the instruction, Jones dropped the matt er , neither16

seeking to establis h a record on the event nor objecting that the instruction was insufficient. The trial cour t gave a curative instruction

. The jury stated that they

un derstood the instruction. A nd Jones presented no evidence to rebut the presumption that the jury complied with the instruction. Given all the evidence

— including Wright ’ s testimony u nder oath that sh e could not iden ti fy the robber because his face was shielded throughout their encounter

— and the trial court ’ s instruction to the jury to disre gar d any state ment she made once she left the witness stand , we cannot say that the prejudicial effect of the all eged statement w as so severe as to nullif

y the instruction to disregard . Nor can we c onclude that the trial court ’ s refusal to use the ex treme remedy of declaring a mistrial was outside the zone of reasonable judicial disagreement

. See Montgomery v. State , 810 S.W. 2d 372, 391 (Tex. Crim. App. 199 1 ). Thus, the trial court did not abuse its discretion

. Appellant ’ s second issue is overruled.

E vidence for Enhancement I n this third issue, Jones contends reversal for a new punishment tr ial is required b ecause the State ’ s eviden ce to invoke an e nhanced punishme nt range failed to establish all aspects of the prior conviction to allow enhancement.17

A. A pplicable law When seeking enhancement based on a conviction of a prior offense, the State m ust prove beyond a reasonable doubt that t he prior conviction exists and that the defendant is linked to that conviction. Flowers v. Sta te , 220 S.W.3d 919, 921 (Te x. Crim. App. 2007). When the State provides prima facie evidence of an enhancement convictio n , a n appellate c ourt will presume the con viction is final if the record is silent about finalit y . Fletcher v. State , 214 S.W.3d 5, 8 (Tex. Crim. App. 2007). I f, however, the evidence raises a question of finality, the State has the burden of proof to show that the en hancement convicti on was a fin al conviction

. See id. When a conviction has been appealed, it is not considered final until it has been affir med on appeal and the appellate court ’ s mandate has issue d. Henry v. State , 331 S.W.3d 552, 555 (Te x. App.

— Houston [ 14 th Dis t.] 2011, no pet.). Co nsequently, if the State offers proof showing that a prior conviction was appealed, the State must put on evidence pr oving that a mandate issued. Id. at 556 ; Ex parte Chandler , 182 S.W.3d 350, 358 (Tex. Crim. App. 20 05). B. As the State concedes, there w as le gally insuffi cient evidence of a final conviction for enhancement The State concedes that the judgments submitted int o evidence to support enhancement each contai ned a notation that the judgments were appealed. The S tate did not submit any evidence that th e judgments were affirmed or that the appellate court ’ s mandates issued. Accordingly, the evidence was insufficient t o18

support eleva ti ng the punishment range under the habitual offender statute. Fletcher , 214 S.W.3d at 8; Henry , 331 S.W.3d at 555; see also T EX . P ENAL C ODE § 12.4 2 (enhancement for ha bitual offenders)

. Such an error requires reversal. See Fletcher , 214 S.W .3d at 9 (reversing intermedi ate appellate court and holding that appellate court cannot take judic ial n otice that a manda te issued; instea d, the State must be held to its burden to establish finality where evidence exists of an appeal, which then allows t he defendant an opportunity to rebu t the State ’ s evidence). We sustain Jones ’s third issue

. Conclus ion W e rev e rse the port ion of the trial court ’ s judgment imposing a sentence. We

a ffirm the remainder of the judgment of conviction. And w e remand for a new punishment tria l.

Sarah Beth Landau Justice Panel consists of Justices Radack, Lan dau, and Countiss. Do not publish. T EX . R. A PP . P. 47.2(b).