Opinion issued August 3, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-01079-CR

———————————

CHARLES R. JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1510058

MEMORANDUM OPINION

Charles Jones was convicted of aggravated robbery and sentenced 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 bases for appeal. After this court affirmed 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 two, Jones challenges the 

sufficiency of the evidence and the trial court’s ruling to denying his motion for 

mistrial. The State opposes both issues. In the third issue, Jones contends that the 

case must be remanded for a new punishment trial because the State failed to 

properly invoke the enhancement punishment range. The State concedes the third 

issue and agrees that remand is proper.

Because we overrule Jones’s first two issues and sustain his third, we affirm 

the portion of the trial court’s judgment finding Jones guilty of aggravated robbery, 

reverse the portion of the judgment imposing a sentence of 30 years’ confinement, 

and remand for a new punishment trial.

Background

K. Wright is a FedEx driver. In May 2016, 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 WL 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 cell phones. As she got out of her truck to begin the delivery, a man got 

out of an SUV and walked toward her. He was wearing a FedEx shirt and had a 

white hockey mask covering his face. She thought it was a coworker playing a 

joke. But then she saw that he had a gun. The robber got 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 AT&T store when they saw the robber point the gun at 

Wright. Lutkenhaus has a license to carry a concealed weapon. He drew his 

weapon and approached the FedEx van, but when Wright saw Lutkenhaus, she 

thought he was assisting the robber, not trying to help her. Lutkenhaus could not 

find a position to safely help Wright. When the FedEx truck began to drive away, 

Lutkenhaus got back into his vehicle with Stromeyer and followed the truck.

The robber had Wright stop the truck at a second location. He asked her 

which box had the phones in it. He could not determine which boxes were the 

correct ones, so he had Wright help him locate the boxes he was searching for. 

Wright found and gave him the AT&T boxes. Wright thought the robber would 

leave at that point, but he pointed the gun at her again and told her to get into the 

back of the FedEx truck. She did. Once he was in the front of the truck, she closed 

the door between the two spaces, opened the back of the truck, and ran into a 

nearby store for help. The robber drove away in the FedEx truck. 
4

Meanwhile, Lutkenhaus and Stromeyer were on the phone with a 911 

operator while they followed 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 continued to follow the FedEx truck to a third location at an apartment 

complex. Lutkenhaus and Stromeyer waited there for the police to arrive.

After the police arrived, as they were talking to Lutkenhaus, Lutkenhaus was 

told that a suspect had been detained and asked if he could attempt an 

identification. Lutkenhaus told the police that he would be unable to identify the 

robber by appearance because the robber wore a hockey mask to shield his face. 

But Lutkenhaus thought he could identify the robber by his clothing. Lutkenhaus 

said that the robber wore a white hockey mask, a black hoodie, and black gloves. 

The police showed Lutkenhaus a black hoodie and gloves that they found near 

where Jones was arrested. Lutkenhaus said they were the same items he saw the 

robber wearing earlier. 

Sergeant M. Quintanilla with the Houston Police Department testified 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 that direction to a 

gas station. He saw a man run past him. Quintanilla followed and found Jones 

hiding behind a dumpster. Jones was taking off a black hoodie. Quintanilla began 

to give Jones demands. Jones complied and was arrested. Quintanilla recovered the 
5

black hoodie, which had been shoved between the dumpster and the store wall. The 

police looked around the area for a weapon but did not locate one.

Quintanilla returned to the area the next day to search again for the weapon. 

He retraced the path between where the FedEx truck was recovered and where he 

arrested Jones. Along that path, he found some items in the shrubs. He found a 

black semiautomatic gun and a purple and black FedEx shirt. Quintanilla identified 

Jones in the courtroom as the person he arrested. 

The police compared Jones’s DNA sample to DNA found on the black 

hoodie stuffed between the dumpster and store. The DNA analysis determined that 

Jones was a major contributor of the DNA on the hoodie. The other items tested 

did not have enough DNA data for interpretation.

The police obtained a search warrant to search the phone that Jones had with 

him when he was arrested. Investigator N. Gates with the Harris County District 

Attorney’s office testified about extracting data from the phone. The data was 

compiled into a report. Officer J. Scott testified about text messages detailed in the 

report. On the morning of the robbery, between 8:00 and 8:30 am, Jones 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 bout to miss some major 

major money on that truck . . . Thanks
6

• Just got a CAll from my boy I’m bout to miss out on some major 

major money . . . . . . . thanks

• Just got a call from my home boy we bout to miss the major load on 

FexEd jis

Thus, on the morning of the robbery of a FedEx truck, Jones sent text messages

about a “major load on FedEx” and “major major money.” One of those messages

was to Jones’s girlfriend. The police investigation determined that his girlfriend

drives an SUV that matches the vehicle that the robber got out of when he 

approached the FedEx driver while holding a gun. 

After the FedEx driver, the two eyewitnesses who followed the FedEx truck, 

and the police officers and investigators testified, the State rested. The defense 

rested without calling any witnesses. After closing arguments, the jury deliberated 

and returned a verdict of guilty on the charge of aggravated robbery. 

At the punishment phase of the trial, the State had “pen packets” admitted 

into evidence. These documents included judgments of conviction and sentencing 

orders for past offenses. Each identified the convicted defendant as Charles Jones. 

The first was a judgment of conviction for the offense of burglary of a habitation 

with intent to commit theft. The date of the judgment was November 20, 1998. The 

judgment includes a notation that the conviction was appealed. There is no 

indication in the record of the appeal’s outcome.
7

The second was a judgment of conviction for the offense of aggravated 

robbery. The date of the judgment was the same as the burglary conviction. This 

judgment also included a notation that it was appealed but no indication of the 

appeal’s outcome. 

Documentation of three other offenses were included in the pen packet. 

These convictions were for possession of a controlled substance in 1998, 

possession with intent to deliver in 2011, and credit card abuse in 2013. 

There was only one witness during the punishment phase of the trial. R. 

Reed testified that the fingerprint he obtained from Jones on the day of trial 

matched the fingerprints on the criminal judgments of conviction and sentencing 

orders presented to the jury. In other words, the person whose fingerprints were 

taken upon sentencing for various past crimes is the same person charged for this 

aggravated robbery and identified in court as Charles Jones.

During closing arguments, the jury was told that, if they found that Jones 

had two prior enhancement offenses, based on the evidence presented, then the 

punishment range was between 25 years and life. 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 State asked for a 50-year sentence. The jury returned 

a sentence of 30 years. Jones appealed.
8

Sufficiency of the evidence

In his first issue, Jones challenges the sufficiency of the evidence to support 

his conviction.

A. Standard of review

We review sufficiency of the evidence using the standard enunciated in 

Jackson v. Virginia, 443 U.S. 307, 318 (1979). See Brooks v. State, 323 S.W.3d 

893, 898–912 (Tex. Crim. App. 2010). Under that standard, “the relevant question 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” See Jackson, 443 U.S. at 319; Laster v. State, 

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider all reasonable 

inferences that may be drawn from the evidence in making our determination, 

including all direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 

778 (Tex. Crim. App. 2007).

Evidence is insufficient in four circumstances: (1) no evidence exists that is 

probative of an element of the offense in the record; (2) only a “modicum” of 

evidence exists that is probative of an element of the offense; (3) the evidence 

conclusively establishes a reasonable doubt; and (4) the alleged acts do not 

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

275 S.W.3d at 518; 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, and the weight a witness’s testimony should be given. Penagraph v. 

State, 623 S.W.2d 341, 343 (Tex. Crim. 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, some, or none of a witness’s testimony. See Davis v. 

State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st 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 Jackson standard, we defer to the factfinder “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; Clayton, 235 S.W.3d at 

778. If there are conflicts in the evidence, we must presume the factfinder resolved 

the conflicts in favor of the verdict and defer 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 version of the facts and reject another or reject any of a 

witness’[s] testimony.”). Contradictory evidence will not diminish the legal 

sufficiency of the evidence that supports the verdict. See McDonald v. State, 462 

S.W.2d 40, 41 (Tex. Crim. App. 1970). If the evidence is insufficient, we must 
10

reverse and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41

(1982).

B. Legally sufficient evidence supports the judgment of conviction

The evidence was legally sufficient. Wright testified that a man wearing a 

FedEx shirt robbed her at gunpoint. Stromeyer and Lutkenhaus testified that they 

saw the robbery occur. They recall seeing the robber wear a black hoodie. A search 

of the area where Jones was arrested revealed a discarded FedEx shirt, a hidden 

black hoodie with Jones’s DNA on it, and a gun matching the description given by 

Wright and Lutkenhaus. There was more. Lutkenhaus followed the FedEx truck 

from the site of the robbery to where it was abandoned. He and Stromeyer alerted 

the police to where the FedEx truck was abandoned. Jones was found shortly 

afterward by the police. He was behind a dumpster at a nearby property. The 

hoodie was stashed behind the dumpster. The FedEx shirt and gun were found 

along the path between the two locations. Moreover, a search of Jones’s phone, 

which was taken from him when he was arrested, revealed text messages from 

Jones on the morning of the robbery discussing a “major load on FedEx” and 

“major major money.” And the vehicle the robber exited to begin the robbery 

matched the vehicle of Jones’s girlfriend—who was one of the people Jones texted 

that morning about a major load on FedEx.
11

While much of the evidence is circumstantial, its cumulative force provided 

more than a scintilla of evidence to support a reasonable conclusion that Jones was 

the FedEx robber. See Jackson, 443 U.S. at 320 (setting forth standard for legal 

insufficiency). To the extent there was any evidence suggesting otherwise, the jury 

has the exclusive role of weighing the evidence and the witnesses’ credibility, and 

we will defer to their determinations as evinced by their verdict of guilt. See id. at 

326; McDonald, 462 S.W.2d at 41.

Ruling to Deny Mistrial

In his second issue, Jones challenges the trial court’s denial of his motion for 

mistrial.

A. Standard of review and applicable law

A mistrial halts the trial proceedings when error is so prejudicial that 

expenditure of further time and expense would be wasteful and futile. Ladd v. 

State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court may properly 

exercise its discretion to declare a mistrial if an impartial verdict cannot be reached

or if a verdict 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 bystander “‘which interferes with the 

normal proceedings of a trial will not result in reversible error unless the defendant 

shows a reasonable 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)). Instructions to the jury are 

generally considered sufficient to cure improprieties, such as witness outbursts, 

because it is presumed that the jury will follow those instructions. Coble v. State, 

330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Gamboa, 296 S.W.3d at 580. We 

review 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 evidence in the light most favorable to the trial court’s ruling, considering only 

those arguments before the court at the time of the ruling. Wead v. State, 129 

S.W.3d 126, 129 (Tex. Crim. App. 2004). The ruling must be upheld if it was 

within the zone of reasonable disagreement. Id. Our determination of whether an 

error requires a mistrial is made by examining the particular facts of the case. 

Ladd, 3 S.W.3d at 567.

A mistrial is an appropriate remedy only in “extreme circumstances” for a 

narrow class of highly prejudicial and incurable errors. Hawkins v. State, 135 

S.W.3d 72, 77 (Tex. Crim. App. 2004); 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.3d 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 

prejudice remains” after less drastic alternatives are explored. Barnett v. State, 161 
13

S.W.3d 128, 134 (Tex. App.—Fort Worth 2005), aff’d, 189 S.W.3d 272 (Tex. 

Crim. App. 2006).

B. No abuse of discretion is shown on this record

As for the identity of the robber, Wright testified that she was robbed by an 

unknown man in a hockey mask. She testified that she did not “know what he 

looked like” because he wore his mask the entire time he was in her FedEx truck.

On cross-examination, she again confirmed that she did not see the robber’s face 

and could not identify him. She could only identify the robber by what he wore and 

the weapon he held: a FedEx shirt and a white hockey mask, along with a black, 

small gun. 

Just after Wright testified, defense counsel moved for a mistrial. Counsel 

stated that he heard Wright blurt out as she was leaving the witness stand, “That’s 

him,” and argued that the statement was made near the jury. There is no indication 

in the record that anyone, other than defense counsel, heard the alleged statement.

The Court responded 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 jury if it understood their instruction, and the 

jurors replied in unison, “Yes.” The trial court followed that instruction with a 

second instruction that the jurors were not to consider such statement during its 
14

deliberations or even mention it. Jones made no further objection or motion on the 

matter.

An instruction to disregard is generally sufficient to cure prejudicial effects 

of 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 statement). And we generally presume the jury follows the 

trial court’s instructions, 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. 1988). 

Here, the witness had already testified that the robber’s face was covered by

a hockey mask 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 statement after 

leaving the witness stand of “that’s him” conflicts with her sworn testimony, just 

minutes earlier, that she could not identify the robber. This inconsistency weighs 

against a determination that the alleged statement was so extreme and prejudicial 

as to require a mistrial. Similar outbursts upon leaving the witness stand have, 

likewise, been held to be curable by an instruction to disregard. See Jimenez v. 

State, 298 S.W.3d 203, 213 (Tex. App.—San Antonio 2009, pet. ref’d) (witness, 

when not being questioned 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 held 

that the event was curable by jury instruction to disregard); see also Jay M. Zitter, 

Annotation, EMOTIONAL MANIFESTATIONS BY VICTIM OR FAMILY OF VICTIM 

DURING OR IMMEDIATELY BEFORE OR AFTER OWN TESTIMONY DURING CRIMINAL 

TRIAL AS GROUND FOR REVERSAL, NEW TRIAL, OR MISTRIAL, 99 A.L.R. 6th 113 

(2014) (discussing cases from multiple jurisdictions in which outbursts from

witnesses were held to be curable by jury instruction); cf. Gonzalez v. State, No. 

14-11-00995-CR, 2013 WL 396075 (Tex. App.—Houston [14th Dist.] Jan. 3,

2013, no pet.) (mem. op., not designated for publication) (trial court did not abuse 

its discretion in denying motion for mistrial although, as she was leaving the 

witness stand, the complainant held her hands in prayer and said “please” to the 

jury, given that trial court admonished jurors not to consider her plea and jurors 

confirmed they could 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 establish a record of where the witness was when the 

statement was made, how close she was to the jury, whether any juror heard her 

statement, or the possibility that the jury would be unable to follow the trial court’s 

instruction. The record is limited to counsel’s own statement that counsel heard the 

remark. After the trial court gave the instruction, Jones dropped the matter, neither 
16

seeking to establish a record on the event nor objecting that the instruction was 

insufficient.

The trial court gave a curative instruction. The jury stated that they 

understood the instruction. And Jones presented no evidence to rebut the 

presumption that the jury complied with the instruction. Given all the evidence—

including Wright’s testimony under oath that she could not identify the robber

because his face was shielded throughout their encounter—and the trial court’s 

instruction to the jury to disregard any statement she made once she left the 

witness stand, we cannot say that the prejudicial effect of the alleged statement was

so severe as to nullify the instruction to disregard. Nor can we conclude that the 

trial court’s refusal to use the extreme 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. 1991). Thus, the trial court did not abuse its 

discretion. 

Appellant’s second issue is overruled.

Evidence for Enhancement

In this third issue, Jones contends reversal for a new punishment trial is 

required because the State’s evidence to invoke an enhanced punishment range 

failed to establish all aspects of the prior conviction to allow enhancement. 
17

A. Applicable law

When seeking enhancement based on a conviction of a prior offense, the 

State must prove beyond a reasonable doubt that the prior conviction exists and 

that the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 

921 (Tex. Crim. App. 2007). When the State provides prima facie evidence of an 

enhancement conviction, an appellate court will presume the conviction is final if

the record is silent about finality. Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. 

App. 2007). If, however, the evidence raises a question of finality, the State has the 

burden of proof to show that the enhancement conviction was a final conviction. 

See id. When a conviction has been appealed, it is not considered final until it has 

been affirmed on appeal and the appellate court’s mandate has issued. Henry v. 

State, 331 S.W.3d 552, 555 (Tex. App.—Houston [14th Dist.] 2011, no pet.). 

Consequently, if the State offers proof showing that a prior conviction was 

appealed, the State must put on evidence proving that a mandate issued. Id. at 556; 

Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005).

B. As the State concedes, there was legally insufficient evidence of a final 

conviction for enhancement

The State concedes that the judgments submitted into evidence to support 

enhancement each contained a notation that the judgments were appealed. The 

State did not submit any evidence that the judgments were affirmed or that the 

appellate court’s mandates issued. Accordingly, the evidence was insufficient to 
18

support elevating the punishment range under the habitual offender statute. 

Fletcher, 214 S.W.3d at 8; Henry, 331 S.W.3d at 555; see also TEX. PENAL CODE

§ 12.42 (enhancement for habitual offenders). Such an error requires reversal. See 

Fletcher, 214 S.W.3d at 9 (reversing intermediate appellate court and holding that 

appellate court cannot take judicial notice that a mandate issued; instead, the State 

must be held to its burden to establish finality where evidence exists of an appeal, 

which then allows the defendant an opportunity to rebut the State’s evidence).

We sustain Jones’s third issue.

Conclusion

We reverse the portion of the trial court’s judgment imposing a sentence. We 

affirm the remainder of the judgment of conviction. And we remand for a new 

punishment trial. 

Sarah Beth Landau

Justice

Panel consists of Justices Radack, Landau, and Countiss.

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