Ivan Coulston v. State ( 2005 )

                                                                                    NO. 12-04-00067-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IVAN COULSTON,                                            §     APPEAL FROM THE 145TH

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §     NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

            Ivan Coulston appeals his conviction for two counts of engaging in organized criminal activity. Appellant raises two issues on appeal. We affirm.

Background

            On December 17, 2002, Rafael Hernandez, Dominga Gonzales, Louis Zarate, and others were gathered for a cookout at the residence of Paul Gonzales in Nacogdoches, Texas. Some of the attendees were members of the Southside 13 street gang. That day, Mateo Benitez, a member of the rival Latin Kings street gang, had upset members of the group when he arrived at the residence and attempted to start a fight with Zarate. During the exchange between Benitez and Zarate, Hernandez broke the rear window of Benitez’s vehicle with a rock. Benitez drove away making threats of vengeance.

            Later that night, Hernandez and Dominga were sitting and talking on the tailgate of a truck. Suddenly, multiple shots rang out. The shots originated from a nearby small wooded hill. Dominga was struck in the back by one of the shots, and Hernandez was struck in the foot by another. Dominga suffered internal injuries, including a collapsed lung. She underwent surgery and survived. Hernandez, although injured, also survived.

            Appellant was charged with two counts of engaging in organized criminal activity. The matter proceeded to trial by jury.

            Nacogdoches Police Officer Robert Mobley, who testified on behalf of the State, stated that he was on patrol that night. Mobley testified that he was attempting to observe what he thought were people near the hill when shots were fired. Mobley drove to a parking lot near the hill where he found Thomas Gonzales waiting in a van. He then observed two or three suspects running from the woods toward the van. Mobley identified the clothing worn by one of these individuals as a light-colored muscle shirt, black wind pants with a white stripe down the side, and white gloves. Mobley testified that the area was wet and muddy at that time. Mobley further testified that he discovered a cell phone and a BellSouth two-way radio inside the van.

            Nacogdoches Police Officer Jeff Luman discovered Appellant at a house on Fredonia Street following the shooting. Luman testified that Appellant was crouched down inside a red Jeep Cherokee behind the house. Once Appellant was out of the vehicle, Luman observed that Appellant was sweating profusely and out of breath as if he had been running. Luman further stated that Appellant had scratches on his arms and “stick-tites” all over his clothing as if he had been running through the woods. Luman further stated that Appellant was wearing a gray sleeveless muscle shirt, tennis shoes, and a pair of black sweat pants with a white stripe down the side. Luman testified that Appellant had mud on his pant knees and shoes. Appellant was taken into custody and Luman, with consent, searched Appellant’s vehicle. In Appellant’s vehicle, Luman discovered a pair of white cloth gloves with dirt on the palms, a set of binoculars, a black ski mask with grass and dirt on it, and a cell phone located on the passenger seat of the Jeep. Detective Jerry Stone of the Nacogdoches Police Department later testified that he inventoried the Jeep and located, in addition to the items discovered by Luman, a Motorola walkie-talkie.

            Thomas Gonzales, a previously-convicted co-defendant for the offense in question, testified that Appellant was directly involved in the December 17 shooting. Thomas Gonzales, who admitted he was a member of the Latin Kings, testified that both Appellant and Benitez were also members of the Latin Kings. Thomas Gonzales stated that Benitez had some problems with Paul Gonzales earlier on the day of the shooting. Thomas Gonzales testified that he, Appellant, Benitez, and “Chino” met at Appellant’s house, moved on to Benitez’s house, where Appellant left his Jeep, and then left for Paul Gonzales’s home in the van with the plan of firing on Paul Gonzales’s house. Thomas Gonzales specified that Appellant carried an SKS assault rifle, which Appellant later told Thomas Gonzales he had thrown in the water at the “shooting place.” Thomas Gonzales stated that the SKS discovered at the scene resembled the one Appellant had with him that night. Thomas Gonzales further stated that the walkie-talkie in his van was one of two, which were specifically to be used to communicate during the shooting.

            Nacogdoches Police Department Detective Bob Killingsworth testified as a criminal street gang expert. Killingsworth stated that in 2002, Appellant was the actual and self-identified leader of the Latin Kings. Appellant stipulated to being a member of the Latin Kings. Killingsworth further testified that “nothing happens within the Latin King organization without leadership’s knowledge and approval. . . .”

            Thomas White, a forensic chemist with the Department of Public Safety Crime Laboratory, testified regarding two casts he made of shoe prints found on the hill from which the shots were fired. White compared the casts to an impression of the right shoe Appellant was wearing when he was arrested. White testified that the size and tread pattern of the shoe are similar to the size and tread pattern exhibited in the prints depicted in the two casts. Based on that fact, White testified that Appellant’s shoe could have made the shoe print. However, from such evidence, White stated that he could not determine that it was the very same shoe Appellant was wearing that made the shoe print.

            Appellant testified that after working in his yard that afternoon, he had gone to the home of a friend, Ovideo Castro, that evening to listen to music and drink beer. Appellant stated that he left Castro’s house at about 11:30 p.m. and was on his way home when he saw police activity in the area. According to Appellant, fearing that he would be pulled over for DWI, he drove to Benitez’s former house and sat in his car to “let some of [the] alcohol come down.” Castro also testified that Appellant had been at his house that night, but that Appellant had left sometime after 11:00 p.m.

            The jury ultimately found Appellant guilty as charged. The trial court sentenced Appellant to imprisonment for thirty years on the first count, which related to Dominga Gonzales, and fifteen years on the second count, which related to Hernandez. The trial court ordered that sentences run concurrently. This appeal followed.

Accomplice Testimony

            In conjunction with his first and second issues, which are discussed below, Appellant argues that Thomas Gonzales’s testimony is not sufficiently corroborated. Texas Code of Criminal Procedure article 38.14 states that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). In order to determine whether accomplice witness testimony is corroborated, we must eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect the appellant to the offense. See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997); Thompson v. State, 54 S.W.3d 88, 93 (Tex. App.–Tyler 2001, pet. ref’d). The non-accomplice evidence does not have to directly link the appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the non-accomplice evidence merely has to tend to connect the appellant to the offense. See McDuff, 939 S.W.2d at 613. While the accused’s mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Thompson, 54 S.W.3d at 93–94.

            In the case at hand, the evidence, other than Thomas Gonzales’s testimony, that tended to connect Appellant to the offense is as follows:

              1.           Appellant stipulated to being a member of the Latin Kings street gang. Killingsworth testified that, in 2002, Appellant was the actual and self-identified leader of the Latin Kings. Killingsworth further testified that “nothing happens within the Latin King organization without leadership’s knowledge and approval....”

              2.           Mobley testified that he discovered Thomas Gonzales waiting in a van in a parking lot adjacent to the wooded area where the shots originated and observed two or three suspects running from the woods toward the van. Mobley identified the clothing worn by one of these individuals as a light-colored muscle shirt, black wind pants with a white stripe down the side, and white gloves. Mobley testified that the area was wet and muddy at that time. Mobley further testified that he discovered a cell phone and a BellSouth two-way radio inside the van.

              3.           Luman, who discovered Appellant at a house on Fredonia Street formerly occupied by Benitez, testified that Appellant was crouched down inside a red Jeep Cherokee behind the house. Once Appellant was out of the vehicle, Luman observed that Appellant was sweating profusely and out of breath as if he had been running. Luman further observed that Appellant had scratches on his arms and “stick-tites” all over his clothing as if he had been running through the woods. Luman stated that Appellant was wearing a gray sleeveless muscle shirt, tennis shoes, and a pair of black sweat pants with a white stripe down the side. Luman further testified that Appellant had mud on his pant knees and shoes. Luman searched Appellant’s vehicle and discovered a pair of white cloth gloves with dirt on the palms, a set of binoculars, a black ski mask with grass and dirt on it, and a cell phone located on the passenger seat of the Jeep. Stone, who inventoried the Jeep, located, in addition to the items discovered by Luman, a Motorola walkie-talkie.

              4.           White, who compared the footprint discovered in the wooded area from which the shots originated with a shoe Appellant was wearing at the time of his arrest, testified that the size and tread pattern of Appellant’s shoe are similar to the size and tread pattern exhibited in the prints depicted in the two casts taken from the scene. Based on that fact, White testified that Appellant’s shoe could have made the shoe print at the scene.

            We conclude that after eliminating Thomas Gonzales’s testimony, the other inculpatory facts and circumstances in evidence tend to connect Appellant to the offenses with which he is charged. Therefore, we hold that Thomas Gonzales’s testimony is sufficiently corroborated.

Evidentiary Sufficiency

            In his first and second issues, Appellant contends that the evidence is insufficient to support the jury’s verdict.

Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

            The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include 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 the defendant is tried.” Id.

            A person commits the offense of engaging in organized criminal activity if he, as a member of a criminal street gang, commits or conspires to commit, among other things, the crime of aggravated assault. See Tex. Pen. Code Ann. § 71.02 (Vernon Supp. 2004–05). “Criminal street gang” means three or more persons having a common identifying sign or symbol or an identifiable leadership, who continuously or regularly associate in the commission of criminal activities. Tex. Pen. Code Ann. § 71.01(d) (Vernon 2003).

            A person commits aggravated assault when he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2004–05). A “deadly weapon” includes a firearm. See Tex. Pen. Code Ann. § 1.07(a)(17)(a) (Vernon Supp. 2004–05).

            A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which he is “criminally responsible.” See Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is “criminally responsible” for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003).

            In the case at hand, Thomas Gonzales, who admitted he was a member of the Latin Kings, testified that both Appellant and Benitez were also members of the Latin Kings. Appellant stipulated to his membership in the Latin Kings. Killingsworth, a criminal street gang expert testified that in 2002, Appellant was the actual and self-identified leader of the Latin Kings, a street gang with between thirty to thirty-five members in Nacogdoches in 2002. Killingsworth also stated that nothing happens in the Latin Kings organization without the knowledge and approval of leadership. Killingsworth further testified that the Latin Kings are a nationwide organization in twenty-eight different states and have headquarters in Gary, Indiana. Killingsworth stated that the Latin Kings have identifying marks, such as a crown tattoo, pointed-up pitchfork, shaved heads, black and gold colors, and ball caps tilted to the left. Killingsworth further stated that the Latin Kings make hand signs in the form of either a crown or an “L.K.” Killingsworth also testified that the Latin Kings regularly committed criminal offenses in 2002.

            Thomas Gonzales testified that Appellant was directly involved in the December 17 shooting and that Appellant, Benitez, and Chino had planned the shooting at Paul Gonzales’s house. Thomas Gonzales stated that he, Appellant, Benitez, and Chino met at Appellant’s house, moved on to Benitez’s house, where Appellant left his Jeep, and then left for Paul Gonzales’s home in a van with the plan of firing on the Paul Gonzales’s house. Thomas Gonzales specified that Appellant had an SKS assault rifle, which Appellant later told Thomas Gonzales he had thrown in the water at the “shooting place.” Thomas Gonzales stated that the SKS discovered at the scene resembled the one Appellant carried that night. Thomas Gonzales also testified that Benitez had both a .45 and a .380 caliber handgun that night while Chino was carrying a nine millimeter. Thomas Gonzales further stated that the walkie-talkie in his van was one of two and was specifically to be used to communicate during the shooting. Stone, who inventoried the Jeep in which Appellant was discovered, located a Motorola walkie-talkie.

            Mobley testified that he heard gunshots and saw muzzle blasts from two different locations on the hill near the parking lot where he later discovered Thomas Gonzales waiting in a van. Hernandez testified that he saw muzzle flashes, which he referred to as sparkles, from two or three guns on the hill. Both Hernandez and Dominga Gonzales testified that they were struck by bullets after the shots were fired from the hill.

            Doctor James Redfield, Jr., who treated Dominga Gonzales and Hernandez at the hospital that night, testified that Dominga Gonzales suffered internal bleeding and a collapsed lung as a result of a gunshot wound. Redfield stated that without treatment, Dominga Gonzales would not have survived her injuries. Hernandez testified that he was shot in the foot, was treated at the hospital, and was later released. Redfield testified that an x-ray of Hernandez’s foot showed the bullet to be partially lodged in his heel. Hernandez stated that he still suffers occasional pain related to the injury.

            Mobley testified that immediately following the shooting, he observed two or three suspects running from the woods toward the van in which he had just discovered Thomas Gonzales. Mobley identified the clothing worn by one of these individuals as a light-colored muscle shirt, black wind pants with a white stripe down the side, and white gloves. Mobley testified that the area was wet and muddy at that time. Mobley further testified that he discovered a cell phone and a BellSouth two-way radio inside the van.

            Luman, who discovered Appellant at a house on Fredonia Street formerly occupied by Benitez, testified that Appellant was crouched down inside a red Jeep Cherokee behind the house. Luman observed that Appellant was sweating profusely and out of breath as if he had been running. Luman further observed that Appellant had scratches on his arms and “stick-tites” all over his clothing as if he had been running through the woods. Luman stated that Appellant was wearing a gray sleeveless muscle shirt, tennis shoes, and a pair of black sweat pants with a white stripe down the side. Luman further testified that Appellant had mud on his pant knees and shoes. Luman searched Appellant’s vehicle and discovered a pair of white cloth gloves with dirt on the palms, a set of binoculars, a black ski mask with grass and dirt on it, and a cell phone located on the passenger seat of the Jeep.

            White, who compared the footprint discovered in the wooded area from which the shots originated, testified that the size and tread pattern of the shoe Appellant was wearing at the time of his arrest is similar to the size and tread pattern exhibited in the prints depicted in the two casts taken from the scene. Based on that fact, White testified that Appellant’s shoe could have made the shoe print found at the scene.

            Examining the evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant, as a leader of the Latin Kings criminal street gang, promoted or assisted fellow gang members, Benitez and Chino, by directing, aiding, or attempting to aid them to commit aggravated assaults against Dominga Gonzales and Hernandez by intentionally, knowingly, or recklessly shooting them with firearms. Therefore, we hold that the evidence was legally sufficient to support the jury’s verdict. Appellant’s first issue is overruled.

Factual Sufficiency

            Turning to Appellant’s contention that the evidence is not factually sufficient to support the jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the

weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

            A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding “shocks the conscience” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481.

            As the court of criminal appeals explained in Zuniga, "There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?” See id. at 484.

            In the case at hand, in addition to the evidence already discussed, Appellant testified that after working in his yard that afternoon, he had gone to Castro’s house that evening to listen to music and drink beer. Appellant stated that he left Castro’s house at about 11:30 p.m. and was on his way home when he saw police activity in the area. According to Appellant, fearing that he would be pulled over for DWI, he drove to Benitez’s former house and sat in his car to “let some of [the] alcohol come down.” Castro also testified that Appellant had been at his house that night, but that Appellant had left sometime after 11:00 p.m.

            We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. It follows that the jury was entitled to find that Appellant and Castro were less credible than the witnesses who testified on the State’s behalf and that the facts they related concerning Appellant’s whereabouts on the night in question were not an accurate portrayal of the events that had, in fact, transpired. See, e.g., Thompson, 54 S.W.3d at 97. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the trial court’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s second issue is overruled.

Disposition

Having overruled Appellant’s issues one and two, we affirm the trial court’s judgment.

                                                                                                    DIANE DEVASTO

                                                                                                                 Justice

Opinion delivered June 15, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)