Jose Guadalupe Posada v. State ( 2001 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00520-CR
Jose Guadalupe Posada, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0984451, HONORABLE JON N. WISSER, JUDGE PRESIDING
Appellant Jose Guadalupe Posada appeals his convictions for engaging in organized
criminal activity and committing the predicate offense of aggravated assault,1 aggravated assault with
a deadly weapon, 2 and engaging in organized criminal activity and conspiring to commit the predicate
offense of aggravated assault.3 The jury found appellant guilty of these three offenses and assessed
his punishment at thirty-three years’ imprisonment for engaging in organized criminal activity and
1
See Tex. Penal Code Ann. § 71.02(a)(1) (West Supp. 2001). The current code is cited for
convenience. Appellant was prosecuted under § 71.02 as amended by Act of May 10, 1997, 75th
Leg., R.S., ch. 189, § 9, 1997 Tex. Gen. Laws 1045, 1048.
2
See Tex. Penal Code Ann. § 22.02(a)(2) (West 1994).
3
See note 1. Appellant describes the offense as “conspiracy to commit aggravated assault
with a deadly weapon.” This description does not match the allegations of the fourth count of the
indictment or the manner of submission of the fourth count to the jury.
committing the predicate offense, and at twenty years’ imprisonment for each of the other two
offenses. The jury acquitted appellant of attempted murder also alleged in the single indictment.
Points of Error
Appellant advances six points of error. All points challenge the sufficiency of the
evidence. The first two points of error contend that the evidence is legally insufficient to prove the
existence of a combination or a criminal street gang. The next two points present factual sufficiency
issues concerning the existence of a combination or criminal street gang. The last two points question
whether the evidence was legally or factually sufficient to prove the memberships of the combination
as required by the “authorization paragraph of the court’s jury charge.”
Although there are three convictions being appealed, the points of error are directed
only to the conviction for engaging in organized criminal activity and committing aggravated assault
as alleged in paragraphs I and II of count I of the indictment. Appellant’s brief presents argument
and cites authorities only to that conviction. See Tex. R. App. P. 38.1(h).
Background
Section 71.02 of the Texas Penal Code (engaging in organized criminal activity)
provides in pertinent part:
(a) A person commits an offense if, with intent to establish, maintain, or participate
in a combination or in the profits of a combination or as a member of a criminal
street gang, he commits or conspires to commit one or more of the following
(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft,
aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual
assault, sexual assault, forgery, deadly conduct, assault punishable as a Class
2
A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor
vehicle. . . .
Tex. Penal Code Ann. § 71.02(a)(1) (West Supp. 2001) (emphasis added).4
Under section 71.02(a), a defendant may, inter alia, commit the offense of engaging
in organized criminal activity with the intent to establish, maintain, or participate in a “combination”
or a “criminal street gang”5 by committing or conspiring to commit a predicate offense named in the
statute. The terms “combination” and “criminal street gang” are defined by statute. See id.
§ 71.01(a), (d). All of this will become important to our discussion of the instant case.
Count I, paragraph I of the indictment alleged that Jose Guadalupe Posada (appellant),
Eric Lee Trevino, Daniel Adam Granados, John Albert Chavez, Jose Luis Gomez, and Alejandro
Ruiz, with intent to establish, maintain, or participate in a combination, committed the offense of
aggravated assault of Richard Martinez. Paragraph II of count I alleged that the same named
individuals, as members of a criminal street gang, committed the aggravated assault of Martinez.
There were no motions to quash nor any trial objections to any defect, error, or irregularity to the
form or substance of the single indictment. Thus, appellant has forfeited any right to complain of any
4
Other offenses are enumerated in section 71.02(a)(2)-(11). Tex. Penal Code Ann.
§ 71.02(a)(2)-(11) (West Supp. 2001).
5
“Criminal street gang” was added to section 71.02 in 1991. Act of May 27, 1991, 72d
Leg., R.S., ch. 555, § 1, 1991 Tex. Gen. Laws 1968, 1970. Because it overlapped “combination”
and because of problems in prosecution, the term was eliminated in 1993. Act of May 27, 1993, 73d
Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3698-99. Under any circumstances,
“criminal street gang” was reinserted in section 71.02 in 1995. Act of May 29, 1995, 74th Leg., R.S.,
ch. 318, § 24, 1995 Tex. Gen. Laws 2734, 2743-44. See generally Ed Kinkeade & S. Michael
McCullough, Texas Penal Code Annotated, § 71.01, at 524 (1999-2000 ed.).
3
defect, error, or irregularity in the indictment on appeal. See Tex. Code Crim. Proc. Ann. art. 1.14(b)
(West Supp. 2001). Appellant does not raise such issue on appeal.
Appellant and Eric Trevino were tried jointly under the indictment. Ruiz and Gomez
testified as accomplice witnesses after a grant of testimonial immunity.
Facts
The evidence reveals that Ricardo (Ricky) Martinez, the victim of the aggravated
assault, was shot by mistake in the belief that he was one Santos Hernandez.
Michael Ojeda, age eighteen, testified that on June 16, 1998, he, his sister, Marie Lara,
and Ricky Martinez attended Del Valle High School’s summer school program. They left school that
day about 12:45 p.m. in Ojeda’s maroon Volkswagon Jetta. Ojeda was driving, his sister sat in the
passenger seat, and Martinez was in the rear seat. As they drove by the nearby Circle K convenience
store, Ojeda noticed a white sedan and gray truck in the store’s parking lot. The white sedan tried
to pull out in front of Ojeda, but Ojeda passed it and turned north on FM 973. The pickup truck
passed the white sedan and then tried to pass Ojeda’s Jetta. Ojeda was driving at speeds of 80-85
miles per hour to avoid being cut off. The truck pulled within five feet of Ojeda traveling in the
southbound lane. Ojeda then heard a gunshot. His sister jumped into the back seat with Martinez.
Ojeda slammed on the Jetta’s brakes and the truck and sedan passed by. Before reaching the
intersection of FM 973 and FM 969, the truck made a U-turn and drove south on FM 973. At the
intersection, Ojeda drove to a construction site where a sheriff’s car was parked. Martinez was
bleeding and there was a bullet hole in the Jetta. Deputy Sheriff Kent Miller sent Ojeda across the
highway to another deputy to call an ambulance. Miller left to pursue the gray truck, a description
4
of which he received from Ojeda along with the fact that two Hispanic males were in it. Miller
stopped the truck six or seven minutes later on Highway 71. Appellant and co-defendant Eric
Trevino were in the Isuzu truck belonging to appellant. Ojeda was taken to the scene of the stop and
identified the vehicle as the truck involved in the shooting.
Ojeda’s sister corroborated his testimony, as did Martinez. After being shot, Martinez
thought he was going to die. The gunshot wound was painful. At the emergency room, Dr. Clive
Smith determined that the bullet had entered Martinez’s back under the arm and lodged in his lower
right chest area. Dr. Smith determined that it would be too dangerous to attempt to remove the
bullet, that Martinez might have lived without medical assistance, and that Martinez was lucky to be
alive. Dr. David Leake, a radiologist, treated Martinez on June 19, 1998, and observed a large bullet
fragment in Martinez’s lower right chest.
After their arrest, appellant and his co-defendant Trevino were taken to the police
station where Officer Toby Cross conducted atomic absorption tests on the hands of both individuals
to determine if either one had recently fired a gun. Texas Department of Public Safety crime lab
expert Ivan Wilson analyzed the results of the tests and testified that the palms and back sides of
appellant’s hands were positive for gunshot residue,6 which meant that appellant had recently fired
a gun, handled a gun which had been fired recently, or was in the immediate area when a gun was
fired.
Lee Gonzales and his sister, Melissa Gonzales, testified that on the night before the
shooting appellant came to their house, displayed a gray semi-automatic pistol and was hoping to use
6
Trevino’s right palm was also positive for gunshot residue.
5
it. Appellant told Lee that appellant’s gang was trying to “get some guy, this Duke or whatever, for
stabbing their homeboy or something in the park.”
After the shooting, on the night of June 16, 1998, appellant telephoned Melissa, whom
he was trying to date. Lee listened to the conversation on another telephone and told his sister to
make notes. Appellant stated that another member of the Midtown Kriminals gang was in the truck
with him when he shot someone. He had thrown the pistol he used into some bushes along the
roadway. Melissa corroborated Lee’s version of the conversation with appellant, but also pointed
out that appellant said the shooting occurred about 1:00 p.m. on June 16, 1998; that all the people
participating were members of the Midtown Kriminals gang; that before the shooting the gang was
following someone whom they thought was Santos Hernandez; and that appellant shot at him. Lee
was a friend of Ricky Martinez who had been shot. Martinez was informed and in turn told the
police. A few days later, after the grass had been cut along the highway, a nine millimeter Ruger
pistol was found along the route appellant had traveled after the shooting. When the pistol was
shown to Lee Gonzales, he stated that it appeared to be the one appellant had displayed to him before
the shooting. The Ruger pistol was test-fired and it was determined by a firearm expert that the nine
millimeter spent casing found in appellant’s truck had been fired by the Ruger pistol in question. It
was established that this pistol was a deadly weapon.
Two written statements given by appellant to law enforcement officers were
introduced after being redacted in part. In the first statement dated June 18, 1998, appellant stated
that on June 15, 1998, he was instructed by John Chavez to “hook up . . . the next day,” which they
did at the Del Valle Circle K store around 12:30 p.m. As they left the store in pursuit of a maroon
6
car, appellant stated that Daniel Granados (“Domino”) and Javier Ruiz (“Chucky”) jumped into the
bed of his truck; that as they drove onto FM 973, he was behind the white Nissan Stanza sedan driven
by Alejandro Ruiz with John Chavez in the passenger seat; that the others were in a white Grand Am
automobile behind him; that on FM 973, the Nissan began “acting up” and he jumped into the lead
following “this red car.” Thereafter, appellant heard a gunshot from the bed of his truck, saw a bullet
hole in the red car whose passengers were leaning down. Appellant made a U-turn on FM 973 after
which Javier Ruiz and Daniel Granados jumped out of his truck and got into the Nissan. Appellant
saw Granados with a black bag when he left the truck, and appellant concluded that Granados was
the shooter. In the second statement dated August 18, 1998, appellant admitted he had not told the
truth in prior statements to the police and wanted to relate how he was involved. Appellant admitted
that in 1994, he “started hanging around” with members of the Midtown Kriminals street gang
(MTK); that he was jumped on and beaten by another gang who thought that he “was MTK”; that
he was formally initiated in MTK in 1994 by having to fight Jose Luis Gomez; that subsequently he
and other members of MTK came upon those who had “jumped” him earlier; that he wanted revenge
“and Luis Gomez and MTK was ready to help”; and that a shooting followed. The shooting was
identified as the Payless Store shooting. Appellant acknowledged that “Luis and I both caught cases
involving drive by shooting.” This is followed by a redacted portion of appellant’s second statement
followed in turn by “that night when I got home . . . my family had thrown a barbeque for me getting
out, some of the MTK guys were at the party.”
Appellant acknowledged that in May 1998 he started hanging out with MTK “real
hard”; that at the end of May or the beginning of June 1998 a leadership meeting of MTK was held
7
at John Zuniga’s house. John Chavez was the leader and “in charge of the entire click,” and appellant
stated that he (appellant) was established as leader of the Northeast area. At this meeting, appellant
learned that Zuniga and Alejandro Ruiz, members of MTK, had been cut in a fight with another gang
at Club Chaos.
Appellant stated that at 9:00 a.m. on June 16, 1998, he reported to his parole officer
and later got a call from Chavez. Appellant met with the others alleged in the indictment, and they
drove in various vehicles to the Del Valle Circle K store. As a maroon Volkswagen pulled out of the
school property, appellant reported that Chavez displayed his MTK tattoos to the “dudes” in the
maroon car.
Appellant’s version about what happened next was similar to his earlier statement
except that he did not place Granados or Javier Ruiz in his truck. Appellant, this time, explained that
he was “messing” with his truck radio when he heard a gunshot and that was why the gun powder
got on both his hands. The redacted statement did not reveal who was inside the truck with appellant
at the time.7
Detective Albert Bertrand of the Austin Police Department’s gang unit testified how
information on gangs was gathered. He testified about the Austin gang culture in general, stating that
the gangs were often affiliated with national gangs such as the Crips, Bloods, Peoples’s Nation, and
Folks Nation. He identified the Midtown Kriminal street gang (MTK) as originating in the
Montopolis area of Austin and operating in Travis County. Detective Bertrand drew the gang’s
graffiti symbol for the jury and stated that the gang’s color was green. A baseball bat with “MTK”
7
Eric Trevino’s name was redacted from the statement. He was the co-defendant on trial
with appellant.
8
and “XII” written on it was introduced into evidence. Bertrand related that the “Dukes” were
another predominately Hispanic gang based in North Austin. He was familiar with an Austin bar
called Club Chaos, which was frequented by gang members.
Alejandro Ruiz, an indicted co-defendant, testified at the June 1999 trial that he had
been a member of the Midtown Kriminal street gang for three years; that John Chavez was the leader
of the gang; that he had known appellant Posada for a year and considered him a gang member and
that appellant considered himself a member of the gang; that in addition to Chavez and appellant, Eric
Trevino, Guillermo Navarro, Jose Luis Gomez, Antonio Gomez, Javier Ruiz (the witness’s brother),
and John Zuniga were all members of the gang; that there were thirty members of the MTK; and that
its colors were green and beige. When shown a baseball bat (State’s exhibit no. 2), Ruiz recognized
the “MTK” graffiti and the Roman “XII.” He explained that “XII” was for 12th Street, which the
gang claimed as their turf and would fight any gang who invaded their turf. Ruiz acknowledged that
he and Navarro were involved in a fist fight with the Kriminal of Art (KOA) gang at Del Valle High
School. Later, Ruiz stated that he, John Chavez, and John Zuniga got into a fight with the Dukes
gang in the parking lot of Club Chaos in Austin. He explained that the Dukes were affiliated with
Folks Nation and that MTK was affiliated with the People’s Nation. Ruiz stated that the fight started
when the Dukes began to throw “gang signs.” Ruiz was stabbed in the arm, and Zuniga was stabbed
“all over his body.”
Four or five months later, Ruiz learned from Navarro that Santos Hernandez of the
Dukes was the person who had stabbed Ruiz. Ruiz reported this information to Chavez who was
9
ready “to get him.” Ruiz was still in school and wanted to wait. When Ruiz was expelled, Chavez
said, “Let’s go get [Santos Hernandez].”
Upon instructions from Chavez, Ruiz drove his white 1990 Nissan Stanza to the Circle
K store across from the high school. His brother, Javier, was with him and they arrived about 11:35
a.m. on June 16, 1998. Chavez, the Gomez brothers, Zuniga, and Granados then arrived at the store
in Jose Luis Gomez’s white Pontiac Grand Am. Minutes later, appellant and Trevino arrived in
appellant’s pickup truck. Ruiz believed Santos Hernandez would be in a maroon car since Ruiz had
seen him in one in the past.
Ruiz confirmed that all present had a plan concerning the maroon car. The truck,
followed by the other two cars, would “box in” the maroon car, causing it to stop. Then Ruiz was
to have a fist fight with Hernandez, whom he wanted to hurt, even to the point of permanently
disabling Hernandez. The other gang members would be his “back-up” in case Hernandez tried to
use a weapon. Ruiz did not see any gun during the preparations at the Circle K store.
Ruiz stated that he did not see the shooting as his car could not keep up with the
truck. He saw appellant’s truck make a U-turn at the intersection of FM 973 and FM 969. Ruiz
turned onto FM 969 when he saw the sheriff’s cars. The Grand Am followed suit and both cars
stopped at a store on FM 969.
Jose Luis Gomez, another co-indictee, testified that he was a former member of the
Midtown Kriminals and had known appellant and Trevino since childhood. Gomez related that on
August 21, 1995, he shot at several people at the Payless Store on Manor Road in Austin. Appellant
drove the car while Gomez was shooting. Gomez tried to stress that although his dispute was with
10
a person in another gang, the fight was personal and not gang related. Gomez said that he quit the
MTK after his release from the Texas Youth Commission in 1997. However, he was present at the
Circle K store on June 16, 1998 and corroborated the version of events given by Ruiz about what
happened at the Circle K store and the plan for Ruiz to get into a fist fight with “somebody.” While
Gomez was in his car following Ruiz’s vehicle, he denied chasing the maroon Jetta.
Appellant rested his case without calling any witnesses. Thus, all the testimony at the
guilt-innocence stage of the trial came from the State’s witnesses. We turn now to the legal and
factual sufficiency of evidence raised by appellant.
The Standard of Review—Legal Sufficiency
The standard for reviewing the legal sufficiency of evidence is whether, viewing the
evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found
beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443
U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.—Austin 1994, pet. ref’d).
The standard of review is the same in both direct and circumstantial evidence cases. King v. State,
895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim.
App. 1992). The State may prove its case by circumstantial evidence if it proves all of the elements
of the charged offense beyond a reasonable doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex.
App.—San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence
is determined from the cumulative effect of all the evidence; each fact in isolation need not establish
the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). It is
important to remember that all the evidence the jury was permitted, properly or improperly, to
11
consider must be taken into account in determining the legal sufficiency of the evidence. Garcia v.
State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.
Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.).
The jury is the exclusive judge of the facts proved, the weight to be given the
testimony, and the credibility of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (West
1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995); Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of the
evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
The jury maintains the power to draw reasonable inferences from basic facts to ultimate facts. Welch
v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio 1999, no pet.); Hernandez v. State, 939
S.W.2d 692, 693 (Tex. App.—Fort Worth 1997, pet. ref’d). Moreover, the reconciliation of
evidentiary conflicts is solely within the province of the jury. Heiselbetz v. State, 906 S.W.2d 500,
504 (Tex. Crim. App. 1995).
Under the Jackson standard, the reviewing court is not to position itself as a thirteenth
juror in assessing the evidence. Rather, it is to position itself as a final due-process safeguard insuring
only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
It is not the reviewing court’s duty to disregard, realign, or weigh the evidence. Id. The jury’s
verdict must stand unless it is found to be irrational or unsupported by more than a “mere modicum”
of evidence, with such evidence being viewed in the light of Jackson. Id. The legal sufficiency of the
evidence is a question of law. McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996,
pet. ref’d).
12
The Standard of Review—Factual Sufficiency
A review of the factual sufficiency of the evidence begins with the presumption that
the evidence supporting the judgment was legally sufficient. See Clewis v. State, 922 S.W.2d 126,
134 (Tex. Crim. App. 1996). In such a review, we consider the evidence without employing the
prism of “in the light most favorable to the verdict.” Id. at 129. A reviewing court must consider all
the evidence impartially, comparing evidence that tends to prove the existence of a disputed fact or
facts with evidence that tends to disprove that fact or those facts. Santellan v. State, 939 S.W.2d
155, 164 (Tex. Crim. App. 1997). The verdict or judgment is to be set aside only when the factual
finding is against the great weight and preponderance of the evidence so as to be clearly wrong and
unjust. Clewis, 922 S.W.2d at 129. In the factual sufficiency analysis, it must be remembered that
the trier of fact is the sole judge of the weight and credibility of the testimony. Santellan, 939 S.W.2d
at 164. Appellate courts should be on guard not to substitute their own judgment in these matters
for that of the trier of fact. Id. One principle of the factual sufficiency analysis is deference to the
findings of the jury or other fact finder. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
Moreover, “[a] decision is not manifestly unjust merely because the jury [or fact finder] resolved
conflicting views of the evidence in favor of the State.” Id. at 410.
In the latest clarification of the standard of review involved, the Court of Criminal
Appeals made clear that the Clewis criminal factual sufficiency review encompasses both formulations
utilized in civil jurisprudence. Thus, in conducting a Clewis sufficiency review of the elements of a
criminal conviction, an appellate court must ask whether a neutral review of all the evidence, both
for or against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine
13
the confidence in the jury’s determination, or that the proof of guilt, although adequate taken alone,
is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
Here, appellant’s arguments on legal and factual sufficiency are commingled. Johnson
is not cited and appellant does not inform us of which formulation he contends was not satisfied. We,
however, will now consider the sufficiency issues raised in the first four points of error.
Discussion
“Combination” as defined by statute
means three or more persons who collaborate in carrying on criminal activities,
although (1) the participants may not know each other’s identity; (2) membership in
the combination may change from time to time; and (3) participants may stand in a
wholesaler-retailer or other arm’s length relationship in illicit distribution operations.
Tex. Penal Code Ann. § 71.01(a) (West Supp. 2001). This definition of “combination” has been
interpreted by the Court of Criminal Appeals as obligating the State to prove in a prosecution under
section 71.02(a) of the Penal Code not only that the defendant intended to establish, maintain, or
participated in a group of three or more, but also that the members of the group intended to work
together in a continuing course of criminal activity. Dowdle v. State, 11 S.W.3d 233, 235-36 (Tex.
Crim. App. 2000); Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999); Munoz, 29 S.W.3d
205, 208 (Tex. App.—Amarillo 2000, no pet.). Given the statutory definition and the court’s
interpretation, section 71.02(a) requires proof of two different mens rea—that of the accused and that
of the group—a dual intent requirement. Munoz, 29 S.W.3d at 208.
14
Moreover, the continuing course of criminal activity referred to must encompass more
than just one crime or offense. Nguyen, 1 S.W.3d at 697, or one criminal episode. Ross v. State ,
9 S.W.2d 878, 882 (Tex. App. Austin 2000, pet. ref’d). It is not enough for the State to show that
the group came together to commit one offense. Ross, 9 S.W.3d at 882; see also Minor v. State, 9
S.W.3d 835 (Tex. Crim. App. 2000). The facts in Nguyen were held insufficient to show a continuing
course of criminal activity because the group involved simply desired to avenge an insult. Nguyen,
1 S.W.3d at 696-97. Once the insult was avenged, the reason for and the existence of the group
dissipated. Id.
Likewise in Ross, the young men forming the group were overcome with road rage
and sought to retaliate against a woman who purportedly cut them off while driving. 9 S.W.3d at
880. The group committed several criminal offenses in pursuing its goal of retaliation but the
evidence did not indicate that once it achieved its goal the group intended to continue its illegal
conduct. This Court in Ross held that the evidence at most simply depicted that the members of the
group temporarily organized to commit one criminal episode, which did not meet the requirements
of section 71.02(a). Id. at 882.
The fact that the life ofa group may be brief does not immunize one from prosecutions
long as the evidence reveals the requisite mens rea. In Mast v. State, 8 S.W.3d 366 (Tex. App.—El
Paso 1999, no pet.), the facts demonstrated the group existed to sell tools that had been stolen.
While nothing in the opinion suggests that the group intended to pursue its operations once the tools
were sold, the reviewing court found that the requisite intent existed to pursue a course of criminal
15
activity. This was so because the evidence showed at least two other criminal transactions during the
group’s brief life. Id. at 370.
Mens rea is a rather difficult element to prove via direct evidence. In a contested case,
an accused does not often facilitate his own conviction by admitting to having the state of mind
necessary to support the conviction. Thus, circumstantial evidence may be used to prove it. Carlson
v. State, 940 S.W.2d 776, 779 (Tex. App.—Austin 1997, pet. ref’d); see also Munoz, 29 S.W.3d at
209; Morales v. State, 828 S.W.2d 261, 263 (Tex. App.—Amarillo 1992), aff’d, 853 S.W.2d 583
(Tex. Crim. App. 1993). Intent and knowledge can be inferred from the conduct of, remarks by, and
circumstances surrounding the acts engaged in by the accused. Parramore v. State, 853 S.W.2d 741,
745 (Tex. App.—Corpus Christi 1993, pet. ref’d); see also Dues v. State, 634 S.W.2d 304, 305 (Tex.
Crim. App. 1982); Skillern , 890 S.W.2d at 880. Circumstantial evidence may also be used to prove
the existence of an agreement to collaborate in continuing criminal activity. Munoz, 29 S.W.3d at
209; Mast, 8 S.W.3d at 369. “Evidence of the acts and conduct of the conspirators, as well as
circumstances surrounding these acts and conduct can be used to show the existence of a positive
agreement.” Kennard v. State, 649 S.W.2d 752, 763 (Tex. App.—Fort Worth 1983, pet. ref’d).
The underlying offense at bar involves the aggravated assault of Ricky Martinez. Thus,
under count I, paragraph I of the indictment, the State was obligated to prove beyond a reasonable
doubt that on or about June 16, 1998, (1) appellant intended to participate in a group of three or
more, (2) the group intended to work together in ongoing criminal activities, and (3) appellant acting
with the combination, committed the alleged aggravated assault.
16
Under count I, paragraph II of the indictment, the State was obligated to prove beyond
a reasonable doubt that on or about June 16, 1998, appellant (1) intended to establish, maintain, or
participate in a criminal street gang, (2) which has a common identifying sign or symbol or an
identifiable leadership, (3) whose members continuously or regularly associate in the commission of
criminal activities, and (4) appellant, acting with a criminal street gang, committed one of the
predicate offenses under section 71.02(d)—here aggravated assault.8
It must be kept in mind that the terms “combination” and “criminal street gang” as
defined in section 71.01 of the Penal Code9 often overlap when both terms are used in alleging the
offense of engaging in organized criminal activity as in the case sub judice. In submitting count I of
the indictment to the jury, the trial court used the terms disjunctively. Thus, both means or ways of
committing the offense charged in count I must be considered in any discussion of the sufficiency of
the evidence.
Regarding both methods of committing the offense of engaging in organized criminal
activity, we observe that appellant concedes that the State’s proof of the commission of the predicate
offense of aggravated assault is legally and factually sufficient. The evidence clearly supports this
concession. A reiteration of the facts is not needed. Other evidence showed that the MTK gang was
well known to the police, that it had a common symbol, its color was green, and that its identified
8
“‘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. Penal Code Ann. § 71.01(d) (West Supp. 2001). The definition is
unchanged from Act of May 10, 1997, 75th Leg., R.S., ch. 189, § 9, 1997 Tex. Gen. Laws. 1045,
1048 (Tex. Penal Code § 71.01, since amended), under which appellant was prosecuted.
9
See Tex. Penal Code Ann. § 71.01(a), (d) (West Supp. 2001).
17
leader was John Chavez. In 1994, appellant began associating with the MTK gang and was initiated
into the gang the same year. He was involved in the Payless Store shooting with the MTK gang,
“caught” a drive-by shooting charge in 1995, and later got “out” and was reporting to his parole
officer. In May 1998, appellant started “hanging out” with the gang “real hard.” In May or early
June 1998, appellant was assigned a leadership role in the gang, and he learned of his gang’s fight
with the Dukes at Club Chaos in which Zuniga and Alejandro Ruiz had been stabbed. Other evidence
showed earlier fights with other gangs at Del Valle High School and on Patton Lane. The facts reveal
that appellant knew of the criminal activities of the combination, criminal street gang, or group. See
McDonald v. State, 692 S.W.2d 167, 172 (Tex. App.—Houston [1st Dist.] 1985 pet. ref’d); Lucario
v. State, 677 S.W.2d 693, 698-99 (Tex. App.—Houston [1st Dist.] 1984, no pet.). Appellant’s acts,
works, and surrounding circumstances as reflected by the record clearly showed appellant’s intent
to willingly participate in the activities of a combination or gang of three or more persons and to
agree and engage in the commission of aggravated assault. The direct and circumstantial evidence
also established the intent of the combination to work together in a continuing course of criminal
activity and the intent of the criminal street gang who regularly associated in the commission of
criminal activities. There was “something more” than the commission of the aggravated assault
offense by a group of three or more individuals. See Nguyen, 1 S.W.3d at 697. The record reflects
that the gang “regularly” associated in criminal activities as described, continued to claim their turf
on 12th Street, and called a meeting to determine if anyone was “snitching” about the gang’s
commission of the aggravated assault. Chavez, the leader, also instructed Alejandro Ruiz to paint
his car to obstruct the police in their investigation of that offense. The evidence shows the
18
“continuity” of the combination as discussed in Nguyen. See id. There is no requirement that a
combination commit a series of criminal acts to support a conviction. Id. Acts engaged in by the
combination to support the “something more” requirement need not be criminal offenses in and of
themselves. Id.
Moreover, in submitting the case to the jury, under count I, paragraphs I and II, the
trial court authorized appellant’s conviction for engaging in organized criminal activity if the predicate
offense (aggravated assault) was committed while appellant was establishing, maintaining, or
participating in either a combination or a criminal street gang. The jury returned a general verdict:
“We, the jury, find the defendant Jose Guadalupe Posada guilty of the offense of Organized Criminal
Activity, as alleged in count one of the indictment.” Where different theories of the offense are
submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports one of
the theories. Brooks v. State, 990 S.W.2d 278, 283 (Tex. Crim. App. 1999); Fuller v. State, 827
S.W.2d 919, 931 (Tex. Crim. App. 1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim.
App. 1991).
While the general verdict here is sufficient under the foregoing authorities, we find
both theories supported by the evidence. Contrary to appellant’s contentions, we conclude that the
evidence is both legally and factually sufficient to establish the existence of a combination and of a
criminal street gang. We reject appellant’s argument that the gang did not “regularly” associate in
the commission of criminal activities.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that
any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the
19
offense charged in count I of the indictment. See Jackson, 443 U.S. at 319; Skillern, 890 S.W.2d at
879. The evidence was legally sufficient to support the conviction. Applying the standard of review
for factual sufficiency, including a neutral review of all the evidence, we conclude that the proof of
guilt is not so obviously weak as to undermine the confidence in the jury’s verdict or that the proof
of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23
S.W.3d at 11; Clewis, 922 S.W.2d at 129. Points of error one through four are overruled.
Another Sufficiency Issue
In his fifth and sixth points of error, appellant separately contends that the evidence
is legally and factually insufficient to prove the membership of a combination as required by the
“authorization” paragraph of the charge submitted under count I of the indictment. Appellant argues
that the State did not object to the court’s jury charge and thus was bound to prove the combination
was composed of appellant and the five others named in the application paragraph of the charge
rather than “three or more” as included in the statutory definition of a combination set forth in the
abstract portion of the court’s charge. Appellant argues that the State failed to prove that Daniel
Granados was a member of the combination as required by the application paragraph of the charge.
Appellant relies upon Fee v. State, 841 S.W.2d 392, 395-96 (Tex. Crim. App. 1992)
and Ortega v. State, 668 S.W.2d 701, 707 (Tex. Crim. App. 1983). Appellant overlooks that Fee
and Ortega were a part of the Benson-Boozer10 line of cases which was overruled by Malik v. State,
953 S.W.2d 234, 239-49 (Tex. Crim. App. 1997). Malik points out “that the sufficiency of the
10
See Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982); Boozer v. State, 717
S.W.2d 608 (Tex. Crim. App. 1984).
20
evidence should be measured by the elements of the offense as defined by a hypothetically correct jury
charge for the case.” Id. at 240. “Such a charge would be 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 was tried.” Id.
Moreover, appellant does not successfully distinguish the case at bar from Crum v.
State, 946 S.W.2d 349 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d), and Jones v. State, 907
S.W.2d 850 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). In Jones, decided while the Benson-
Boozer line of cases was still viable, the court distinguished Fee. The State was not required to prove
the participation of all those persons listed in the jury charge in a combination with appellant, in light
of the statutory definition of “combination” given in the abstract portion of the charge and the
qualification of that term in the application paragraph. Jones, 907 S.W.2d at 854. In Crum, also
decided before Malik, the jury charge contained the statutory definition of a “combination,” but it was
not repeated in the application paragraph. Noting that it was confronted with the same issue as in
Jones, the Crum court held that the failure of the jury charge to repeat the definition of “combination”
in the application paragraph neither affected the meaning of the charge nor increased the State’s
burden of proof. Fee and Ortega were distinguished. Crum, 946 S.W.2d at 356. Appellant’s claim
that Jones and Crum are distinguishable from the instant case does not mention Malik, but contends
that the listing of the names of all participants in a co-dependant clause in the application paragraph
renders Jones and Crum inapplicable. We do not agree. It is unnecessary to repeat every abstract
21
definition in the application paragraph of the jury charge. See Dinkins v. State, 894 S.W.2d 330, 339-
40 (Tex. Crim. App. 1995).
Moreover, and most importantly, the evidence shows that appellant, Granados, and
the others alleged in the first paragraph of the first count of the indictment and named in the
application paragraph of the charge were members of a combination. Appellant’s argument to the
contrary is based on the fact that some of the evidence reflects Granados was not a member of the
MTK criminal street gang. Appellant relies upon the testimony of the accomplice witness Ruiz, but
Ruiz acknowledged that Granados was allowed to participate in the gang’s activities because he was
“a friend” and “hung out” with the gang on several occasions prior to June 16, 1998, the date of the
aggravated assault. Appellant told Melissa Gonzales that all those who participated in the shooting
were MTK members and this included Granados. Other evidence reflects Granados’s association
with the gang.
Reconciliation of evidentiary conflicts is solely the function of the jury. Miranda v.
State, 813 S.W.2d 724, 733-34 (Tex. App.—San Antonio 1991, pet. ref’d). The jury was not
required to accept Ruiz’s testimony. Even if the jury could have found that Granados was not a
member of the gang, this would not have prevented the jury from finding under the evidence that
Granados was one of the six named individuals involved in the combination, nor would it have
undermined appellant’s conviction for engaging in organized criminal activity as a member of a
criminal street gang of three or more.
Utilizing the standards of review for legal and factual sufficiency claims, we overrule
the fifth and sixth points of error. Here again, we note that where different theories of the offense
22
are submitted in the disjunctive to the jury, a general verdict is sufficient if the evidence supports one
of the theories. Brooks, 990 S.W.2d at 283.
Aggravated Assault
Appellant has presented no point of error concerning the aggravated assault
conviction. See Tex. R. App. P. 38.1. In his appellate brief, appellant concedes that the State’s proof
of the aggravated assault “was legally and factually sufficient.” When an appellant presents no
argument or cites any authorities to support his position, nothing is presented for review. Id.; Tong
v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000); Dunn v. State, 951 S.W.2d 478, 480 (Tex.
Crim. App. 1997).
Conviction Under Fourth Count
Appellant refers to his conviction under the fourth count of the indictment as
“conspiracy to commit aggravated assault with a deadly weapon as a member of a combination and
as a member of a criminal street gang in violation of Tex. Penal Code §§ 15.02 and 71.02.” An
examination of the fourth count, however, reveals that it is a duplicate of the first count and both its
paragraphs, except that it alleges that the offense of organized criminal activity was committed by
appellant and others who did “conspire and agreed” to commit the predicate offense of aggravated
assault rather than alleging “did commit” the same predicate offense as in the first count. The fourth
count merely alleged a different means of committing the offense of which appellant was convicted
in the first count. See McIntosh v. State, No. 755-00 (Tex. Crim App. June 27, 2001) at slip op. 3-4.
The trial court submitted the fourth count to the jury in accordance with its allegations.
23
Appellant has not briefed any contentions concerning this latter conviction. See Tex.
R. App. P. 38.1(h). Nothing is presented for review. Dunn, 951 S.W.2d at 480; Lockett v. State, 16
S.W.3d 504, 505 n.2 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Price v. State, 15 S.W.3d
577, 578-79 (Tex. App.—Waco 2000, pet. ref’d).11
The judgment is affirmed.
John F. Onion, Jr., Justice
Before Chief Justice Aboussie, Justices Yeakel and Onion*
Affirmed
Filed: August 30, 2001
Do Not Publish
11
A multiple punishments double jeopardy claim is forfeited if not preserved at trial before
the court’s charge is submitted to the jury. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim.
App. 2000). Appellant made no trial objection nor does he raise the issue for the first time on appeal
and seek to meet the revival test. Id. at 643.
24
*
Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).
25