Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00716-CR
Francisco Javier AZUARA Jr.,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2014-CRM-000389-D2
Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: August 5, 2015
AFFIRMED
Francisco Javier Azuara Jr. was convicted by a jury of aggravated assault with a deadly
weapon causing bodily injury. On appeal, Azuara contends (1) the evidence is insufficient to
support his conviction, (2) the jury charge was defective, and (3) the trial court abused its discretion
in admitting hearsay testimony. We affirm the trial court’s judgment.
BACKGROUND
Just before closing time, a fight broke out inside a nightclub, and the bouncers escorted
those involved from the nightclub. Azuara and his two co-defendants, Alfonso Carlos Tamez and
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Jessica Ortega, arrived at the nightclub together a few minutes before the fight began, and several
witnesses testified that Tamez was involved in the fight. The video surveillance recording shows
Tamez, Azuara, and Ortega leave the nightclub together when the bouncers broke up the fight.
Around the same time, another fight broke out in the parking lot of the nightclub involving several
of the same participants. This fight was close to an exit from the nightclub’s parking lot to a street.
A few minutes later, gunshots were fired from the street.
Several witnesses reported the gunshots were fired by the front-seat passenger in a white
Hummer. A few witnesses identified Tamez as the shooter. Other witnesses reported seeing a
dark-colored SUV and the white Hummer, and one witness testified that the shooter was a man
who exited the dark-colored SUV. It is undisputed that Tamez owned a white Hummer.
Tamez and Azuara were each indicted for aggravated assault with a deadly weapon as both
a principal and as a party. 1 The indictment contained seven counts with a separate count for each
of the seven victims who was shot. The jury found both men guilty.
SUFFICIENCY
In his first issue, Azuara contends the evidence is insufficient to support his conviction as
either a principal or a party.
A. Standard of Review
In reviewing the sufficiency of the evidence, “we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854,
860 (Tex. Crim. App. 2011). “This standard recognizes the trier of fact’s role as the sole judge of
the weight and credibility of the evidence . . . .” Id. The reviewing court must also give deference
1
Ortega also was indicted but was acquitted by the jury.
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to the jury’s ability “‘to draw reasonable inferences from basic facts to ultimate facts.’” Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “Each fact need not point directly and independently to the guilt of the appellant, as long
as the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1985)).
We measure evidentiary sufficiency with reference to the elements of the offense as defined
by the hypothetically correct jury charge for the case. Adames, 353 S.W.3d at 860–61. “[A]
hypothetically correct jury charge is 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.’” Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) (quoting
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The law “‘as authorized by the
indictment’” consists of “‘the statutory elements of the offense . . . as modified by the charging
instrument.’” Id. (alteration in original) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.
App. 2000)).
B. Elements of the Offense
The offense of aggravated assault with a deadly weapon causing bodily injury is committed
if a person (1) “intentionally, knowingly, or recklessly causes bodily injury to another” and (2)
“uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN. §§ 22.01(a) (West 2011), 22.02(a)(2)
(West Supp. 2014); accord Ex Parte Denton, 399 S.W.3d 540, 546–47 (Tex. Crim. App. 2013);
see also Graves v. State, 452 S.W.3d 907, 916 (Tex. App.—Texarkana 2014, pet. ref’d); Zapata
v. State, 449 S.W.3d 220, 224–25 (Tex. App.—San Antonio 2014, no pet.). The indictment
authorized Azuara’s conviction if he acted alone or as a party. Generally, a person is criminally
responsible as a party if the person, acting with intent to promote or assist the commission of the
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offense, solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). The abstract portion of the charge
in the instant case incorporated this definition of a party. The application paragraphs of the jury
charge, however, narrowed the specific mode of party liability to “aiding.” See Vasquez v. State,
389 S.W.3d 361, 368 (Tex. Crim. App. 2012) (holding, upon request, defendant is entitled to
narrowing of specific modes of conduct that constitute party liability to those supported by the
evidence). Because the jury charge narrowed the specific mode of conduct to aiding, Azuara could
be convicted as a party only if the evidence supported a finding that he aided another in committing
the offense.
C. Analysis
As previously noted, the evidence is undisputed that Tamez owned a white Hummer. In
addition, in Azuara’s own statement to the investigating officers, he admitted he arrived at the
nightclub in a white Hummer with Tamez and Ortega. In addition to Azuara’s admission, the
surveillance recording shows the three entering and exiting the nightclub together. Furthermore,
in their statements to the investigating officers, both Tamez and Azuara stated Azuara drove the
Hummer to the nightclub, and both initially testified that Azuara was driving when they left the
nightclub. Although Azuara subsequently stated Tamez was driving, the jury was the sole judge
of the weight to be given this change in Azuara’s statement. See Adames, 353 S.W.3d at 860.
Finally, Tamez, Azuara, and Ortega later returned to the nightclub in the white Hummer after
receiving a phone call from the wife of one of the victims accusing Tamez of being involved in
the shooting. When they returned to speak with the detectives, Azuara was again driving.
Alejandro Carreon testified the shots were fired from the street. Officer Aldo Alaniz
testified Maria Santos told him an individual who had been involved in the fight inside the
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nightclub fired the shots from a white SUV. 2 Both Carreon and Leonel Perez testified Tamez was
involved in the fight inside the nightclub. Perez heard the gunshots fired from the street and saw
a hand wrapped in a white shirt shooting from the front passenger window of a white Hummer. 3
Jose Arturo Garcia also testified he saw a white Hummer drive away after the shooting. Finally,
Jonathan Santos, one of the victims, gave a statement in which he stated Tamez shot him and then
left in a white Hummer. At trial, Jonathan Santos only testified that the “girl at the door,” who
was Maria Santos, told him Tamez was the one shooting, not that he saw Tamez shooting. The
jury, however, is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Adames, 353 S.W.3d at 860. Jonathan Santos also testified he received threats from
Tamez’s girlfriend.
Although there was conflicting evidence about the involvement of a dark-colored SUV and
the passenger of that vehicle exiting and shooting, the jury could have chosen to disbelieve this
testimony. Moreover, although the test results for gunshot residue on Tamez, Azuara, and the
white Hummer were negative, the jury was required to weigh the time that elapsed between the
shooting and their return to the scene of the crime. The jury also was required to weigh the
evidence that the shooter’s hand was wrapped in a white shirt, the evidence that Tamez is shown
in the surveillance video as removing his white shirt while exiting the nightclub, and the evidence
that Tamez and Azuara showered and changed clothes before returning to the scene.
Based on the foregoing, we conclude the evidence—and the reasonable inferences the jury
could draw from the evidence—is legally sufficient to support a finding that Tamez was the
2
During her testimony, Maria Santos denied making these statements to the officer, but the jury is the sole judge of
the credibility of the witnesses. Adames, 353 S.W.3d at 860.
3
Although defense counsel attempted to impeach Perez based on details omitted from his initial statement, the jury is
the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.
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shooter, and Azuara aided Tamez in his commission of the offense. Accordingly, the evidence is
sufficient to support Azuara’s conviction.
JURY CHARGE
In his second issue, Azuara contends the trial court erred in submitting a jury charge that
failed to (1) name the principal he aided as a party and (2) identify the conduct by which he aided
the principal. The State responds the application paragraph is not required to identify the principal
actor, and it would be improper for the trial court to identify the facts establishing aiding in the
jury charge.
A. Standard of Review
We apply a two-step analysis to an issue asserting jury charge error. Kirsch v. State, 357
S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether error existed in the jury
charge. Id.; Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Second, we determine
whether sufficient harm was caused by the error to require reversal. Kirsch, 357 S.W.3d at 649;
Ngo, 175 S.W.3d at 744.
B. Naming of Principal
Azuara first asserts the trial court erred in failing to name the principal in the application
paragraph of the jury charge. The trial court is not, however, required to identify the parties to a
crime by name in a law of parties charge. See Moore v. State, 983 S.W.2d 15, 21 (Tex. App.—
Houston [14th Dist.] 1998, no pet.); Green v. State, 930 S.W.2d 655, 659 (Tex. App.—Fort Worth
1996, pet. ref’d); Gordon v. State, 714 S.W.2d 76, 77 (Tex. App.—San Antonio 1986, no pet.).
Accordingly, this contention is overruled.
C. Identifying Conduct by which Principal was Aided
Azuara next asserts the jury charge failed to identify the conduct by which the principal
was aided. In support of this assertion, Azuara primarily relies on Vasquez v. State, 389 S.W.3d
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361 (Tex. Crim. App. 2012). In Vasquez, however, the Texas Court of Criminal Appeals held, on
a defendant’s request, the trial court must narrow the statutory modes of conduct that constitute
party liability to those supported by the evidence. Id. at 368. The statutory modes referred to by
the court are the bases upon which a defendant may become a party, i.e., by soliciting, encouraging,
directing, aiding, or attempting to aid the other person. Id.; see also TEX. PENAL CODE ANN.
§ 7.02(a)(2). In this case, the trial court complied with Vasquez because the jury charge narrowed
the statutory mode of conduct in the application paragraph of the charge to aiding.
Azuara appears to be arguing that the trial court was required to identify the specific facts
in the case that would support a finding of aiding and incorporate those facts into the jury charge.
A jury charge is not permitted to comment on the weight of the evidence, sum up the testimony,
or discuss the facts. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Kirsch, 357 S.W.3d at
651. A jury charge identifying the evidence by which a party aided a principal violates each of
these prohibitions because the trial court would be commenting on the weight of the evidence in
support of a finding of aiding, summarizing the testimony, and discussing the facts. See Walters
v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007) (noting a trial court comments on the weight
of the evidence where the charge focuses the jury’s attention on the specific type of evidence that
may support a required finding); Lacaze v. State, 346 S.W.3d 113, 118 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d) (noting a trial court comments on the weight of the evidence if the jury
charge “directs undue attention to particular evidence” (internal quotation marks omitted)).
Accordingly, Azuara’s assertion that the jury charge should have identified the conduct by which
he aided the principal is incorrect. See Kirsch, 357 S.W.3d at 651.
Azuara’s second issue is overruled.
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HEARSAY
In his final issue, Azuara contends the trial court abused its discretion in admitting hearsay
testimony. The State responds the testimony was properly admitted under the excited utterance
exception to the hearsay rule.
A. Standard of Review
We review a trial court’s ruling regarding the admissibility of evidence under an abuse of
discretion standard. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim. App. 2012). Under this
standard, a reviewing court may not reverse the trial court’s ruling unless it falls outside the zone
of reasonable disagreement. Id. We will uphold the trial court’s decision if it is supported by the
record and is correct under any theory of applicable law. Martin v. State, 173 S.W.3d 463, 467
(Tex. Crim. App. 2005).
B. General Hearsay Rule and Excited Utterance Exception
A statement that a declarant does not make while testifying in court which is offered to
prove the truth of the matter asserted in the statement is hearsay and is generally inadmissible. See
TEX. R. EVID. 801(d), 802; Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). An
exception to this general rule exists, however, for excited utterances. See TEX. R. EVID. 803(2);
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Gonzalez v. State, 155 S.W.3d 603,
606 (Tex. App.—San Antonio 2004), aff’d, 195 S.W.3d 114 (Tex. Crim. App. 2006). An excited
utterance is “[a] statement relating to a startling event or condition, made while the declarant was
under the stress of excitement that [the event or condition] caused.” TEX. R. EVID. 803(2); see also
Coble v. State, 330 S.W.3d 253, 294 (Tex. Crim. App. 2010). The critical question in applying
the excited utterance exception is “whether the declarant was still dominated by the emotion caused
by the startling event when she spoke.” Coble, 330 S.W.3d at 294.
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C. Hearsay Testimony
During trial, one of the investigating officers listed the individuals at the scene who
provided information to him. The officer stated the individuals were all employees of the club and
were all frightened or shaken up by the event. The officer then testified as follows:
Q. Now, what about Maria Santos — how did she appear to you at the time?
A. Pretty frightened, shaking, everybody was like scared.
Q. Now, from the time that you arrived and you were able to make contact with
Maria Santos, approximately how much time had elapsed from the time that
you arrived to the time that you spoke to her?
A. Maybe 10 or 15 minutes.
Q. You say it was fairly close to the time of the shooting?
A. Yes.
Q. Now, Officer Alaniz, did she, in her frightened state, did she say anything to
you as to what she might have heard or what she saw?
[Defense counsel]: Objection, hearsay, Your Honor.
THE COURT: Overruled. You can answer.
A. She stated to me that she had seen a white SUV that committed—that fired the
shots.
Q. And did she say anything else to you?
A. (Reviewing report) That the individuals that had shot at the civilians were
involved in a fight inside the bar.
D. Analysis
In this case, Maria Santos watched as multiple victims—many of whom were her fellow
employees—were shot and then collapsed in the parking lot. The officer testifying was the first
officer on the scene and arrived only minutes after the shooting. The officer stated he spoke with
Maria Santos ten or fifteen minutes after his arrival while she was still frightened, shaking, and
scared. Based on this testimony, we conclude the trial court could have found that Maria Santos
“was still dominated by the emotion caused by the [shooting] when she spoke.” Coble, 330 S.W.3d
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at 294. Accordingly, the trial court did not abuse its discretion in admitting the officer’s testimony
under the excited utterance exception to the general hearsay rule.
CONCLUSION
The trial court’s judgment is affirmed.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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