COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-409-CR
ROLANDO VASQUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Rolando Vasquez appeals his convictions for engaging in
organized criminal activity 2 and murder.3 We affirm.
1
… See Tex. R. App. P. 47.4.
2
… Tex. Penal Code Ann. § 71.02 (Vernon Supp. 2008).
3
… Tex. Penal Code Ann. § 19.02 (Vernon 2003).
In the early morning hours of August 7, 2005, appellant, a member of the
Varrio Northside street gang, shot and killed Juan Rodriguez, a member of the
rival Los Homeboys gang.
Following a three-day jury trial, appellant was found guilty of engaging in
organized criminal activity and murder. After hearing additional evidence and
argument, the jury assessed punishment at twenty-five years’ confinement for
engaging in organized criminal activity, and life for murder. 4 The trial court
sentenced appellant in accordance with the jury’s verdict and ordered the
sentences to run concurrently.5
In his first and second points, appellant contends the evidence was
factually insufficient to support the verdicts.
When determining factual sufficiency, we review all the evidence in a
neutral light, favoring neither party.6 We then ask whether the evidence
supporting the conviction, although legally sufficient, is nevertheless so weak
that the fact-finder’s determination is clearly wrong and manifestly unjust or
whether conflicting evidence so greatly outweighs the evidence supporting the
4
… A prior felony conviction enhanced both sentences.
5
… See Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2008).
6
… Watson v. State, 204 S.W .3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
2
conviction that the fact-finder’s determination is manifestly unjust. 7 To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. 8
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” 9 We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. 10 We may not simply substitute our judgment for the fact-
finder’s.11 Unless the record clearly reveals that a different result is appropriate,
we must defer to the jury’s determination of the weight to be given
contradictory testimonial evidence because resolution of the conflict “often
7
… Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
8
… Watson, 204 S.W.3d at 417.
9
… Id.
10
… Id.
11
… Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997).
3
turns on an evaluation of credibility and demeanor, and those jurors were in
attendance when the testimony was delivered.” 12 Thus, we must give due
deference to the fact-finder’s determinations, “particularly those determinations
concerning the weight and credibility of the evidence.” 13
When reviewing a factual-sufficiency challenge, we must discuss the
evidence appellant claims is most important in allegedly undermining the jury’s
verdict.14 In this case, appellant argues that the evidence is factually
insufficient to support his murder conviction because (1) no physical evidence
linked him to the crime; (2) the trial testimony of David Mata, Jessica Ramirez,
Jesus Duran, and Mark Monreal “conflicts with each other, with their
statements previously given to the police, and with the forensic evidence
produced at trial”; and (3) because Mata, Duran, and Monreal had lengthy
criminal records.
A person commits murder if he either (1) intentionally or knowingly
causes the death of an individual; or (2) intends to cause serious bodily injury
12
… Johnson, 23 S.W.3d at 8.
13
… Id. at 9.
14
… Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
4
and commits an act clearly dangerous to human life that causes the death of
an individual. 15
The jury is the sole judge of the facts, the credibility of the witnesses and
the weight to be given the evidence. 16 Therefore, the jury is free to believe or
disbelieve all or part of any witness’s testimony.17 A factual-sufficiency
challenge will not necessarily be sustained simply because the record contains
conflicting evidence upon which the fact-finder could have reached a different
conclusion.18
The evidence showed that appellant was a member of a Fort Worth street
gang, Varrio Northside (“VNS”). Juan Rodriguez and David Mata were
members of a rival gang, the Los Homeboys (“LHB”). Animosity between the
gangs dated back to 1993 when Mata’s older brother, LHB-gang-member Greg
Mata, murdered VNS-gang-member Noah Soto.
15
… Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003).
16
… Cain, 958 S.W.2d at 407; see Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979).
17
… See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998).
18
… See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App.
1997) cert. denied, 535 U.S. 982 (2002).
5
On the night Rodriguez was killed, he and Mata were sitting in his car in
the parking lot outside Jessica Ramirez’s apartment. Appellant and Jesus
Duran walked by and tried to see who was in the car.
Mata knew appellant did not like him because his brother had killed Soto
years before. Mata asked Rodriguez to take him home. Rodriguez told him not
to worry because Rodriguez and appellant were both members of another gang
and had recently hung out together. Rodriguez exited the car alone and shook
hands with appellant and Duran.
The two insisted that Mata also exit the car. Mata did so to avoid any
trouble. Appellant asked for Mata’s name. When Mata said, “David Mata,”
appellant lifted his shirt, drew a pistol, cocked it, put it back in his pants, and
asked if he was Greg Mata’s brother. Mata acknowledged that he was, the
scene became tense, and Mata believed something would happen.
Appellant demanded Ramirez’s cell phone “before [he did] something
stupid.” Mata heard appellant say into the phone, “Yeah, he’s here right now,
I got him here right now.”
Rodriguez urged Mata to leave, insisting that he could keep appellant and
Duran from doing anything. Eventually, Mata went around the apartment
building to use the restroom and did not come back.
6
Realizing that Mata had gone, appellant “snapped,” re-drew the pistol,
pointed it at Rodriguez and ordered him into the car. Appellant instructed Duran
to follow them. Not far from the apartment-complex exit, Duran saw appellant
shoot Rodriguez.
From inside her apartment, Ramirez heard gunshots. She called appellant
several times, who, when he finally answered, told her that he had shot
Rodriguez.
Sometime later, appellant talked to Mark Monreal, an original VNS
member and Soto’s cousin. Appellant told Monreal that he had killed a friend
of Greg Mata in a car to avenge Soto’s murder. Appellant asked if the killing
would promote him in the gang.
At the house where appellant was arrested, police found a Taurus pistol
wrapped in a blue towel resting in a tree stump. Forensic testing linked the
pistol to projectiles and cartridge cases recovered from the site of Rodriguez’s
killing.
Having reviewed all the evidence in a neutral light, we cannot say that the
evidence supporting appellant’s murder conviction is so weak that the verdict
seems clearly wrong and manifestly unjust or that the verdict is against the
7
great weight and preponderance of the evidence.19 Therefore, we find the
evidence factually sufficient.20 We overrule point one.
In point two, appellant claims that the evidence is factually insufficient
to sustain his conviction for engaging in organized criminal activity because,
even if he killed Rodriguez, his actions “were performed by [himself], alone, and
not as part of a common scheme, organization, or combination[] to establish,
maintain or participate as a member of a criminal street gang.” He argues that
“a single offense, committed by a single actor, even if given a genesis in gang
activity” does not constitute engaging in organized criminal activity.
A person commits the offense of engaging in organized criminal activity
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 . . . murder.21 A criminal street gang is 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
19
… See Johnson, 23 S.W.3d at 11.
20
… See Watson, 204 S.W.3d at 414; Clewis v. State, 922 S.W.2d 126,
133–34 (Tex. Crim. App. 1996).
21
… Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2008).
8
activities.22 Under the plain language of § 71.02(a), a person may be convicted
of engaging in organized criminal activity by individually committing murder.
Moreover, the evidence clearly established that appellant committed the
offense of engaging in organized criminal activity. Appellant is a member of a
criminal street gang, VNS, one of the larger gangs in Fort Worth, with three or
more members. VNS has a common identifying sign or symbol and identifiable
leadership. Its members regularly or continuously associate in the commission
of criminal activities, including assaults, drug offenses, weapons violations,
burglaries, and homicides.
Appellant drew a pistol from his pants, cocked it, and returned it to his
pants when he learned that Mata shared his last name with someone who had
killed a fellow gang member in the past. When appellant learned that Mata was
the brother of the one who had killed his fellow gang member, the scene
became tense and Mata feared that something would happen. Appellant made
a telephone call, telling someone on the other end, “Yeah, he’s here right now,
I got him here right now.”
When Mata left at the insistence of Rodriguez, and appellant realized that
Mata was not coming back, he “snapped,” pulling the gun on Rodriguez.
22
… Tex. Penal Code Ann. § 71.01(d) (Vernon 2003).
9
Appellant instructed Duran to follow him, and appellant and Rodriguez left in
Rodriguez’s car. After traveling a short distance, appellant shot Rodriguez.
Appellant told Monreal, a senior gang member in VNS, that he had killed
a friend of Greg Mata’s in a car to avenge the death of Monreal’s cousin, Soto,
whom Greg Mata had killed years before. Appellant asked Monreal if killing
Rodriguez meant he could get his “stripes” in the gang, i.e., if he could move
up in its hierarchy.
Mata testified that Rodriguez was killed because he was Mata’s friend
and “because he got [Mata] out of there.” Mata testified that appellant was
after him, was angry that Rodriguez had helped him, and decided to kill
Rodriguez after Mata left.
Viewing all the evidence in a neutral light, we cannot say that the jury’s
verdict seems clearly wrong and manifestly unjust, nor that it is against the
great weight and preponderance of the evidence. Because the evidence is
factually sufficient to sustain the jury’s verdict that appellant is guilty of
engaging in organized criminal activity, we overrule point two.23
In his third point, appellant claims that the trial court erroneously admitted
evidence that appellant was a member of the prison gang Tango Blast.
23
… See Watson, 204 S.W.3d at 414; Clewis, 922 S.W.2d at 133–34.
10
Texas Code of Criminal Procedure article 38.36(a) provides that in all
prosecutions for murder, the state or the defendant shall be permitted to offer
testimony as to all relevant facts and circumstances surrounding the killing and
the previous relationship existing between the accused and the deceased.24
This provision must be read in conjunction with Rules 403 and 404(b) of the
Texas Rules of Evidence. 25 Reading the three provisions together, prior-
relationship evidence is admissible unless its probative value is substantially
outweighed by unfair prejudice, confusion of the issues, misleading of the jury,
considerations of undue delay, or needless presentation of cumulative
evidence.26 Further, the evidence cannot be admitted solely to show that the
accused acted in conformity with his bad character and murdered the victim. 27
24
… Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005).
25
… Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999); see Bush
v. State, 958 S.W.2d 503, 505 (Tex. App.—Fort Worth 1997, no pet.).
26
… Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006), cert.
denied, 127 S. Ct. 1289 (2007).
27
… Garcia, 201 S.W.3d at 703.
11
The admissibility of evidence is within the discretion of the trial court and
will not be overturned absent an abuse of discretion.28 If the trial court’s ruling
was within the zone of reasonable disagreement, we must affirm. 29
Here, appellant’s membership in the Tango Blast gang was relevant to
the circumstances of the murder. Mata testified that he was apprehensive
when he saw appellant because he knew appellant did not like him because
Mata’s brother had killed Soto, years before. Rodriguez allayed Mata’s fears by
explaining that appellant and he were members of Tango Blast and that he and
appellant had recently hung out together. Rodriguez’s and appellant’s
membership in the same gang helped explain Rodriguez’s belief that he could
keep appellant and Duran from doing anything when Mata left the scene. The
evidence was not offered solely to show that appellant murdered Rodriguez
because he acted in conformity with his bad character.
Having held the evidence to be relevant to the circumstances of the
murder, we must determine whether its probative value was substantially
28
… Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003);
Montgomery v. State, 198 S.W.3d 67, 79 (Tex. App.—Fort Worth 2006, pet.
ref’d).
29
… Moses, 105 S.W.3d at 627; Montgomery, 198 S.W.3d at 79.
12
outweighed by the danger of unfair prejudice. 30 To make this determination, we
must consider the inherent probative force of the proffered item of evidence
along with the proponent’s need for that evidence, and balance these
considerations against the following four factors that favor exclusion:
(1) any tendency of the evidence to suggest [a] decision on an
improper basis,
(2) any tendency of the evidence to confuse or distract the jury
from the main issues,
(3) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of
the evidence, and
(4) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already
admitted.31
In this case, the probative force and the State’s need to admit evidence
that Rodriguez and appellant were members of the same gang outweigh the
30
… Montgomery v. State, 810 S.W.2d 372, 388–89 (Tex. Crim. App.
1990)(op. on reh’g).
31
… Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.
2006).
13
factors that favor exclusion. Although a defendant’s membership in a gang
such as Tango Blast — whose membership is open only to persons who have
been incarcerated — could have a tendency to influence a jury to convict on the
basis of the defendant’s incarceration for a prior conviction, any such tendency
is minimal here, where the evidence of guilt is so compelling. In addition to
hearing eye-witness testimony from a person who saw appellant shooting
Rodriguez, appellant’s admission to Ramirez and Monreal that he shot Rodriguez
was before the jury. The force of this evidence was strong enough to
overcome any tendency the jury might have to convict on the basis of his
prison gang membership. It was also unlikely that the prison gang membership
would confuse and distract the jury, or be given undue weight given the
compelling evidence of guilt.
Furthermore, the record shows that the prison gang evidence did not
consume inordinate time and was not repetitious. Appellant’s trial first
mentioned that Tango Blast was a prison gang in her opening statement.
Thereafter, over the next three days of trial and 449 pages of record, the
State’s evidence of appellant’s membership in the gang appears on only five
pages, including one devoted to mitigating evidence that a person could join the
gang while being held in the county jail for a misdemeanor offense. Neither
14
appellant’s trial counsel nor the State mentioned the membership in Tango Blast
in closing argument.
Because the factors favoring exclusion do not substantially outweigh the
probative force of the evidence and the State’s need for it, we hold that the
trial court did not abuse its discretion in admitting evidence of appellant's
membership in Tango Blast under rule 403. We overrule point three.
Having overruled all of appellant’s points, we affirm the judgment of the
trial court.
PER CURIAM
PANEL: CAYCE, C.J.; HOLMAN and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 4, 2008
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