Johnny Oscar Villarreal v. State

NUMBER 13-08-00239-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESUS GARCIA MUÑOZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Garza

A jury convicted appellant, Jesus Garcia Muñoz, of three counts of aggravated

assault and two counts of engaging in deadly conduct with a punishment enhancement for

engaging in organized criminal activity. See TEX . PENAL CODE ANN . §§ 22.02(a), 22.05(b),

71.02(a)(1) (Vernon 2003 & Supp. 2008).1 The jury assessed punishment at ten years’

1
Generally, an aggravated assault conviction constitutes a second-degree felony. T EX . P EN AL C O DE
A N N . § 22.02(b) (Vernon Supp. 2008). Moreover, section 22.05(e) of the penal code provides that a conviction
for engaging in deadly conduct— such as knowingly discharging a firearm at another person— is a third-degree
felony. Id. § 22.05(b), (e) (Vernon 2003). However, the jury also concluded that appellant com m itted the
incarceration in the Texas Department of Criminal Justice-Institutional Division with no fine

for the two counts of engaging in deadly conduct and a probated ten-year sentence with

no fine for the three counts of aggravated assault.2 By five issues, appellant contends that:

(1) the evidence is legally and factually insufficient to support his conviction; (2) the

evidence is legally and factually insufficient to support the jury’s conclusion that he was a

member of a criminal street gang; and (3) the trial court erred in allowing lay testimony

pertaining to criminal street gangs. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 11, 2007, a San Patricio County grand jury indicted appellant and

his co-defendant Guadalupe C. Ortiz with three counts of aggravated assault and two

counts of engaging in deadly conduct corresponding to an alleged drive-by shooting

occurring on June 20, 2007.3 Specifically, the indictment provided that appellant and Ortiz

intentionally and knowingly threatened Dennis Limmon Jr., John Limmon, and Juan Garza

with “imminent bodily injury by shooting,” see id. § 22.02(a), and that appellant and Ortiz

knowingly discharged a firearm in the direction of a habitation and a vehicle while reckless

as to whether the habitation or the vehicle were occupied. See id. § 22.05(b). The

indictment also contained an enhancement paragraph alleging that appellant and Ortiz

committed these offenses while members of a criminal street gang.

offenses as a m em ber of a crim inal street gang and assessed punishm ent pursuant to section 71.02 of the
penal code, which provides that if a defendant com m its or conspires to com m it, am ong other things, deadly
conduct or aggravated assault as a m em ber of a crim inal street gang, the punishm ent range is one category
higher than the m ost serious offense. See id. § 71.02(a)(1), (b) (Vernon Supp. 2008). Therefore, appellant
was subject to the punishm ent range for first-degree felonies. See id.

2
The punishm ent range for a first-degree felony is “not m ore than 99 years or less than 5 years.” Id.
§ 12.32(a) (Vernon 2003).

3
Ortiz is not a party to this appeal.

2
 On March 3, 2008, appellant’s jury trial commenced. The State called five

witnesses in its case-in-chief—Claudia Olivares, John Limmon, Dennis Limmon Jr., Isaac

Leal, and Augustine Perez. The defense also called five witnesses—Daryl Lee Jones,

Dorinda Cisneros by deposition, Virginia Lopez, Adelita Baizabal, and Beatriz Garcia.

A. Olivares’s Testimony

Olivares testified that during the month of June 2007, she was living in government

housing in Aransas Pass, Texas, with her daughter and that her boyfriend, Juan Garza,

was visiting. At about 10 p.m. on the night of June 20, Dennis and John came over to

Olivares’s apartment. Garza met John outside on the porch, and the two began talking.

Dennis remained in the vehicle. Olivares remained inside the apartment tending to her

daughter. Approximately ten minutes after Dennis and John had arrived at her apartment,

Olivares heard gunshots. Olivares immediately ran to the porch to instruct Garza to come

inside. While doing so, Olivares noticed Ortiz’s maroon car with a head hanging out the

passenger window.4 Olivares then went inside the apartment and closed the front door.

She heard additional gunshots and subsequently ran to the back of the apartment with her

daughter. In all, Olivares noted that she heard more than five gunshots. Olivares stated

that her apartment had a back door that led to a parking lot. Olivares proceeded toward

the back door with her daughter in tow. Olivares wanted to run to her next-door neighbor’s

apartment, but she stopped because she saw Ortiz’s vehicle coming around the back of

the apartment. Olivares ran to the front door where she found Garza and John still on the

porch. She then got in her car and drove with her daughter to a nearby Sonic to call the

4
Olivares testified that she had known Ortiz since they were younger.

3
police. Garza, Dennis, and John drove away.5 When Olivares returned to her apartment

two days later, she found two bullet holes in her upstairs window with one of the bullets

lodged in the window. Shortly thereafter, Olivares called the police to investigate the

incident.

B. John’s Testimony

John testified that he was sixteen years old at the time of trial, attended Aransas

Pass High School, and lived with his parents and brother, Dennis.6 John and Dennis got

off work at approximately 11:00 p.m. on June 20 and proceeded to Olivares’s apartment

to meet Garza. When John and Dennis arrived at the apartment, John got out and began

talking to Garza while Dennis stayed in the vehicle.7 The conversation between John and

Garza was interrupted by a car with a loud engine coming down the street. John first

noticed that the vehicle was “going pretty fast down the road.” As the vehicle got closer

to the apartment, John observed that it was a “red Mercury or Buick” and that it slowed

down in front of the apartment. “At that time I [John] saw the Defendant [appellant] hop

up on top of the window seal [sic], reach across the top of the car with a gun and start firing

at us.” John identified the driver of the vehicle as “Lupe Ortiz”8 and the shooter as

appellant. In describing the gun allegedly used by appellant, John stated that it was

“silverish.”9 John testified that appellant had pointed the gun at Garza and him and fired

5
On cross-exam ination, Olivares noted that Garza was wanted by authorities for another unrelated
incident but that she was unaware of his whereabouts.

6
At the tim e of the incident, John was fifteen years old.

7
According to John, Dennis never exited the vehicle while it was parked at the apartm ent.

8
Throughout the record, Ortiz is referred to as “Loop” or “Lupe Ortiz.”

9
On cross-exam ination, John testified that he believed that appellant had used a .45 caliber handgun
in com m itting the offenses.

4
about seven bullets. One bullet hit the wall of the apartment approximately six inches from

John’s head. John further testified that he was fearful for his life when appellant fired the

gunshots. After appellant sprayed the scene with seven bullets, he and Ortiz drove away.

John ran around to the back of the apartment building where he once again saw

Ortiz’s vehicle. He then ran back around to the front of the apartment. Once he no longer

saw Ortiz’s vehicle, John, Dennis, Garza, Olivares, and her daughter drove to the nearby

Sonic, where Olivares was dropped off so she could call the police. John and Dennis

returned home. John later gave a statement to the police regarding the incident.

John testified that he had purchased a Buick LeSabre from his grandfather for $300,

and that the vehicle did not have any bullet holes prior to June 20. John identified State’s

exhibit numbers 2 through 5 as photographs of his vehicle with bullet holes in it. When

questioned about his relationship with Garza, John stated that they had first met in the

summer of 2006 because the same people were messing with both of them and because

Garza was the next-door neighbor of John’s friend, Jose Nino. John stated that the people

who were messing with Garza and him were members of the Raza Varrios Crips (“RVC”),

a criminal street gang in Aransas Pass which is identified by its distinct gang sign and blue

bandanas. Both Garza and John had gotten into fights with RVC members in the past.

C. Dennis’s Testimony

Dennis testified that at the time of trial, he was eighteen years old and lived at home

with his parents and John. Dennis noted that he knew appellant, Ortiz, and Garza. Dennis

and John got off work around “10:30 or 11 o’clock” on the night of the incident. Dennis

drove John and himself to Olivares’s apartment in John’s car so that they could meet with

Garza. When they arrived, Dennis stayed in the vehicle while John went up to the porch

5
to speak with Garza. Shortly thereafter, Dennis observed a red Mercury driving by and

shooting at them. Dennis had seen the red Mercury before and identified it as Ortiz’s

vehicle. Dennis testified that the vehicle started down the street driving rapidly but slowed

once it was in front of Olivares’s apartment. Dennis noticed that appellant was the

passenger in the vehicle and that appellant sat on the “window pane and leaned over the

car and started shooting.” Dennis noted that either Angel Garcia or St. John Lopez, Jr.,

also known as J.J., was sitting in the back seat of Ortiz’s car. Dennis stated that the gun

was silver, that it looked like a .45 caliber handgun, and that the shooting was toward

John’s car and toward Olivares’s apartment. John’s car was struck by bullets that night

while Dennis was inside the car.

Once he heard the gunshots, Dennis put his seat down and leaned back. In all,

Dennis heard about six or seven gunshots. Once the gunshots ceased, Dennis instructed

John, Garza, Olivares, and her daughter to get inside the car so he could take them to

safety at the local Sonic. Olivares and her daughter exited the vehicle once they arrived

at the Sonic. Dennis gave the police an oral statement about the incident on the night of

the incident and, about a month later, he gave a written statement.

On cross-examination, Dennis admitted that he was indicted for engaging in deadly

conduct for allegedly firing a shotgun at the house of appellant’s parents later that evening.

On re-direct, Dennis testified that appellant yelled out “mother[]fucker” prior to the shooting

and that he had ten to fifteen “quarrels” with appellant in the past, the last one occurring

approximately one month prior to the incident. In addition, Dennis testified that he was

familiar with the RVC in Aransas Pass and was asked to join prior to entering high school.

Dennis claimed that appellant (1) had a MySpace page where he claimed to be a member

6
of the RVC, (2) regularly threw RVC gang signs, (3) wore blue clothes and blue bandanas,

(4) screamed out “Crip” at Dennis, (5) spoke regularly about RVC before and after Dennis

was asked to join, and (6) confronted, harassed, and assaulted Dennis with other RVC

gang members in a parking lot and at high school football games. However, he never filed

a report with police about any of his prior run-ins with RVC gang members. Dennis

admitted that he was not in a gang and was not aware of the legal definition of a criminal

street gang.

D. Leal’s Testimony

Leal testified that he is an investigator for the 36th Judicial District Attorney’s Office

and that he specializes in investigating gangs and violent crime. In particular, Leal is

responsible for identifying gang members and maintaining a local gang database in

conjunction with the Texas Department of Public Safety. Leal noted that he: (1) has

participated in basic and intermediate gang investigator courses; (2) regularly attends

annual gang investigator conferences; (3) teaches police officers about gang

investigations; and (4) conducts presentations to public school children about gang

prevention. Leal testified that he has had experience investigating gangs in Aransas Pass,

including the RVC. Based on his investigation, Leal concluded that appellant was a

member of the RVC.10 Leal relied on appellant’s MySpace page which contained “gang-

related paraphernalia and other RVC gang members all displaying gang signs, wearing

10
Specifically, Leal noted the following in explaining his conclusion that appellant was a m em ber of
a crim inal street gang: “On 3-27-07 Jesus Muñoz was docum ented, reported to be a gang m em ber by a
reliable source, frequenting the areas of gangs, associating with known gang m em bers, and using gang dress,
hand signs, tattoos or sym bols.”

7
gang-related paraphernalia were also located.”11 In identifying a person as a gang

member, Leal noted the following:

To be confirmed as a gang member[,] the individual has to meet two of the
following criteria: Self-admission of gang membership, and that’s either by
virtually acknowledging that they are in a criminal street gang, or that can
occur non-verbally by the way they dress, act[,] and report themselves to be,
I.D. by reliable informant[,] or other individual. A reliable informant could be
a police officer, a teacher, a counselor, a coach, [or] some person in the
community.
A corroborated I.D. by an informant or other individual of unknown
reliability, that’s going to be somebody that’s listed as a confidential
informant, somebody who gives information on another gang member that’s
in that gang or a rival gang member. Or frequenting a documented gang
area, associating with known gang members, and using gang dress, hand
signs, tattoos or symbols; or evidence of being arrested, taken into custody
with known gang members for an offense or conduct consistent with criminal
street gang activity.

Leal stressed that his office works in collaboration with other jurisdictions to identify

potential gang members. Leal testified that the RVC was a turf-based gang and stated that

the RVC:

identify with the color blue, they use the number 13 to identify themselves as
well, they refer to another as “cuz”, they use 18-22-3 and 2-11, which
represent Raza Varrios Crips, the 18th, the 22nd and the third letter of the
alphabet. The 2 and 11 represent the second and 11th letters of the
alphabet, which is “B-K”, which is a derogatory term they use to identify
themselves as Blood Killers.
Tattoos on the right hand, three dots which represent dead [sic], jail,
[and] hospital. And they claim north side of Aransas Pass, Texas, use the
letters “A.P.T.”, which represents Aransas Pass, Texas, as well as the
numbers 361. Gang members will write blue graffiti on walls in the
neighborhoods to mark their particular territorial boundaries.

Leal testified as to the execution of a search warrant on appellant’s residence.

Appellant had a blue bandana hanging on the wall and numerous other gang-related

11
Appellant was depicted in several pictures contained on his MySpace page. In these pictures,
which were adm itted into evidence, appellant was shown throwing RVC gang signs, associating with known
RVC m em bers, including Ortiz, and wearing the colors of RVC.

8
paraphernalia in his room. Also in his room, appellant had several monitors for

surveillance cameras, a dollar bill displayed that had the face of “Scarface,” a fictional

cinematic gangster, a security box with the letters “B” and K” prominently displayed, and

some ammunition. Leal also found that the initials “RVC” were carved into a tree at the

back of appellant’s residence. Investigators found a collection of photographs at

appellant’s residence depicting appellant in various poses with known gang members.

Leal testified that the RVC’s territory is the north side of Aransas Pass and that appellant’s

residence was located on the north side of Aransas Pass. However, Leal noted that no

gun was found in appellant’s room and that Ortiz’s red Mercury was not found at the

residence.

E. Perez’s Testimony

Perez testified that he had worked for the Aransas Pass Police Department for

approximately four years and that he served as a detective. Based on his experience,

Perez noted that RVC members regularly engaged in “[s]imple assaults to aggravated

assaults, deadly conducts, graffiti cases, [and] robbery case[s]” and that he had

investigated several of these cases.12 Perez stated that he had recently investigated an

aggravated assault and deadly conduct case involving RVC members. Perez also stated

that on one instance in either 2004 or 2005, appellant admitted to being a member of a

criminal street gang; however, no report was filed.

Perez later testified that he participated in the investigation of Olivares’s apartment.

While there, Perez found two bullets: one underneath a vehicle’s right rear tire and

12
In particular, Perez m entioned an aggravated assault case occurring at “the Ram os area located
at 360 South Tech Street.” In that case, appellant and Sam uel Lopez, a suspected but not confirm ed RVC
m em ber, were indicted.

9
another in the street. Perez then went to the Limmons’ house to investigate another

shooting. Perez found Garza, Dennis, and John there. Perez observed that John’s car

had a bullet hole in it. Perez found “a jacket of a projectile, as well as some lead” inside

the car. Later, Garza and Dennis provided him with signed statements while John provided

an unsigned statement.

Perez also participated in the search of appellant’s residence. Perez noted that

Ortiz and appellant lived in the same house with Beatriz Garcia. While searching the

house, Perez found a Glock model handgun and two magazines in Ortiz’s bedroom but

found no handguns in appellant’s bedroom. The handgun was collected as evidence; the

handgun and the bullets found at Olivares’s apartment were then sent off for ballistics

analysis. According to the ballistics testing, the bullets found at Olivares’s apartment did

not match the handgun; however, the bullets did match a Chinese S.K.S. assault rifle found

by Perez in a vehicle parked at appellant’s house. This vehicle was not the red Mercury;

a later search of the red Mercury yielded nothing.

As elicited on cross-examination, Perez admitted that he did not conduct: (1) any

tests to conclude how long the bullet had been at the scene or whether the bullet was “hot

or cold”; (2) a gun residue test on appellant because the department did not have any tests

at the time; or (3) a fingerprint test on the handgun. In addition, investigators did not test

for skid marks in the road in front of Olivares’s apartment.

F. Appellant’s Motion for Directed Verdict

After the State rested its case-in-chief, appellant moved for a directed verdict. The

trial court denied appellant’s motion, and appellant proceeded to call witnesses to testify

on his behalf.

10
G. Jones’s Testimony

Jones testified that he was the Chief of Police for the City of Aransas Pass and that

he had served in that position for four-and-one-half years. Jones described the various

policies of the police department. Jones stated that the department had $15,000 allocated

for training and supplies, including gun residue kits, but that it is the job of the police

captain to either obtain a kit from a neighboring police department or order new ones.

Jones also stated that: (1) it is the department’s policy to fulfill every request for a gun

residue test; (2) the department can request additional funds from the City Manager to fulfill

a request; and (3) no request for a test or additional funding was ever made in the present

case.

On cross-examination, Jones testified that the reason the department was out of

gun residue kits was because they were used up on several drive-by shootings that had

recently occurred in the city.

H. Cisneros’s Deposition Testimony

Cisneros, then serving in the United States Navy, testified that she worked for

Dunes Condominiums with Beatriz and that she lived in Beatriz’s house during the month

of June 2007. Appellant and Ortiz also lived in the house; their bedrooms were upstairs.

On the night of June 20, Cisneros was in Beatriz’s master bedroom watching television.

Later that night, she heard “incoming shots.” She immediately left the bedroom and saw

appellant, Beatriz, Ortiz, and Beatriz’s daughter downstairs. Cisneros testified that prior

to the gunshots, she had last seen appellant go upstairs at about 11 p.m. Cisneros last

saw Ortiz go upstairs around 9 p.m. Cisneros noted that between the hours of 11 p.m. and

12 a.m., she and Beatriz were downstairs talking in the dining room and that she believed

11
that appellant was upstairs.

On cross-examination, Cisneros denied having any knowledge as to whether

appellant or Ortiz were gang members. However, she noted that she has never gone

upstairs into appellant’s or Ortiz’s rooms. She also denied ever seeing guns, weapons, or

drug use in the house. Cisneros testified that she was present during the search of the

house, but she denied ever seeing any handguns or rifles removed from the house. She

later recanted and stated that “I was not home during the search of the home.” Cisneros

admitted that she did not have any personal knowledge as to whether appellant and Ortiz

were really upstairs that evening.13 After being prompted by the State, Cisneros then

remembered that several of appellant’s and Ortiz’s friends had stayed over at the house

that night. Cisneros volunteered to give the police a statement as to the whereabouts of

appellant and Ortiz that night; however, she failed to make time to do so.14 When asked

why she volunteered, Cisneros stated that “I did it because Beatrice [sic] is a good friend

of mine and I wanted to because I was there. And also, I am a witness, so I don’t see why

not, ma’am.” She also admitted that Beatriz had brought her to the deposition and that

Beatriz lets her stay at the house on occasion.

I. Lopez’s Testimony

Lopez testified that she lived in Aransas Pass with her common-law husband and

her three children, including Benito Lopez and J.J. According to Lopez, on the night of

June 20, J.J. was at home because they were very strict about him completing his

13
In fact, she adm itted that she assum ed appellant and Ortiz were upstairs because “Beatrice [sic]
didn’t ask m e where they were, so.”

14
W hen asked on re-direct about why she failed to give the police a statem ent, Cisneros noted “No
reason, sir. Just— I guess I was, like, slacking, sir.”

12
probation. Lopez, however, only recalled that J.J. ate dinner with the family; she was not

sure about what exactly J.J. was doing the rest of the evening even though she insisted

that he did not leave the house.

On cross-examination, Lopez denied that either Benito or J.J. were members of the

RVC. However, Lopez did admit that Benito does not live with her and that it was possible

that he is a member of the RVC. When presented with various photographs offered into

evidence by the State, Lopez identified Benito and appellant in several pictures together

with Benito wearing a blue bandana over his face. In another picture, Lopez identified

Benito and Ortiz. In this picture, Ortiz was “doing something with his fingers,” but Lopez

denied having any knowledge of gang signs.

J. Adelita’s Testimony

Adelita testified that she lived in Aransas Pass with her common-law husband and

four daughters. Adelita noted that she also has a son, Angel Garcia, and that her sister

is Beatriz Garcia.15 At the time of trial, Angel was nineteen years old and not living in

Adelita’s trailer; however, on the night of the incident, Angel was living there. Adelita stated

that she worked at the Dunes Condominium with Cisneros and Beatriz. She further stated

that she lived four blocks away from Beatriz and that it was a ten-minute walk to her house.

Angel did not have a car at the time of the incident, so Adelita’s ex-husband, Marcello

Baizabal, would drive Angel to work.

On the night of the incident, Adelita recalled Angel coming home from work and

staying home the remainder of the night “because he had to get up early the next morning

to go to work.” Adelita stated that there was no way Angel could have left the trailer that

15
Adelita testified that appellant and Angel are cousins.

13
night because he usually stays home during the week, she regularly checks up on her

children prior to going to bed around 11 p.m., and the back door of the trailer cannot be

opened without a set of keys which only she and her husband possess. Neither Adelita

nor her husband opened the back door for Angel on the night of the incident.

On cross-examination, Adelita testified that on June 21, 2007, Angel was scheduled

to work at the Sandpiper Condominiums in Port Aransas; however, when shown a picture

taken by police at Beatriz’s house on June 21, Adelita acknowledged that one of the men

in the picture was Angel. Adelita denied having any knowledge of Angel possessing an

assault rifle or being in the RVC. Later, Adelita admitted that she was related to Lopez

because “she’s married to my cousin” and that Angel hangs out with Benito and J.J. After

viewing a photograph offered into evidence by the State, Adelita recognized Angel as

holding a blue bandana and posing next to J.J. and appellant. In other photographs,

Adelita recognized Lupe and Benito and Angel and Benito posing together wearing blue

shirts and blue bandanas and making gestures with their hands. Adelita also admitted that

the pictures could have been taken in Beatriz’s house.

K. Beatriz’s Testimony

Beatriz testified that she worked at the Dunes Condominiums as a supervisor of

housekeeping. During the month of June 2007, Beatriz allowed Cisneros to live with her.

As a supervisor of housekeeping, Beatriz had access to the time machine used to manage

employee work schedules. Employees were required to punch in when they arrived at

work and to punch out when they left work. Beatriz stated that on the day of June 20,

Cisneros was not working.

At the time of trial, Beatriz had lived at her house in Aransas Pass for three years.

14
Also living at the house was appellant, Ortiz, her fourteen-year-old daughter, and, for a

time, Cisneros. Beatriz testified that Ortiz was her “blood cousin.” She further testified that

during the month of June 2007, appellant was recovering from gunshot wounds sustained

on his arm and upper hip. As a result of his injuries, appellant was not working during the

month of June 2007.

With respect to the layout of the house, Beatriz noted that appellant, Ortiz, and her

daughter all had separate rooms upstairs and that Cisneros stayed downstairs. She further

noted that appellant would have been unable to exit the house by jumping from his upstairs

window because of his injuries and the fact that she could hear everything going on

upstairs even while watching television in her master bedroom. Beatriz then recounted her

experiences with Officer Perez. Specifically, Beatriz stated that her relationship with Perez

had been bad for at least two-and-a-half years because Perez:

A. [Beatriz] . . . shows up to my residence, and he’s always
accusing my boy and my cousin of stuff.

Q. [Muñoz’s counsel] Your boy Jesus?

A. Jesus Muñoz and Guadalupe Ortiz.

....

A. Points fingers. Usually when I call him—usually
I call because I hear gunshots around the
neighborhood late at night all hours. He always
makes comments like, What did you boys do?
Or, Guadalupe, what did you do? Or, Jesus what
did you do now? I told him, I’m the one that
called you, there is no reason to come to my
house and accuse my boy of something because
I’m the one that called you.

(Emphasis in original.) Beatriz noted that Perez did not come to investigate the shooting

allegedly perpetrated by the Limmon boys until the following morning around 8:30 or 9:00

15
a.m.16

On the night of June 20, Beatriz made dinner for appellant, Ortiz, Cisneros, and her

daughter. After finishing dinner, friends of appellant and Ortiz came by. The group of

friends, including Daniel Flores, Timothy Glynn, Colton Warren, and Austin Sampson, went

into the play room of the house with appellant and Ortiz.17 Beatriz last saw Ortiz downstairs

at around 9 p.m. and appellant around 11 p.m. She did not see either appellant or Ortiz

again until midnight.

After the boys went upstairs, Beatriz, Cisneros, and Beatriz’s daughter went into

Beatriz’s master bedroom to watch a movie. At around midnight, Beatriz, asleep at the

time, awoke to gunshots fired at her house; she called the police using her cell phone.

This was the second time that day that Beatriz had heard gunshots fired in the direction

of her house. When she heard the gunshots that night, Beatriz ran to the front of the

house, opened the door, and simultaneously called the police. She recalled hearing and

seeing appellant run down the stairs. She also saw Ortiz running down the stairs with

“Daniel Flores, Timothy [Glynn], Colton [Warren] and Austin [Sampson].” Beatriz

remembered that appellant went outside to seek help.

Beatriz denied having any knowledge of appellant being in a gang or of any gang

meetings occurring at her house. Beatriz later testified that she regularly cleaned

appellant’s room and that she never saw any handguns, rifles, or bullets in his room. She

denied ever seeing a silver handgun anywhere in her house or car.

16
The State later re-called Perez to the stand, and he testified that the reason for the delay in the
investigation was because Beatriz had requested that he wait until the following m orning to com e by and
investigate.

17
The record contains testim ony from Leal that Tim othy Glynn, Colton W arren, and Austin Sam pson
were confirm ed gang m em bers.

16
 On cross-examination, Beatriz testified that as a result of his gunshot wounds,

appellant was only able to climb the stairs “one at a time with a little cane” and that he was

unable to drive a car. Beatriz admitted that Ortiz owned a red car. She also denied any

knowledge of the RVC, and she denied ever asking appellant if he was a member of the

RVC. Law enforcement officers regularly accused appellant of being a gang member, but

Beatriz never found it necessary to question appellant about it. Beatriz later admitted that

parties were thrown at her house by appellant while she was home. Several of appellant’s

friends who were present the night of the shooting attended his parties. When presented

with pictures offered into evidence by the State, Beatriz readily recognized “Ray Thomas,

Angel Garcia, Samuel Lopez, St. John Lopez, Jesus Muñoz” and “Colton, Austin, Timothy

and I believe that’s Aaron.” She also recognized Benito in a picture with appellant. Beatriz

never went to the police department to make a statement regarding the drive-by shooting

that occurred at her house. Moreover, Beatriz admitted that she was aware of weapons

in the house: “a big one and another smaller one.” Beatriz agreed that the big one was

likely to be a rifle and the small one was likely to be a handgun. She found the guns in

Ortiz’s room, but she was uncertain as to whether appellant could have gotten the rifle from

Ortiz’s room on the night of June 20.

II. STANDARD OF REVIEW

In a legal sufficiency review, we view the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). The trier

of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given

17
to testimony. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Jackson, 443

U.S. at 318-39; Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.]

2000, pet. ref'd). We do not reevaluate the weight and credibility of the evidence, whether

circumstantial or direct, nor do we substitute our own judgment for that of the trier of fact.

Mosley v. State, 141 S.W.3d 816, 821 (Tex. App.–Texarkana 2004, pet. ref'd); Beckham,

29 S.W.3d at 151. Instead, we consider whether the jury reached a rational decision.

Beckham, 29 S.W.3d at 151.

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. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Barnes

v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183,

186 (Tex. Crim. App. 1993); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App.

1987)). Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor; circumstantial evidence alone can be sufficient to establish guilt. Guevara v.

State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). On appeal, both circumstantial and

direct evidence cases are examined using the same standard of review. Id.

In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust. Watson, 204 S.W.3d at 414-15. After considering all of the evidence in the record

related to appellant's sufficiency challenge, we compare the evidence weighed by the jury

that tends to prove the elemental fact in dispute with the evidence that tends to disprove

it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997) (en banc). This Court

will not reverse the jury's verdict unless we can say with some objective basis in the record

18
that the great weight and preponderance of the evidence contradicts the verdict. Watson,

204 S.W.3d at 415.

We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002,

pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the

indictment, and would not unnecessarily increase the State's burden of proof.” Malik, 953

S.W.2d at 240. A person commits the offense of engaging in deadly conduct “if he

knowingly discharges a firearm at or in the direction of . . . one or more individuals; or . .

. a habitation, building, or vehicle and is reckless as to whether the habitation, building, or

vehicle is occupied.” TEX . PENAL CODE ANN . § 22.05(b). Moreover, a person commits the

offense of aggravated assault if he “uses or exhibits a deadly weapon during the

commission of an assault.”18 Id. § 22.02(a)(2). A person engages in illegal organized

criminal activity “if, with the 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 . . . deadly conduct . . . .” Id. § 71.02(a)(1).

III. ANALYSIS19

In his first three issues, appellant contends that the evidence is legally and factually

insufficient to support his conviction for aggravated assault and engaging in deadly

18
Section 22.01 of the penal code provides that a person com m its the offense of assault if he “ . . .
intentionally or knowingly threatens another with im m inent bodily injury, including the person’s spouse . . . .”
Id. § 22.01 (Vernon Supp. 2008).

19
As allowed by the appellate rules, the State has not filed an appellate brief in response to appellant’s
contentions. See Siverand v. State, 89 S.W .3d 216, 219 (Tex. App.–Corpus Christi 2002, no pet.) (“The
Texas Rules of Appellate Procedure require appellant to either file a brief or state that he no longer desires
to prosecute the appeal. T EX . R. A PP . P. 38.8(b). However, there is no corresponding rule requiring the State
to file a brief in response to appellant’s brief.”).

19
conduct. Specifically, appellant argues that there was insufficient evidence to demonstrate

that he committed the offenses of: (1) aggravated assault as to Garza; (2) aggravated

assault as to John and Dennis; and (3) deadly conduct as to Olivares’s apartment or John’s

vehicle.

1. Aggravated Assault—Garza

Appellant argues that because Garza did not testify at trial, there was no evidence

demonstrating that he committed the offense of aggravated assault as to Garza. The

following is appellant’s entire argument as to Garza:

The evidence in this case is insufficient in many regards. First, one
complaining witness, Juan Garza, did not show up to court to testify. Only
the complaining witness can testify as to whether they felt threatened by a
certain person. The record has absolutely no evidence or testimony
concerning whether that element was satisfied concerning the aggravated
assault count, (count 1) on Juan Garza.

(Record citations omitted.) We disagree.

Appellant has not cited nor are we aware of any authority requiring that a victim

testify as to whether a threat of imminent bodily injury was communicated. See, e.g., Sosa

v. State, 177 S.W.3d 227, 229-31 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (affirming

a defendant’s conviction for aggravated robbery even though the victim did not testify in

court; the defendant was identified by other eyewitnesses).

In the present case, Olivares, John, and Dennis all testified that Garza was present

at Olivares’s apartment at the time the drive-by shooting occurred. They each testified that

John and Garza were talking on Olivares’s porch when appellant and Ortiz drove past the

apartment. John and Dennis identified the car in the drive-by shooting as a red Mercury

driven by Ortiz. Moreover, both John and Dennis testified that they saw appellant, a

passenger in Ortiz’s car, fire six to seven gunshots in their direction that night and heard

20
appellant yell “motherfucker.” See Robinson v. State, 596 S.W.2d 130, 133 n.7 (Tex. Crim.

App. 1980) (“The display of a deadly weapon of and within itself constitutes a threat of the

required imminent harm.”);20 see also Lunn v. State, 753 S.W.2d 492, 495-95 (Tex.

App.–Beaumont 1988, no pet.) (holding that evidence was sufficient based upon a victim’s

recognition of defendant’s eyes, voice, and words used during the commission of the

assault).

On the other hand, Cisneros and Beatriz testified that appellant and Ortiz were

entertaining friends at Beatriz’s house on the night of the incident. Beatriz stated that

appellant had sustained gunshot wounds that hindered his ability to walk and that she

would have heard him leave; she therefore concluded that appellant could not have gotten

out of the house that night. She further stated that appellant would have been in severe

pain had he jumped out of his upstairs window. However, neither Beatriz nor Cisneros

were certain that either appellant or Ortiz were in their rooms at the time the drive-by

shooting occurred.

The jury was the exclusive judge of the facts proved and of the weight to be given

to the testimony. TEX . CODE CRIM . PROC . ANN . art. 38.04. Therefore, the jurors were free

to accept or reject any or all of the witnesses’ testimony. See Davila v. State, 147 S.W.3d

572, 575 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing Alvarado v. State, 818 S.W.2d

100, 105 (Tex. App.–San Antonio 1991, no pet.)); see also Lancon v. State, 253 S.W.3d

699, 705 (Tex. Crim. App. 2008) (“The jury is in the best position to judge the credibility of

20
Section 1.07(a)(17) of the penal code provides that a “[d]eadly weapon” is “a firearm or anything
m anifestly designed, m ade, or adapted for the purpose of inflicting death or serious bodily injury . . . .” T EX .
P EN AL C OD E A N N . § 1.07(a)(17) (Vernon 2003). The court of crim inal appeals has held that a firearm is a per
se deadly weapon. See Polk v. State, 693 S.W .2d 391, 394 (Tex. Crim . App. 1985). Therefore, the State was
not required to elicit testim ony as to the deadly characteristics of the firearm used.

21
a witness because it is present to hear the testimony, as opposed to an appellate court

who relies on the cold record.”). In convicting appellant, the jury obviously chose to accept

the aforementioned testimony offered by the State and rejected the testimony offered on

appellant’s behalf. We must defer to the jury’s determination. See Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports conflicting inferences,

we presume that the factfinder resolved the conflicts in favor of the prosecution and

therefore defer to that determination.”) (citing Jackson, 443 U.S. at 326).

Based on the foregoing, we conclude that the cumulative force of all the

incriminating circumstances is sufficient to support appellant’s conviction for aggravated

assault as to Garza. See Hooper, 214 S.W.3d at 13; see also Guevara, 152 S.W.3d at 49.

Moreover, the verdict is not against the great weight and preponderance of the evidence.

See Watson, 204 S.W.3d at 414-15. Appellant’s first issue is overruled.

2. Aggravated Assault—John and Dennis

On appeal, appellant contends that law enforcement was required to conduct gun

residue tests on him to determine if it was he who fired the gun that night. Appellant has

not cited to, nor are we aware of, any authority requiring law enforcement to conduct a gun

residue test to prove that a defendant has committed an aggravated assault. Appellant

further notes that the evidence is insufficient because the “silver handgun” that John and

Dennis testified to seeing that night was never found. This Court has held that

contradictory testimony from witnesses does not render the evidence insufficient. See

Davila v. State, 147 S.W.3d 572, 575 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing

Mercado v. State, 695 S.W.2d 25, 29 (Tex. App.–Corpus Christi 1985), aff’d, 718 S.W.2d

291 (Tex. Crim. App. 1986)). In any event, Texas courts have affirmed convictions even

22
though the alleged deadly weapon was never found. See, e.g., Hunter v. State, Nos. 01-

00-00722-CR & 01-00-00726-CR, 2001 Tex. App. LEXIS 4532, at **4-6 (Tex.

App.–Houston [1st Dist.] July 5, 2001, no pet.) (mem. op., not designated for publication)

(affirming a conviction even though the firearm used in the commission of the offense was

never found); Jeffery v. State, No. C14-84-329-CR, 1985 Tex. App. LEXIS 6581, at *3

(Tex. App.–Houston [14th Dist.] Apr. 25, 1985, no pet.) (mem. op., not designated for

publication) (upholding a conviction even though the deadly weapon was not found).

Moreover, the record reflects that law enforcement recovered bullets from underneath

John’s car and from Olivares’s apartment that originated from an assault rifle recovered

from Beatriz’s property where both appellant and Ortiz lived.

Olivares testified that, on the night of June 20, both John and Dennis were at her

apartment talking to Garza on the porch. Furthermore, both John and Dennis stated that

they saw appellant fire six to seven gunshots in their direction from a car driven by Ortiz.

See Robinson, 596 S.W.2d at 133 n.7; see also Lunn, 753 S.W.2d at 495-95. Appellant

also yelled “motherfucker” at them. See Robinson, 596 S.W.2d at 133 n.7; see also Lunn,

753 S.W.2d at 495-95. We therefore conclude that the evidence adduced at trial is

sufficient to support appellant’s conviction for aggravated assault as to John and Dennis.

See Hooper, 214 S.W.3d at 13; see also Watson, 204 S.W.3d at 414-15; Guevara, 152

S.W.3d at 49. Accordingly, we overrule appellant’s second issue.

3. Deadly Conduct as to Olivares’s Apartment or John’s Vehicle

Appellant contends that the evidence was insufficient to support his conviction for

deadly conduct as to Olivares’s apartment and John’s vehicle. As previously mentioned,

Olivares, John, and Dennis testified that appellant fired six to seven gunshots in the

23
direction of John and Garza on the night of June 20. John and Garza were on Olivares’s

porch talking when the drive-by shooting occurred. Several bullets struck Olivares’s

apartment and at least one bullet penetrated John’s vehicle. Olivares and her daughter

were inside the apartment at the time of the shooting. In addition, Dennis was inside

John’s vehicle at the time of the shooting. The jury was rational in concluding that

appellant recklessly fired gunshots at a habitation—Olivares’s apartment—and at a

vehicle—John’s vehicle—without regard to whether either were occupied.21 See TEX .

PENAL CODE ANN . § 22.05(b). We therefore conclude that the evidence adduced at trial is

legally and factually sufficient to support appellant’s conviction for engaging in deadly

conduct. See id. Accordingly, we overrule appellant’s third issue.

4. Lay Testimony About Criminal Street Gangs

In his fifth issue, appellant contends that the trial court erred in allowing lay

testimony concerning criminal street gangs. Specifically, appellant takes issue with

Dennis’s testimony as to appellant’s alleged gang membership; appellant alleges that the

State did not lay the proper predicate to admit this testimony.

A. Standard of Review

A trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2007). We

should uphold the trial court’s judgment unless the trial court’s decision lies outside the

“zone of reasonable disagreement.” Id.

21
As provided by section 22.05(c) of the penal code, “[r]ecklessness and danger are presum ed if the
actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm
to be loaded.” T EX . P EN AL C OD E A N N . § 22.05(c).

24
B. Preservation of Error

Requisite for review of any complaint on appeal is preservation of error. TEX . R.

APP. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). To

preserve a complaint for appellate review, a party must present a timely request, objection,

or motion to the trial court stating the specific ground for the desired ruling if the specific

grounds were not apparent from the context. Adams v. State, 180 S.W.3d 386, 389 (Tex.

App.–Corpus Christi 2005, no pet.). The complaining party must also obtain an adverse

ruling on the objection. Id. Generally, a party’s failure to timely and specifically object at

trial forfeits any error. TEX . R. APP. P. 33.1; see Blue, 41 S.W.3d at 131.

The record does not reflect that appellant objected to Dennis’s testimony pertaining

to his membership in the RVC. We therefore conclude that appellant failed to preserve this

issue for appeal. See TEX . R. APP. P. 33.1; see also Blue, 41 S.W.3d at 131. Even

assuming that appellant had preserved this issue, we conclude that the trial court’s error,

if any, in allowing Dennis to testify as to appellant’s gang membership was harmless

because it was merely cumulative of Leal’s testimony. See Brooks v. State, 990 S.W.2d

278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of testimony was

harmless in light of other properly admitted evidence proving the same fact). Accordingly,

we overrule appellant’s fifth issue.

5. The Enhancement Paragraph of the Indictment

In his fourth issue, appellant argues that the evidence is legally and factually

insufficient to support the jury’s finding that he was a member of a criminal street gang

when the alleged offenses occurred.

25
A. Applicable Law

Section 71.02 of the penal code states that:

(a) A person commits an offense if, with the 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 A misdemeanor, burglary of
a motor vehicle, or unauthorized use of a motor vehicle.

TEX . PENAL CODE ANN . § 71.02(a)(1) (emphasis added). Section 71.01(d) of the penal code

defines a “criminal street gang” as “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.” Id. § 71.01(d) (Vernon 2003).

B. Discussion

Leal, a local investigator responsible for identifying gang members and maintaining

a local gang database in conjunction with the Texas Department of Public Safety, testified

that he uncovered appellant’s MySpace page which included numerous references to the

RVC and other gang paraphernalia. Also included on appellant’s MySpace page were

several pictures indicating that appellant regularly associated with known gang members;

similar pictures were also found in appellant’s bedroom. These pictures also demonstrated

that appellant wore blue clothing, including a bandana, and threw gang signs that were

known to be associated with the RVC. Moreover, Beatriz and Cisneros noted that

appellant regularly associated with Timothy Glynn, Austin Sampson, Colton Warren, and

other individuals whom authorities have previously determined to be gang members. In

fact, both Beatriz and Cisneros admitted that Timothy Glynn, Austin Sampson, and Colton

26
Warren were spending the night at her house on the night of the incident. Moreover, Perez

testified that appellant admitted to him on one occasion that he was a member of a gang

and that RVC members regularly engaged in “[s]imple assaults to aggravated assaults,

deadly conducts [sic], graffiti cases, [and] robbery case[s].” Based on the foregoing, we

conclude that the jury was rational in finding that appellant was a member of a criminal

street gang.

Because we have concluded that the evidence was sufficient to support appellant’s

convictions for aggravated assault and deadly conduct and that the jury was rational in

concluding that appellant was a member of a criminal street gang, we find that the

evidence was legally and factually sufficient to support appellant’s conviction under section

71.02(a)(1) of the penal code. See TEX . PENAL CODE ANN . § 71.02(a)(1); see also Hooper,

214 S.W.3d at 13; Watson, 204 S.W.3d at 414-15; Guevara, 152 S.W.3d at 49. Therefore,

appellant’s fourth issue is overruled.

IV. CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the judgment of the

trial court.

DORI CONTRERAS GARZA,
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 15th day of January, 2009.

27