COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
LUIS ENRIQUE RODRIGUEZ, § No. 08-16-00118-CR
Appellant, § Appeal from the
v. § 34th District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC#20120D05089)
OPINION
By indictment, Appellant Luis Enrique Rodriguez1 was charged with capital murder and
two counts of engaging in organized criminal activity with regard to the death of Luis Fierro and
Roberto Renteria. Following a trial, a jury acquitted Appellant of the murder of Fierro and one
count of engaging in organized criminal activity, but found him guilty of engaging in organized
criminal activity with regard to the murder of Renteria. As punishment, the jury assessed, and the
court imposed, a sentence of confinement for a period of 99 years and a maximum fine of $10,000.
On appeal, Appellant argues he was prosecuted under a fatally flawed indictment that
carried forward its defect to the court’s charge to the jury. Both instruments, he claims, were
flawed in their omission of an intent element required by the charge of organized criminal activity.2
1
Appellant Rodriguez is also known by his street name “Silent” or “Silencio.”
2
TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2017).
In addition, Appellant argues that his constitutional rights were violated in that his conviction
resulted from his mere membership in a criminal street gang; that the evidence was legally
insufficient to support his conviction; that the trial court failed to properly respond to questions
submitted by the jury; and that the trial court erred by ruling against his claim of spousal privilege.
We affirm.
FACTUAL BACKGROUND
At trial, Appellant and others testified he was a member of the Barrio Azteca street gang
that operates widely in the El Paso area. Similarly, evidence showed that victim Luis Fierro3 was
also a Barrio Azteca member. Victim Roberto Renteria,4 however, who was Fierro’s son-in-law,
was not a member, but instead, appeared to be an unfortunate individual who found himself at the
wrong place at the wrong time.
The Barrio Azteca’s Operations
During the trial, Detective Andres Sanchez of the El Paso Police Department, who had
specialized training and experience with investigations of gang activity, testified about the Barrio
Azteca gang, its organizational structure, and its operations. Originally, the Barrio Azteca formed
to protect Hispanic inmates of El Paso who were in need of protection from gangs operating in
Texas prisons. Eventually, it expanded outside of prisons and began operating in the streets of El
Paso. Sanchez described the gang as a highly-structured organization, formed with a constitution,
that followed rules and a para-military structure; “captains” or “capos” are at the highest level of
3
Victim Luis Fierro was also known by the street name “Chuco.”
4
Victim Roberto Renteria was also known as “Chavalon” or “the kid.”
2
its leadership, followed by “lieutenants,” “sergeants,” and lastly, “soldiers.” The captains are
responsible for assigning a “rank” for each member. At the time of Appellant’s trial, four of the
five captains of the gang were serving time in various prisons throughout the country. Despite
being imprisoned, captains coordinated operations by using cell phones smuggled into prisons and
by sending coded messages through calls and letters to outsiders.
Detective Sanchez and others testified that the gang sustained itself, in part, by a form of
extortion, in which they imposed a “tax,” or “cuota,” on others who sold drugs in the area. The
Barrio Azteca divided the city into “sections,” then required members to collect taxes from dealers
operating in respective sections. Tax money collected was routinely placed in a “box,” which
was kept by a person of “trust,” who would then make distributions to other members and include
those who were incarcerated. In essence, the holder of the box acted as a banker, or “treasurer,”
of gang operations. Occasionally, the box included information about individuals who were
believed to be “snitches,” or who had otherwise made incriminating statements against members
facing legal proceedings. By use of the box, information was routinely passed from lower to
higher-ranking members.
At trial, Veronica Cera testified as a witness who had knowledge of gang activities from
her personal history of helping gang members sell drugs and collect taxes.5 Cera was considered
a “trusted courier,” or an “esquina,” which is someone, such as a girlfriend, who helped the gang
but was not a member. In 1998, at twenty-one or twenty-two years of age, Cera began dating a
Barrio Azteca member and often went with him as he collected tax money from dealers in the area.
5
Cera was given immunity for her testimony by the federal government.
3
Over time, she too started selling cocaine for gang operations. When her boyfriend was arrested,
Cera dated another member and helped him distribute heroin for a period of a year and a half.
After her new boyfriend was arrested, she continued selling without him to keep his business
going. Other gang members objected because she was not a member. By its rules, Barrio Azteca
did not allow women to be members, Cera explained. For a year and a half, she then worked at a
restaturant. Once again, however, she started dating another member who was nicknamed “Filo.”
He too was arrested after being charged with capital murder. Cera then started dating Luis Fierro
and eventually became his wife.
As for Fierro, Cera testified he worked his way up from being a soldier to being, at one
point, one of the gang’s higher-ranking lieutenants in charge of an area. As a soldier, Fierro’s
lieutenant was Ricardo Zuniga,6 who was also known as “Nano.” After a warrant was issued for
his arrest, Zuniga moved from El Paso to Juarez. Often taking her children with her, Cera would
cross to Juarez to pick up drugs and deliver the Barrio Azteca box to Zuniga. Eventually, Zuniga
called Fierro and Juan Espino,7 another member, and asked them to go to Juarez to speak with
him. Because he needed help collecting taxes, Zuniga elevated each of their rank to sergeant.
Cera testified she would help Fierro with his new responsibilities which included collecting
taxes from dealers, writing checks for gang members in the prison system, delivery of money to
Zuniga in Juarez, and payment of lawyer fees for members that were incarcerated. On a daily
basis, Cera had contact with other members, who came and went picking up drugs or bringing
6
Ricardo Zuniga (“Nano”) was convicted of engaging in organized criminal activity in the unrelated murder of two
alleged drug dealers who were members of another gang who allegedly failed to pay their cuota to the Barrio Azteca
gang. See Zuniga v. State, No. 08-14-00153-CR, 2016 WL 5121992, at *2 (Tex.App.--El Paso Sept. 21, 2016), rev’d,
PD-0174-17, 2018 WL 2711145 (Tex.Crim.App. June 6, 2018).
7
Juan Espino is a Barrio Azteca member who is known by the street name “Vago.”
4
money to Fierro. Of these members, she described Appellant as being calm and quiet, but others,
she said, were “bossy, obnoxious, [and] real mean,” referring to members Juan Cornejo8 and Eddie
Noriega.9
While Zuniga operated from Juarez, Cera kept going across the border to take him money
and information Fierro received from other members including those who were incarcerated.
Occasionally, information she took included copies of criminal cases which revealed witnesses
who had “snitched” against gang members in legal proceedings. One day, she and Fierro received
information at their home about the trial of her former boyfriend Filo.10 The information left on
her doorstep included a statement she herself had given to authorities. Cera burned the
information. Soon, however, she and Fierro received a sealed envelope, which they opened, that
again included statements of the Filo trial and other items intended for Zuniga. They removed
only her statement, resealed the envelope, then she delivered it in Juarez. When Zuniga read the
information in the envelope references remained about her having accused Filo of a murder in El
Paso. Cera testified that after Zuniga saw the information, he told her she needed to be “checked,”
meaning that Fierro needed to slap her around for having made such a mistake. Although Fierro
never did hit her, she told other members that he actually had.
Sometime later, Fierro went to a party at Zuniga’s house and called her to take them some
beer and cocaine. While she was there, she saw Appellant, Cornejo, Noriega, Espino, Zuniga,
8
Juan Cornejo is a Barrio Azteca member who is known by the street name “Kiddo.”
9
Eddie Noriega is a Barrio Azteca member who is known by the street name “Wicked.”
10
Fidencio Valdez was convicted of capital murder and sentenced to death in Fidencio Valdez v. Texas, AP-77,042,
2018 WL 3046403, at *1 (Tex.Crim.App. June 20, 2018) (not designated for publication).
5
and another member, all talking in a group. She overheard Cornejo say, “Somebody’s going to
die.” She felt nervous and asked Fierro to leave with her, and he did. From that point forward,
Fierro told Zuniga he had an outstanding warrant and could no longer meet him in Juarez, although
he was not telling the truth. Cera continued to go for Fierro.
After Zuniga was arrested, he talked to Fierro about taking over his responsibilities,
referred to as “passing on his muscle shirt,” explaining he would be too restricted while he was
incarcerated. Zuniga then elevated Fierro from sergeant to lieutenant. With new responsibilities,
Fierro, in turn, elevated the rank of Appellant, Cornejo, and Noriega, all of whom were raised to
sergeants. Due to his calm nature, Fierro gave Appellant responsibility for the box.
Cera testified that friction arose between Fierro, her husband, and other gang members.
Fierro, she explained, was an addict, and he began taking heroin without paying for it, and was not
performing his gang responsibilities effectively. Also, Fierro owed money to Zuniga and his
father. To make matters worse, gang members continued to suspect Cera had snitched to
authorities on Filo and later on Zuniga.
A few weeks before the murders occurred, various gang members, including Appellant and
Espino, held a meeting at which Fierro’s rank was “parked,” meaning that Fierro no longer had
the authority to participate in the gang’s activities and no longer had control of the box. Detective
Sanchez testified that local law enforcement working with an FBI task force had many members
of the gang under surveillance at the time. Through their surveillance, authorities learned that
6
both Fierro and Cera had been “green lighted,” which meant that a high-ranking member of the
gang had given orders to execute them.11
The Events of August 22, 2012
Cera testified that Fierro had previously written a letter to a prison capo named Manuel
Tolon Cardoza (“Tolon”), complaining about his situation after the other gang members had
parked his rank and had taken the box away from him. She recalled that on August 22, 2012, the
day of his murder, Fierro received a letter in the mail from Cardoza informing him that he had his
“blessing,” and that he was being given back his rank. According to Cera, Fierro immediately
called Appellant and informed him of the letter, and advised Appellant that he was parking the
rank of various gang members, including Appellant, Espino, Noriega, and Cornejo, and that he
wanted the box returned to him. Cera also recalled that Cornejo spoke with Fierro during this
same phone call, and advised Fierro that they were willing to abide by Tolon’s decision, but asked
Fierro to come meet with them at Noriega’s house to show them the letter. Cera recalled that
Fierro left their house at approximately 5 p.m to attend the meeting, but he asked Renteria to drive
him, as he was not feeling well due to his heroin addiction. 12 Cera described that Fierro was
wearing a gold chain necklace around his neck when he left their house.
At trial, Appellant’s girlfriend, Irma Lara, who had been living with him since 2009,
testified that not only was Appellant a member of Barrio Azteca, she more specifically described
that he was involved in gang activities with Cornejo, Noriega, Espino, and Fierro. Noriega and
11
Among other things, law enforcement had positioned a video camera on a pole outside of Fierro’s house in order
to monitor his activities.
12
The fact that Fierro received a letter in the mail that day, as well as the fact that he later left his house that same
afternoon with Renteria, was confirmed by the surveillance video from the “pole cam” that law enforcement had
directed at Fierro’s house at the time.
7
Cornejo were his closest friends and they frequently came and went from their house. She was
aware that Appellant had been trusted to keep the box that held money that members had collected.
She said that Appellant did not like having the box, he felt pressured. In the days leading up to
the murders, she testified there had been tensions between members. Lara reported that there was
a power struggle occurring within the gang’s membership between Fierro and others, and that
Appellant had aligned himself with Espino, Cornejo, and Noriega, against Fierro.
Lara recalled that on the afternoon of Fierro’s murder, Appellant left the house with
Cornejo and Noriega. As he left, Appellant told Lara that he had a meeting to attend, and that he
was taking a gun with him in case something happened. Lara testified that when Appellant
returned a couple of hours later, he appeared “nervous” and confessed to her that he and the others
had taken Fierro and Renteria to an area in Socorro, Texas, in Espino’s truck, and had killed both
of them. According to Lara, Appellant admitted to her that he and another member named
“Garfield” shot Renteria, while Noriega and Cornejo shot Fierro. She also said Appellant told
her that Fierro had been killed because he and Cera had “turned in Nano [Zuniga],” and that
Renteria had been killed because he was a witness to Fierro’s killing. According to Lara, shortly
after Appellant confessed, he took a shower and then the two of them left for a party.
In addition to their conversation, Lara also testified about interactions she observed
between Appellant and other gang members. She said that most of the time relationships were
friendly except she noticed tension between Cornejo (“Kiddo”) and Fierro (“Chuco”). She spoke
of one argument that escalated when Fierro went up to Cornejo and yanked a chain from his neck
while he was wearing it. In the moment, Cornejo did not react but she saw he was embarrased.
After Fierro’s murder, Lara saw Cornejo wearing a chain and learned from Appellant that Cornejo
8
took it from Fierro’s neck after he died. At trial, Lara identified Cornejo wearing the chain in
images that were taken from a video camera at a McDonald’s on the day of the murders.
In addition to the other witnesses, the deputy medical examiner who performed autopsies
on the victim’s bodies also testified at trial. The medical examiner testified that Fierro and
Renteria both died from multiple gunshot wounds to their heads and bodies. Before the trial
concluded, the defense recalled Detective Sanchez and he testified that Cornejo and Noriega were
separately convicted of the murders of Fierro and Renteria. Noriega pled guilty and a jury
convicted Cornejo after a trial.
Appellant’s Version of Events
At his trial, Appellant admitted he was a long-time member of Barrio Azteca and that on
the day of the murders, he was at Noriega’s house, along with Noriega and Cornjeo, when Fierro
had called to inform them that he had been made a lieutenant again, that he was taking away the
others’ ranks, and that he wanted to call a meeting. Appellant testified that he did not attend the
meeting because he and Lara had plans to go to a party so he left Noriega’s house beforehand.
Data from his cell phone, however, placed him in the general area of the murders later that
afternoon. Nontheless, Appellant claimed that he had left his cell phone at Noriega’s house, as
Noriega and Cornejo were still speaking with Fierro on his phone when he left to return home
The Verdict
Following trial, the jury acquitted Appellant of the capital murder charge, and the engaging
in organized criminal activity charge with respect to the murder of Luis Fierro; however, the jury
found him guilty of engaging in organized criminal activity with respect to the murder of Roberto
Renteria. This appeal followed.
9
I.
ISSUES ONE THROUGH FOUR: THE ADEQUACY OF THE INDICTMENT
AND THE JURY CHARGE
In four issues, Appellant contends that both the indictment that charged him with the
offense of engaging in organized criminal activity, and the jury charge that instructed the jury,
left out an essential element of the offense as defined by the penal code. Appellant was charged
under section 71.02 of the Texas Penal Code titled, “Engaging in Organized Criminal Activity.”
TEX.PENAL CODE ANN. § 71.02 (West Supp. 2017). Penal Code section 71.02(a) provides that:
“[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, the person
commits or conspires to commit one or more of the following:”[.] Id. § 71.02(a). The statute
then lists eighteen subsections detailing predicate offenses such as murder, capital murder, arson,
and others, that give rise to a conviction under the statute. Id. § 71.02(a)(1)-(18). For purposes
of the offense, section 71.01(d) 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) (West 2011). A
“combination,” on the other hand, is defined as: “three or more persons who collaborate in carrying
on criminal activities, although: (1) 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.” Id. §
71.01(a).
To commit an offense, Appellant contends the engaging in criminal activity statute requires
proof that a person acted with the intent to establish, maintain or participate, as a member of a
10
criminal street gang, when committing one of the listed predicate offenses. On appeal, he
contends that nothing in the jury charge informed the jury that to find Appellant guilty of engaging
in organized criminal activity, it had to find beyond a reasonable doubt that he “acted with the
intent to establish, maintain, or participate,” as a member of a criminal street gang.13 Rather, the
indictment and jury charge omitted intent and merely stated that Appellant had committed the
underlying offense of murder “as a member of a criminal street gang.” Appellant contends the
“intent” language is an essential element of the offense, whether a person is charged with
committing a predicate offense under either the “combination” portion, or under the “criminal
street gang” portion of the statute.
The State, on the other hand, contends that the “intent” language only applies to cases in
which a defendant is charged with committing a predicate offense as part of a “combination,” and
does not apply to an offense committed as part of a “criminal street gang.” Under a common-
sense and grammatically correct reading of the statute, the State contends it was not necessary to
allege or prove that Appellant committed the predicate offense “with intent to participate as a
member of a criminal street gang.”14
13
Count Three of the indictment alleged that “on or about the 22nd day of August, 2012 ... [Appellant] did then and
there, as a member of a criminal street gang, to wit: Barrio Azteca, commit the criminal offense of Murder of Roberto
Renteria ...” The jury charge tracked this same language, and defined the offense for the jury as follows: “Our law
provides that a person commits the offense of engaging in organized criminal activity, if as a member of a criminal
street gang he commits or conspires to commit the offense of murder.” Similarly, the application portion of the jury
charge stated that the jury could find Appellant guilty of Count Three in the indictment if it found that Appellant “did
then and there as a member of a criminal street gang, to wit: Barrio Azteca, commit the offense of murder against
Roberto Renteria, acting either alone or with the intent to promote or assist the co-defendants, and solicited,
encouraged, directed, aided or attempted to aid the co-defendants as a member of a criminal street gang, to commit
the murder of Roberto Renteria, as alleged in the indictment ….”
14
The State also argues that even if the “intent” language in the statute was applicable to the charge in Appellant’s
case, he waived his right to raise these issues on appeal due to his failure to object to either the indictment or the jury
charge in the trial court. Because we conclude that there was no error in the indictment or in the jury charge, we find
it unnecessary to address the issue of waiver.
11
The Zuniga Opinion
On point with the issue at hand, the Court of Criminal Appeals recently addressed the
necessary evidentiary requirements of the engaging in criminal activity offense as applied to an
allegation of membership in a criminal street gang. In Zuniga v. State, ___ S.W.3d ___, PD-
0174-17, 2018 WL 2711145, at *4 (Tex.Crim.App. June 6, 2018),15 the State charged a defendant
with two counts of engaging in organized criminal activity under the same penal code section,
section 71.02(a), as was charged in the instant case. In Zuniga, the State charged the defendant
with committing two predicate murders “as a member of a criminal street gang, to wit: Barrio
Azteca.” Zuniga, 2018 WL 2711145, at *1 n.2. On intermediate appeal, the defendant in Zuniga
persuaded this Court that the State was required to allege and prove that he acted with the “intent
to establish, maintain, or participate as a member of [a criminal street gang].” See Zuniga v. State,
2016 WL 5121992, at *13 (Tex.App.--El Paso Sept. 21, 2016), rev’d, PD-0174-17, 2018 WL
2711145 (Tex.Crim.App. June 6, 2018). Thus, we held the “intent” language of the statute
constituted an essential element of the offense, and found that there was insufficient evidence in
the record to establish that the defendant acted with the requisite intent. Id.
The Court of Criminal Appeals, however, disagreed with our statutory interpretation,
noting that we did not have the benefit of its more recent holding in Villa v. State, 514 S.W.3d 227,
232 (Tex.Crim.App. 2017), when we issued our opinion. Zuniga, 2018 WL 2711145, at *4.
Although the Court in Villa did not expressly resolve the issue of intent, in Villa the Court resolved
15
The Court of Criminal Appeals issued Zuniga v. State, ___ S.W.3d ___, PD-0174-17, 2018 WL 2711145
(Tex.Crim.App. June 6, 2018), after the parties submitted their briefs to this Court and after oral argument was held.
The State submitted a Supplemental Letter of Authorities arguing that Zuniga resolved any questions regarding the
adequacy of the indictment and the jury charge of the present case. Appellant did not file a response.
12
a challenge to the sufficiency of the evidence to support a conviction for engaging in organized
criminal activity, and in doing so, held that it was sufficient to establish that the defendant
committed the predicate offense of aggravated assault “as a member of a criminal street gang,”
without any mention of the “intent” language in the statute. Villa, 514 S.W.3d at 232-33.
Thereafter, addressing the issue directly, Zuniga held that its description of the relevant
statutory elements in Villa had signaled the State’s reading of the statute had been correct and our
interpretation in Zuniga was erroneous. Zuniga, 2018 WL 2711145, at *4. As a matter of
grammar and logic, the Court of Criminal Appeals concluded that the “statute’s intent clause
applies only to the phrase that immediately follows it—‘in a combination or in the profits of a
combination’—but not to the subsequent phrase, ‘or as a member of a criminal street gang [.]’”
Id., at *4 (citing TEX. PENAL CODE ANN. § 71.02(a)). The Court therefore found that a defendant
could be properly charged and convicted of committing a predicate offense “as a member of a
criminal street gang,” as that term is defined by the code, without requiring commission of the
underlying crime with the intent to establish, maintain or participate as a member of a criminal
street gang. Id., at *4 (citing Villa, 514 S.W.3d at 232; TEX. PENAL CODE ANN. § 71.02(a)).
And finally, Zuniga “interpret[ed] the word ‘as’ in the phrase ‘as a member of a criminal
street gang’ as requiring proof that the defendant was acting ‘[i]n the role, capacity, or function
of” a gang member at the time of the offense.” Id., at *4 (citing American Heritage College
Dictionary 78 (3d ed. 1993) (defining the word “as”)). To satisfy this requirement, Zuniga held
that the evidence must show some nexus or relationship between the commission of the underlying
offense and the defendant’s gang membership. Id., at *7.
Analysis
13
In light of the holding in Zuniga, we conclude that Appellant was properly charged in the
indictment with committing the predicate offense of the murder of Roberto Renteria, “as a member
of a criminal street gang, to wit: Barrio Azteca[.]” Similarly, we conclude that the jury charge
properly instructed the jury that it could find Appellant guilty if he “did then and there, as a member
of a criminal street gang, to wit: Barrio Azteca,” commit the offense of murder against Roberto
Renteria, as alleged in the indictment. And finally, in accord with the statute, we note that the
jury charge properly defined the term “criminal street gang,” as “three or more persons having
common identifying signs or symbols or an identifiable leadership who continuously or regularly
associate in the commission of criminal activities.” Accordingly, we find the indictment and jury
charge both properly set out the elements of the charged offense of engaging in organized criminal
activity as a member of a street gang.16 Zuniga, 2018 WL 2711145, at *4. Appellant’s Issues
One through Four are overruled.
ISSUE SEVEN: APPELLANT’S FIRST AMENDMENT RIGHTS
WERE NOT VIOLATED
In Issue Seven, Appellant raises a related argument, contending that by interpreting the
Penal Code provision as merely requiring the State to allege and prove that an individual
committed a predicate offense “as a member of a criminal street gang,” this allows the State to
prosecute defendants based solely on their status as gang members. Appellant then argues that an
individual may not be prosecuted and/or punished solely due to his “status” as a gang member,
16
In Issue Two in his brief, Appellant contends that because the jury charge did not adequately define the offense by
leaving out the intent element, it is impossible for this Court to conduct a sufficiency review, thereby entitling him to
a new trial. Because we conclude that the jury charge was accurate, we need not address this issue. We do note,
however, that contrary to Appellant’s belief, even if the jury charge had not been accurate, we would have been able
to review the sufficiency of the evidence under a hypothetically correct jury charge, setting forth the correct elements
of the offense. Zuniga, 2018 WL 2711145, at *3 (recognizing that an appellate court considers the sufficiency of the
evidence under a hypothetically correct jury charge).
14
asserting that doing so would violate his First Amendment right to associate freely with a group
of his own choosing. In support of this argument, Appellant cites a series of United States
Supreme Court cases that afford First Amendment protection to individuals associating with others
holding similar beliefs even when the associated group has a propensity for committing violent
acts. See Aptheker v. Sec’y of State, 378 U.S. 500, 514, 84 S.Ct. 1659, 1668, 12 L.Ed.2d 992
(1964) (concluding that the section of the Subversive Activities Control Act, which made it a
felony for a member of a Communist organization to apply for, use or attempt to use a passport,
was unconstitutional on its face); Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686,
1689, 29 L.Ed.2d 214 (1971) (statute that made it criminal for individuals to assemble on the streets
in such a manner as to “annoy” those passing by was unconstitutional as the “First and Fourteenth
Amendments do not permit a State to make criminal the exercise of the right of assembly simply
because its exercise may be ‘annoying’ to some people”); see also Dawson v. Delaware, 503 U.S.
159, 165-66, 112 S.Ct. 1093, 1097-98, 117 L.Ed.2d 309 (1992) (holding that evidence of a
defendant’s membership in a white racist prison gang, as well as evidence of the gang’s propensity
for violence and racism, was not admissible during the punishment phase of the defendant’s trial,
where his membership was not relevant to the offense for which he had been tried and convicted).
Although the State concedes the point that an individual may not be prosecuted based
solely on his membership in a gang, the State correctly points out that the statute itself does not
support a prosecution on gang membership alone. Instead, as explained in Zuniga, section 71.02
of the Penal Code requires the State to allege and prove not only that a defendant was a member
of a criminal street gang, but that the defendant committed an underlying predicate offense “as a
member of a criminal street gang.” Zuniga, 2018 WL 2711145, at *4. Further, as set forth above,
15
the Court interpreted the phrase “as a member of a criminal street gang,” as requiring the State to
come forward with evidence that the defendant was acting “[i]n the role, capacity, or function of”
a gang member at the time he committed the underlying offense. Therefore, more than mere
membership, the offense requires a nexus or causal relationship between the commission of the
underlying offense and the defendant’s gang membership. Id., at *4, 7. Because there is no
danger that an individual will be prosecuted or convicted based solely on his status as a member
of a gang, we conclude that the prosecution under the statute did not impinge on Appellant’s First
Amendment right to associate or to join groups of his own choosing. 17 Appellant’s Issue Seven
is overruled.
ISSUES FIVE AND NINE: THE SUFFICIENCY OF THE EVIDENCE
In Issues Five and Nine, Appellant contends that the evidence presented at his trial was not
legally sufficient to support the jury’s verdict finding him guilty of engaging in organized criminal
activity. We disagree.
Standard of Review
17
In his reply brief, Appellant argues for the first time that the Penal Code provision defining the crime of engaging
in organized criminal activity is unconstitutional, both on its face and as applied, in violation of the “United States
Supreme Court’s vagueness and overbreadth doctrines.” Rule 38.3 of the Texas Rules of Appellate Procedure
restricts a reply brief to addressing matters raised in the appellee’s brief, and therefore, a reply brief may not be utilized
to present a new issue to the court. In Interest of M.D.G., 527 S.W.3d 299, 302-303 (Tex.App.--El Paso 2017, no
pet.) (citing TEX.R.APP.P. 38.3; Calvillo v. Carrington Mortgage Services, 487 S.W.3d 626, 630 n.2 (Tex.App.--El
Paso 2015, pet. denied)); see also Fox v. City of El Paso, 292 S.W.3d 247, 249 (Tex.App.--El Paso 2009, pet. denied).
We also note that Appellant has failed to specify exactly what terms he believes are undefined or suffer from any
unconstitutional vagueness, and he has therefore failed to adequately brief the issue for our review. TEX.R.APP.P.
38.1 (the brief must contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record); see also Williamson v. Howard, ____ S.W.3d ____, No. 08-13-00309-CV, 2018 WL
636405, at *9 (Tex.App.--El Paso Jan. 31, 2018, no pet.) (finding briefing waiver where appellant failed to adequately
present a clear, concise, and applicable argument with appropriate and applicable authority with citations); Sweed v.
City of El Paso, 195 S.W.3d 784, 786 (Tex.App.--El Paso 2006, no pet.) (finding that appellant’s brief did not comply
with the rules of appellate procedure where his issues were minimally briefed and did not set forth any basis for
reversal of the trial court’s decision). We therefore decline to address this additional attack on the constitutionality
of the statute.
16
In conducting our legal sufficiency review, we examine all of the evidence in the light most
favorable to the verdict in order to determine whether any rational trier of fact could have found
the essential elements of the crime as alleged in the application paragraph of the charge to the jury
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). We do not
reexamine the evidence and impose our own judgment as to whether the evidence establishes guilt
beyond a reasonable doubt, but determine only if the findings by the trier of fact are rational. See
Lyon v. State, 885 S.W.2d 506, 516–17 (Tex.App.--El Paso 1994, pet. ref’d).
The fact finder is the exclusive judge of the credibility of witnesses and of the weight to be
given to their testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008).
Therefore, we do not resolve any conflicts of fact or assign credibility to the witnesses. See id.;
Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839,
843 (Tex.Crim.App. 1991); Belton v. State, 900 S.W.2d 886, 897 (Tex.App.--El Paso 1995, pet.
ref’d). We presume the fact finder resolved any conflicting inferences in favor of the verdict and
defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). On appeal,
the same standard of review is used for both circumstantial and direct evidence cases. Hooper v.
State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007); see also Kuciemba v. State, 310 S.W.3d 460, 462
(Tex.Crim.App. 2010); Powell v. State, 194 S.W.3d 503, 506 (Tex.Crim.App. 2006); Viscaino v.
State, 513 S.W.3d 802, 807 (Tex.App.--El Paso 2017, no pet.).
Analysis
Appellant raises at least three separate arguments in support of his contention that the
evidence was not sufficient to support his conviction, which we review separately.
17
Evidence of Involvement in a Predicate Crime
First, Appellant argues that there was insufficient evidence to demonstrate that he was
involved in the predicate murders, as there was no direct evidence or “eyewitness” testimony
placing him at the scene of the crime. We note, however, that direct evidence of a defendant’s
guilt is not necessary to support a criminal conviction; instead, as the Court of Criminal Appeals
has recognized, “[c]ircumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper,
214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)).
In the present case, the most incriminating evidence came from the testimony of Irma Lara,
who testified that Appellant left their house to attend a “meeting” with other gang members, and
when he returned he nervously told her “[w]e had to kill Chuco [Fierro] and the kid [Renteria].”
Appellant, however, argues that Lara’s testimony did not sufficiently link him to the murders. In
part, Appellant’s argument appears to be based on a response Lara gave at trial in which she stated
that when Appellant returned to their home on the day of the murders, he told her that “him and
Garfield shot Chavalon [Renteria] and then Wicked and Kiddo shot Chuco [Fierro].” Appellant
contends that Lara’s use of “him,” in her response can only be interpreted to mean that Renteria
was shot by Garfield and a third person, i.e., not Appellant. For the following reasons, we are not
persuaded.
First, when ambiguities and/or conflicts arise in testimony, a jury may resolve the
circumanstance in a manner it deems reasonable. Thus, when Lara used the term “him” rather
than “he,” the jury could reasonably conclude that Appellant was referring to himself as he
described the shooting of Renteria; and, on appeal, we must defer to that resolution in conducting
18
our sufficiency review. See, e.g., Smith v. State, 340 S.W.3d 41, 48-49 (Tex.App.--Houston [1st
Dist.] 2011, no pet.) (the jury could have reasonably reconciled an ambiguity in witness’s
testimony in such a way as to support its guilty verdict); see also Queeman v. State, 520 S.W.3d
616, 622 (Tex.Crim.App. 2017) (reviewing court must presume that the jury resolved any such
conflicts in favor of the verdict).
Second, we also note that the jury was instructed that Appellant could have been found
guilty of engaging in organized criminal activity with regard to Renteria’s murder under the law
of parties’ doctrine even if he did not act alone in shooting Renteria. As the charge instructed, if
the evidence demonstrated that he acted with the “intent to promote or assist [his] co-defendants,
and solicited, encouraged, directed, aided or attempted to aid the co-defendants as a member of a
criminal street gang, to commit the murder,” the jury could reach a finding of guilt. The “law of
parties” doctrine is set forth in section 7.02 of the Texas Penal Code, which provides that an
individual may be found criminally responsible for an offense committed by another if, while
acting with the “intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense[.]” See TEX. PENAL CODE
ANN. § 7.02(a)(2) (West 2011); see also TEX. PENAL CODE ANN. § 7.01 (West 2011) (a person is
a criminally responsible party to an offense “if the offense is committed by his own conduct, by
the conduct of another for which he is criminally responsible, or by both”); see also Romero v.
State, No. 08-10-00074-CR, 2012 WL 3834917, at *4 (Tex.App.--El Paso Sept. 5, 2012, pet. ref’d)
(not designated for publication) (discussing law of parties’ doctrine).
Here, Lara’s testimony included Appellant’s admission that he was present at the scene
with other gang members when Fierro and Renteria were shot and killed. Lara testified that
19
Appellant explained they were killed “because Chuco [Fierro] and Vero [Cera] turned in Nano
[Zuniga].” Moreover, Appellant told Lara that Renteria was killed because “[h]e was just there
like a witness, kind of.” As well, the State presented evidence that data from Appellant’s cell
phone placed him at the scene of the murders.
Given the evidence presented, we conclude it was sufficient to allow the jury to reasonably
infer that Appellant was present at the scene of Renteria’s murder, and that he actively participated
in the murder—whether by actually shooting Renteria or by assisting or encouraging others to do
so. See generally Webb v. State, No. 08-11-00126-CR, 2013 WL 1229012, at *5–6 (Tex.App.--
El Paso Mar. 27, 2013, pet. ref’d) (not designated for publication) (despite appellant’s contention
that he did not participate in the predicate offense of aggravated robbery, the circumstantial
evidence was sufficient to allow a jury to infer that appellant, who admitted to being a member of
a criminal street gang, participated with other gang members in committing the predicate offense).
We therefore conclude that the State presented sufficient evidence to link Appellant to the
predicate offense of murder.
The Nexus between the Predicate Offense and Membership in a Street Gang
Appellant also contends that even if the evidence linked him to the murders, there was “no
evidence” to support a finding that Renteria’s murder was committed with the intent to participate
as a member of a criminal street gang, or that his murder had anything to do with gang activities.
As explained above, in accordance with the holding in Zuniga, the State was not required to
establish that Appellant acted with the intent to participate as a member of a criminal street gang.
Zuniga, 2018 WL 2711145, at *4. Nevertheless, the Court in Zuniga did conclude that there must
be a nexus between a defendant’s commission of the predicate offense and his gang membership,
20
or in other words, there must be evidence that the defendant was acting “[i]n the role, capacity, or
function of” a gang member at the time of the offense. Id., at *4, 7. We therefore review the
evidence under that standard.
As set forth above, the undisputed evidence at trial established that Appellant and the other
individuals involved in committing the murders were all members of the Barrio Azteca gang.
Further, Appellant himself testified at trial that the murders resulted from an inner struggle between
Barrio Azteca gang members over control of the gang’s leadership. Appellant described a “rift”
between victim Fierro and two others, Noriega and Cornejo. Moreover, as set forth above, there
was also evidence that Fierro had been “green-lighted” by another high-ranking gang member, i.e.,
designated to be executed, due to the gang’s belief that Fierro and his wife were “snitches,” and
that this was the reason for Fierro’s murder. As well, Lara’s testimony established that Appellant
left the house with two other gang members for a “meeting,” and returned to report that the
execution had in fact been accomplished.
Accordingly, the jury could have reasonably inferred that Appellant accompanied the other
gang members to the scene of the murders, in his capacity as a member of the Barrio Azteca gang,
for the purpose of carrying out the execution orders against Fierro. 18 Accordingly, while
Renteria’s death was an unfortunate result of his decision to accompany Fierro, there was ample
evidence to support a conclusion that the murders of both Fierro and Renteria were in fact gang-
18
In his brief, however, Appellant finds it significant that Fierro was a higher-ranking member of the gang than he
was, and that Fierro’s murder—by a lower-level member—would have violated the Barrio Azteca’s rules; Appellant
asserts that this alleged rule violation somehow established that the murders were not gang-related. Aside from the
fact that the evidence indicated that an even higher-ranking gang member had ordered Fierro’s execution, we fail to
understand how a murder of this nature, i.e., a murder resulting from what Appellant himself described as a “rift”
within the gang’s membership, could not be considered gang-related—whether it was authorized by the gang’s rules
or not.
21
related. We therefore conclude that there was a sufficient nexus between the predicate murder
and Appellant’s gang membership to sustain his conviction for the charge of engaging in organized
criminal activity.
Direct Evidence of Motive not Required
And finally, Appellant contends that although there was evidence that the Barrio Azteca
gang may have had a motive to murder Fierro, there was no evidence that Appellant himself had
a personal “motive” or had a “bone to pick” with Fierro. Although a motive can be relevant as
circumstantial evidence tending to prove guilt, we note the existence of a “motive” is not an
element of the offense of murder, and therefore, the State need not present direct evidence of
motive to sustain a conviction. See generally Clayton v. State, 235 S.W.3d 772, 781
(Tex.Crim.App. 2007) (recognizing that although motive is not an element of murder, it may be a
circumstance that is indicative of guilt); see also Bush v. State, 628 S.W.2d 441, 444
(Tex.Crim.App. 1982); Molina v. State, No. 08-07-00242-CR, 2009 WL 2623364, at *3
(Tex.App.--El Paso Aug. 26, 2009, no pet.) (not designated for publication).
Moreover, in Zuniga, the Court of Criminal Appeals expressly held that in prosecutions for
engaging in organized criminal activity, the State need not provide direct or affirmative evidence
that a defendant’s “motive” for committing and/or participating in a predicate offense was gang-
related, “as opposed to some other reason independent of his gang membership.” Zuniga, 2018
WL 2711145, at *7. In other words, the statute does not “require proof of the gang member’s
particular motivation for committing an offense.” Id. Instead, as set forth above, the Court held
that the statute only requires proof that the defendant engaged in the underlying offense “as a
member of a criminal street gang,” in the sense that he was acting pursuant to his role or capacity
22
as a gang member at the time that he committed the offense. Id. (citing TEX. PENAL CODE ANN.
§ 71.02(a)).
As set forth above, the evidence was sufficient to support a finding that Appellant was
acting in his capacity as a gang member at the time he committed the predicate offense of
Renteria’s murder. Accordingly, we conclude that the evidence was sufficient to support
Appellant’s conviction for engaging in organized criminal activity. See id., at *4. Appellant’s
Issues Five and Nine are overruled.
ISSUE SIX: THE JURY QUESTIONS
In Issue Six, Appellant contends that the trial court failed to follow the proper statutory
procedures set forth in the Texas Code of Criminal Procedure for responding to a set of questions
the jury sent to the trial court during its deliberations in which it asked to have certain testimony
read back to it. The State, on the other hand, contends that Appellant failed to preserve this issue
for our review by failing to object to the procedure used by the trial court in response to the jury’s
questions, and by instead actually consenting to it. The State further contends that even if
Appellant did not waive his right to raise this issue, the procedure followed by the trial court did
not constitute reversible error. Appellant, however, contends that he did not “expressly
relinquish” his right to have the proper procedure followed by failing to object, and further asserts
that the procedure followed by the trial court caused substantial harm to his case, and therefore,
constituted reversible error “because the jury never got answers to [its] questions[.]” We agree
with the State on this issue.
The Jury’s Questions
23
On the afternoon of the first day of its deliberations, the jury sent a note to the trial court
in which it requested a “transcription” of two days of trial testimony, and in particular, requested
the testimony of Appellant, Lara, and Cera. The trial court sent a written response to the jury that
same day, advising it of the proper procedure to be followed in order to have specific testimony
read back to them, as follows:
The Court cannot have the court reporter read back the testimony of the
witnesses you have requested. To request that testimony be read back to you, you
must follow these rules: The court will allow testimony to be read back to the jury
only if the jury, in a writing signed by the foreperson, (1) states that it is requesting
that testimony be read back, (2) states that it has a disagreement about a specific
statement of a witness or a particular point in dispute, and (3) identifies the name
of the witness who made the statement. The court will then have the court reporter
read back only that part of the statement that is in disagreement.19
The next morning at 9:45 a.m., the jury sent a written communication to the trial court
indicating that the jurors had various disputes regarding the testimony of several witnesses, and
had questions primarily relating to when the witnesses reported that certain events occurred. 20
The jury also asked a general question regarding Lara’s testimony pertaining to the statements that
Appellant made to her on the day of the murders.
In response, the trial court called a hearing on the record with both attorneys present, and
advised them that the jury had sent out a number of questions “on disputes in the testimony.”
After ascertaining that both attorneys had been given an opportunity to “study those question[s],”
19
Appellant did not object to this note in the trial court, and on appeal, he does not appear to have any issue with the
manner in which the trial court responded to the first note sent by the jury.
20
Among other things, the jury had questions about what time Fierro reportedly received the letter from Tolon; what
time Cera said that Fierro called Appellant; what time Cera said she saw Fierro leave the house with Renteria; what
time Lara said Appellant received the phone call from Fierro; what time Lara said Appellant left the house to meet
with the other gang members, and what time he returned home; what time Lara said she and Appellant left for the
party; what time the victims’ bodies were found; the date on which Appellant was arrested; and the date on which
Lara gave her statement to the police.
24
the trial court suggested that rather than having to “go through a long string of read backs” of the
disputed testimony, the attorneys could instead “go through those questions and then argue their
side of that way” they believed the questions should be answered. Both attorneys expressly
agreed to that procedure on the record, and the trial court gave them each 15 minutes to address
the jury’s questions. During his 15 minutes, defense counsel addressed various timing issues, and
also took the opportunity to essentially reargue the case and to attack the strength of the State’s
evidence. The State, on the other hand, spent most of its time reiterating its theory of guilt, and
eventually addressed the timeline of when the events in question occurred. The jury did not
indicate that it was dissatisfied with this procedure or that it had any additional questions, and
thereafter returned to its deliberations. Later that same day, the jury sent a note indicating that it
had come to a verdict.
Applicable Law
There are two provisions in the Texas Code of Criminal Procedure that set forth the
procedures to be used when a jury in a criminal case has a question for the trial court. First,
Article 36.27 of the Code provides that upon receiving a written communication from the jury, the
trial court must first use reasonable diligence to secure the presence of the defendant and his
counsel to provide them with the jury’s questions, as well as the trial court’s proposed answer to
the jury, to allow for any objections or exceptions. See TEX.CODE CRIM.PROC.ANN. art. 36.27
(West 2006); see also Edwards v. State 558 S.W.2d 452, 454 (Tex.Crim.App. 1977) (the purpose
of Article 36.27 is to afford a defendant and his attorney an opportunity to examine the questions
and to urge objections, if any, to the additional instructions or answers to be given to the jury).
The Code further provides that the trial court shall thereafter provide its answer to the jury in
25
writing and read the answer in open court unless expressly waived by the defendant. TEX.CODE
CRIM.PROC.ANN. art. 36.27.
Article 36.28 provides a more specific procedure to be used when the jury has a
disagreement over the testimony given by a witness. TEX.CODE CRIM.PROC.ANN. art. 36.28
(West 2006). In that instance, the trial court may direct the jury to advise it of the exact nature of
its disagreement, so that the trial court will know what testimony is in dispute, and can have that
portion of the testimony read back to the jury from the court reporter’s notes.21 Id. art. 36.28; see
also Howell v. State, 175 S.W.3d 786, 792 (Tex.Crim.App. 2005) (trial judge properly required
the jury to specify the nature of its dispute over a witness’s testimony, and to specify what
testimony it wanted read back); Moore v. State, 874 S.W.2d 671, 673 (Tex.Crim.App. 1994)
(recognizing that jury must indicate its disagreement as to the statement of a witness in order to
have the testimony in dispute read to the jury). This statute “seeks to balance the concern that the
trial court not comment on the evidence with the need to provide the jury with the means to resolve
any factual disputes it may have.” Balderas v. State, 517 S.W.3d 756, 797 (Tex.Crim.App. 2016),
cert. denied, 137 S.Ct. 1207 (2017) (citing Howell v. State, 175 S.W.3d 786, 790 (Tex.Crim.App.
2005)); see also Thomas v. State, 505 S.W.3d 916, 923 (Tex.Crim.App. 2016).
When a jury asks that certain testimony be re-read, the judge must first determine if the
request is proper under Article 36.28. Balderas, 517 S.W.3d at 797 (citing Howell, 175 S.W.3d
at 790). After making a determination, the trial court must then interpret the communication;
21
In the alternative, the Code provides that if the court reporter’s notes of a witness’s testimony are not available, the
trial judge “may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his
testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial.” TEX.CODE
CRIM.PROC.ANN. art. 36.28.
26
decide in its discretion what sections of the testimony will best answer the jury’s query; and limit
the testimony to be read back to the jury accordingly. Id. at 798 (citing Iness v. State, 606 S.W.2d
306, 314 (Tex.Crim.App. 1980)); see also Thomas, 505 S.W.3d at 923. An appellate court
reviews a trial court’s determination of whether a sufficient factual dispute exists between jurors
to justify a read-back of testimony for an abuse of discretion. See Balderas, 517 S.W.3d at 798;
Robison v. State, 888 S.W.2d 473, 480 (Tex.Crim.App. 1994). If the trial court determines that
there is no testimony responsive to the jury’s request, it is not an abuse of discretion to decline to
read back a witness’s testimony. Balderas, 517 S.W.3d at 799 (trial court did not abuse its
discretion in refusing to read back a portion of a police detective’s testimony where it determined
that it was not responsive to the jury’s questions). A trial court, however, should not exclude
testimony that is directly related to the issue in dispute. Horton v. State, 530 S.W.3d 717, 722
(Tex.App.--Fort Worth 2017, pet. ref’d); see also Jones v. State, 706 S.W.2d 664, 668
(Tex.Crim.App. 1986) (holding that the trial court abused its discretion by failing to have cross-
examination testimony related to the disputed issue read to the jury).
Analysis
In the present case, the trial court initially followed the proper procedures set forth in the
Code of Criminal Procedure by requiring the jury to specify the disagreements it had with regard
to the testimony, so that it could identify the relevant portions of the disputed testimony to be read
back. In addition, the trial court properly called a hearing with both attorneys present to allow
them to review the jury’s communication and questions. Where the trial court deviated from the
procedures set forth in the Code is by suggesting that the attorneys provide argument to the jury
as a means of answering their questions in lieu of reading the disputed testimony back to them.
27
Although we recognize that the trial court’s failure to read back disputed portions of witness
testimony upon a proper request by the jury is generally considered to be an abuse of discretion,
because trial counsel acquiesced in this procedure, we must determine whether Appellant waived
his right to raise the issue on appeal.
The Requirement of a Contemporaneous Objection
In general, as a prerequisite to presenting a complaint for appellate review, the record must
demonstrate that the party made its complaint to the trial court by a timely request, objection, or
motion, and that he did so as soon as he became aware of the error. TEX.R.APP.P. 33.1; see
Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App. 1991). The purpose of requiring a timely
objection in the trial court is to give the trial court an opportunity to cure its error. Hollins, 805
S.W.2d at 476 (citing Anderson v. State, 633 S.W.2d 851 (Tex.Crim.App. 1982)). A trial court’s
failure to follow the correct procedures under the Code of Criminal Procedure in responding to a
jury’s communication is an easily rectifiable or curable error, and therefore it is incumbent upon
the defendant to come forth with a timely objection to the trial court’s failure to follow those
procedures. See, e.g., Smith v. State, 513 S.W.2d 823, 829 (Tex.Crim.App. 1974) (citing Smith v.
State, 474 S.W.2d 486 (Tex.Crim.App. 1972); Lipscomb v. State, 467 S.W.2d 417 (Tex.Crim.App.
1971); Verret v. State, 470 S.W.2d 883 (Tex.Crim.App. 1971); Rodriquez v. State, 500 S.W.2d
517 (Tex.Crim.App. 1973); Hancock v. State, 120 Tex.Crim. 162, 47 S.W.2d 299 (1932);
McClellan v. State, 118 Tex.Crim. 473, 40 S.W.2d 87 (1931)). If a defendant fails to make a
timely objection to a trial court’s failure to follow the correct procedures in responding to a jury’s
communication, the error will not be preserved for appellate review. Id; see also Hollins, 805
S.W.2d at 476 (citing Casiano v. State, 495 S.W.2d 232 (Tex.Crim.App. 1973); Swindell v. State,
28
491 S.W.2d 400 (Tex.Crim.App. 1973); Martin v. State, 459 S.W.2d 845 (Tex.Crim.App. 1970);
Maldonado v. State, 425 S.W.2d 646 (Tex.Crim.App. 1968)); Thomas v. State, 624 S.W.2d 296,
297 (Tex.App.--Dallas 1981, no pet.) (where record reflected that no objection was made to the
trial court’s failure to follow Article 36.28 in responding to a jury’s communication, appellant did
not preserve error for appellate court’s review).
Analysis
Here, Appellant admittedly failed to object to the trial court’s procedure in responding to
the jury’s questions, but nonetheless contends that we should consider this issue on appeal, because
he did not “expressly” relinquish his right to have the procedures followed and because he contends
the trial court’s failure to follow the procedure caused him substantial harm. As the State correctly
points out, in determining whether an appellate court may consider an issue not raised in the trial
court, we must first determine the category into which the alleged error falls. In Marin, the Court
of Criminal Appeals recognized three distinct categories of rights of a defendant: “(1) absolute
requirements and prohibitions; (2) rights of litigants which must be implemented by the system
unless expressly waived; and (3) rights of litigants which are to be implemented upon request.”
See Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993). Appellant appears to believe
that the trial court’s failure to follow the correct procedures under the Code falls into the second
category of rights, asserting that he never “expressly relinquish[]” his rights under the applicable
Code provisions. There are several problems with this argument.
First, Appellant not only failed to object to the trial court’s procedures, he acquiesced in
the very procedures that he now seeks to challenge. As such, even if we were to consider that the
right to have the disputed testimony read back to the jury fell within the second category of rights,
29
we would consider Appellant’s agreement with the trial court’s decision to follow a different
procedure to have been an express relinquishment or waiver of the right. See generally Heller v.
State, 279 S.W.3d 823, 825 (Tex.App.--Amarillo 2008, no pet.) (where defendant agreed to trial
court’s planned course of action in responding to jury note, appellant’s issue claiming that this
procedure was in error presented nothing for the court’s review); Revell v. State, 885 S.W.2d 206,
211-12 (Tex.App.--Dallas 1994, pet. ref’d) (holding that because the defendant did not object to
the trial court’s oral communication with the jury, and instead encouraged the trial court to so
communicate orally, he waived any error regarding any violation of Article 36.27 that he partially
induced).
Second, as the State points out, virtually every court considering the issue after Marin was
decided has concluded that a defendant is required to make a timely objection to a trial court’s
failure to follow the statutory procedures in responding to a jury question, thereby suggesting that
the right to have testimony read back to the jury falls within the third category of rights that must
be implemented upon request. See, e.g., Thomas v. State, 505 S.W.3d 916, 924 (Tex.Crim.App.
2016) (recognizing that a defendant must preserve error by making a timely objection to the
manner in which the trial court responds to a jury’s request to read back testimony); Word v. State,
206 S.W.3d 646, 652 (Tex.Crim.App. 2006) (noting its agreement with the long-standing rule that
a defendant must preserve error by making a timely objection to the trial court’s failure to follow
the correct statutory procedures in responding to a jury communication); see also Carr v. State,
No. 05-02-01747-CR, 2003 WL 22456355, at *1 (Tex.App.--Dallas, Oct. 30, 2003, pet. ref’d)
(mem. op.) (not designated for publication) (recognizing that a defendant must object to deviations
from article 36.27 in order to preserve any complaint for appellate review); Boatwright v. State,
30
933 S.W.2d 309, 310–11 (Tex.App.--Houston [14th Dist.] 1996, no pet.) (holding that appellant
failed to properly preserve asserted error with regard to the trial court’s alleged noncompliance
with Articles 36.27 and 36.28, where appellant failed to either object or file a formal bill of
exception once he learned of the noncompliance); see generally Marin, 851 S.W.2d at 278-79
(noting that the vast majority of evidentiary and procedural rules and rights fall under the third
category, such that they must be implemented only upon the defendant’s request or objection).
Accordingly, we conclude that by failing to object to the trial court’s failure to follow the
statutory procedures in responding to the jury’s questions, and by instead acquiescing in its
decision to deviate from those procedures, Appellant failed to preserve his right to complain about
this issue on appeal. Appellant’s Issue Six is overruled.
ISSUE EIGHT: THE SPOUSAL PRIVILEGE ISSUE
In Issue Eight, Appellant contends that the trial court erred when it ruled that Irma Lara
was not Appellant’s common-law wife, and that the spousal privilege did not bar her from being
called as a witness by the State to testify against him at trial. Appellant further contends that the
trial court should have submitted the question of whether a common-law marriage existed to the
jury, and that it erred by failing to do so. The State counters that the record contains conflicting
evidence on the issue of whether Lara and Appellant were in a common-law marriage, and that the
trial court therefore did not abuse its discretion in finding the spousal privilege did not apply. The
State further contends that this was an issue for the trial court to decide and not for the jury.
Applicable Law
The spouse of an accused in a criminal case has a privilege not to be called as a witness for
the State, but may testify at an accused’s trial voluntarily. TEX.R.EVID. 504(b)(1); see also Jasper
31
v. State, 61 S.W.3d 413, 418 (Tex.Crim.App. 2001); Colburn v. State, 966 S.W.2d 511, 514
(Tex.Crim.App. 1998). In the absence of a formal, ceremonial marriage, the party asserting the
privilege must prove the existence of an informal or common-law marriage at the relevant time
period, i.e., the time of any communications related to the crime, and must do so by a
preponderance of the evidence. Colburn, 966 S.W.2d at 514 (citing Welch v. State, 908 S.W.2d
258, 264–265 (Tex.App.--El Paso 1995, no pet.)); see also Douglas v. State, 489 S.W.3d 613, 628
(Tex.App.--Texarkana 2016, no pet.); Hightower v. State, 629 S.W.2d 920, 924 (Tex.Crim.App.
1981). The existence of an informal marriage may be proven in a judicial proceeding in one of
two ways. Jasper, 61 S.W.3d at 419. First, there can be a showing that a written declaration of
marriage has been signed by the parties. Id. If there is no signed declaration, there must be
evidence that (1) the couple agreed to be married, (2) then lived together in Texas as husband and
wife, (3) while representing to others that they were married. Id. (citing TEX.FAM.CODE ANN. §
2.401(a)(1)(2) (Vernon 1998)); see also In Interest of C.M.V., 479 S.W.3d 352, 359–60 (Tex.App.-
-El Paso 2015, no pet.); Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993); Tompkins v. State,
774 S.W.2d 195, 208 (Tex.Crim.App. 1987). All three elements must be present in order to
establish the existence of a common-law marriage. C.M.V., 479 S.W.3d at 360 (citing Burden v.
Burden, 420 S.W.3d 305, 308 (Tex.App.--Texarkana 2013, no pet.); Eris v. Phares, 39 S.W.3d
708, 714 (Tex.App.--Houston [1st Dist.] 2001, pet. denied)).
To establish that the parties agreed to be in a common-law marriage, the party asserting the
privilege has the burden of proving that the couple intended to create an immediate and permanent
marriage relationship, not merely a temporary cohabitation that could be ended by either party.
C.M.V., 479 S.W.3d at 360. Further, the agreement must have been to be “presently” married,
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not to marry sometime in the future. Colburn, 966 S.W.2d at 515. The agreement to be married
may be established by either direct or circumstantial evidence, but the agreement cannot be
inferred from the mere evidence of cohabitation and representations of marriage to others. Id.
The testimony of one of the parties to a purported informal marriage that such an agreement exists
constitutes some direct evidence that the parties agreed to be married. See Small v. McMaster,
352 S.W.3d 280, 283 (Tex.App.--Houston [14th Dist.] 2011, pet. denied).
To satisfy the requirement that the couple represented to others that they were married,
there must be evidence that the couple had a reputation in the community for being married. Id.
at 284–85 (citing Eris, 39 S.W.3d at 715). Proving a reputation for being married requires
evidence that the couple “consistently conducted themselves as husband and wife in the public eye
or that the community viewed them as married.” Id. at 285. Occasional references to each other
as husband and wife are not sufficient to establish this requirement. Id.; see also Lee v. Lee, 981
S.W.2d 903, 907 (Tex.App.--Houston [1st Dist.] 1998, no pet.) (occasional introductions as
husband and wife are not sufficient to establish the element of holding out); Ex parte Threet, 160
Tex. 482, 333 S.W.2d 361, 364 (1960) (evidence that couple was introduced as husband and wife
to a few friends was no evidence that they held themselves out as married). Further, conclusory
testimony that a common-law marriage existed or that the parties held themselves out as married
is not sufficient by itself. Tompkins, 774 S.W.2d at 209.
Standard of Review
In reviewing the trial court’s ruling on whether a spousal privilege exists, as with other
questions concerning the admissibility of evidence, we apply an abuse of discretion standard. See
Colburn, 966 S.W.2d at 514 (citing TEX.R.CRIM.EVID. 104(a); see also McVickers v. State, 874
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S.W.2d 662, 664 (Tex.Crim.App. 1993)). The trial court is afforded broad discretion in the
determination of such questions, and its ruling will not be reversed absent an abuse of discretion.
Welch v. State, 908 S.W.2d 258, 264–65 (Tex.App.--El Paso 1995, no pet.) (citing McVickers, 874
S.W.2d at 664; Werner, 711 S.W.2d at 643); see also Carmona v. State, 947 S.W.2d 661, 664
(Tex.App.--Austin 1997, no pet.) (appellate court reviews the denial of husband-wife privilege for
an abuse of discretion). An abuse of discretion occurs when the trial court’s decision is so clearly
wrong as to lie outside the zone of reasonable disagreement. See Zuliani v. State, 97 S.W.3d 589,
595 (Tex.Crim.App. 2003). Further, as recognized by the Court of Criminal Appeals, when a trial
court’s decision denying a claim of spousal privilege centers on its evaluation of the witnesses’
credibility and demeanor, appellate courts should afford almost total deference to the trial court’s
finding of fact and view the evidence in the light most favorable to the trial court’s ruling. Jasper,
61 S.W.3d at 419. However, to the extent that the trial court’s decision did not turn on an
evaluation of credibility and demeanor, then an appellate court may review the trial court’s
decision de novo. Id.
The Evidence
Prior to trial, Irma Lara filed a motion contending she was Appellant’s common-law wife,
and asserting the spousal privilege barred her from testifying against him at trial. In support of
her motion, Lara attached an affidavit asserting that she had lived with Appellant since November
of 2008, until the date of his arrest, and that she had “told everybody [that she and Appellant] were
married to each other.”
The trial court held a hearing on the motion, at which Lara testified that she and Appellant
had been living together on a nearly-continuous basis since November of 2008. She also testified
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that she and Appellant had an “agreement” that they were married during that time, and in her
mind, they were in a “common-law” marriage. As well, Lara testified that the two of them
represented to others that they were married. As an example, Lara testified that the two of them
purchased property together, including a vehicle, as husband and wife, and that they were on a
lease together as husband and wife. However, Lara was unable to produce any documentary
evidence of the vehicle purchase or the lease. The only other witness to testify at the hearing in
favor of the privilege was Jennifer Robledo, the common-law wife of Lara’s brother, who testified
that Lara had told her that Appellant was her husband.
In contrast, the State presented evidence that both Appellant and Lara had identified
themselves as being “single” on various applications to receive government benefits during the
period in which they cohabitated. In addition, the State introduced into evidence a statement that
Lara gave to police after the murders occurred, in which she identified Appellant as her
“boyfriend” and that they had been “dating” during the years prior to the offense. The State also
questioned Lara about testimony she provided in another criminal proceeding in which she
similarly described Appellant as her “boyfriend.”
As well, the State presented a series of booking records in which Appellant identified
himself as being single during the relevant time period, and one in which he identified Lara as his
“girlfriend.” The State also presented a booking record from 1992, after Appellant was arrested
on an unrelated offense, in which he identified another woman, Veronica Flores, as being his
“common-law wife.” The State argued that this demonstrated that Appellant understood the
concept of common-law marriages, pointing out that he could have, but did not, similarly list Lara
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as being his common-law wife. As well, the State argued that there was no evidence presented
that Appellant and Flores had ever gotten divorced. 22
Following the hearing, the trial court noted that the parties had come forward with
conflicting evidence on the question of whether Appellant and Lara were in a common-law
marriage. However, the trial court concluded that the evidence presented was not sufficient to
establish the existence of a common-law marriage, and that the spousal privilege therefore did not
apply to bar the State from calling Lara as a witness.
Analysis
Viewing the evidence in the light most favorable to the trial court’s ruling, we cannot
conclude that the court abused its discretion in reaching the decision that a common-law marriage
did not exist. As the trial court recognized, although Lara did present some evidence at the
hearing that she and Appellant had an agreement to be married and that they held themselves out
to at least one family member as being married, there was no evidence that they did so on a regular
basis or in a public manner, and Lara’s testimony was conclusory at best. Moreover, the State
presented evidence that Lara had repeatedly referred to Appellant as her “boyfriend” in public
documents, and that Appellant had similarly referred to Lara as his “girlfriend.”23 Therefore, the
trial court had the discretion to disbelieve Lara’s testimony that the couple had an agreement to be
married and/or that they held each other out as such, and to therefore decide against the existence
22
The State also presented evidence, including transcripts of recordings of jail phone calls that Appellant had with
his mother, in which he told his mother that his trial attorney intended to claim that Lara was his common-law wife
so that she could not be compelled to testify against him.
23
The State also points out that at trial, Appellant himself referred to Lara as his girlfriend, before catching himself
and calling her his wife in the following statement: “I was staying at the house. Me and my girlfriend, Irma – my
wife – we were getting ready to go to a party.”
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of a common-law marriage. See, e.g., Jasper, 61 S.W.3d at 419-420 (trial court had the discretion
to disbelieve the testimony that the defendant was in a common-law marriage with a witness, where
the State presented evidence that the defendant had referred to the witness as his girlfriend in the
past).
And finally, Appellant argues, without citation to authority, that the trial court was required
to present the question of whether he and Lara were in a common-law marriage to the jury, and
that the trial court “usurped the role of the jury in making this decision[.]” We note, however,
that the Texas Rules of Evidence provide that a trial court “must decide any preliminary question
about whether a witness is qualified, a privilege exists, or evidence is admissible.” TEX.R.EVID
104; McDuffie v. State, 854 S.W.2d 195, 212–13 (Tex.App.--Beaumont 1993, pet. ref’d) (noting
that the rules of evidence provide that a trial court shall determine preliminary questions regarding
the existence of a privilege) (citing Casillas v. State, 733 S.W.2d 158, 168 (Tex.Crim.App. 1986));
see also Davis v. State, No. 12-05-00184-CR, 2006 WL 1791654, at *3 (Tex.App.--Tyler June 30,
2006, no pet.) (mem. op.) (not designated for publication) (recognizing that Rule 104(a) provides
that preliminary questions regarding the existence of a privilege are determined by the trial court);
see also Colburn, 966 S.W.2d at 515 (upholding trial court’s decision that the defendant was not
in a common-law marriage and that the spousal privilege therefore did not apply). Therefore, the
question of whether Lara could assert the marital privilege was a preliminary matter for
determination by the trial court, and not the jury.
Finally, we additionally note, Appellant never requested that the question be submitted to
the jury, and to the contrary, his attorney argued that the existence of the spousal privilege was to
be determined by the trial court and expressly requested that the trial court rule on Lara’s motion.
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Accordingly, we conclude that Appellant waived his right to raise error on this issue on appeal.
See Barnes v. State, No. 04-13-00346-CR, 2014 WL 6979529, at *7 (Tex.App.--San Antonio Dec.
10, 2014, pet. ref’d) (citing Aguilar v. State, 715 S.W.2d 645, 647 (Tex.Crim.App. 1986) (the right
to have the issue of the existence of a common-law marriage submitted to the jury “may be waived
if such an instruction is not requested”)); see also Hightower v. State, 629 S.W.2d 920, 924
(Tex.Crim.App. 1981) (finding that appellant’s failure to complain that the issue of a common-
law marriage was not submitted to the jury, or to request that it be submitted, waived the error he
now seeks to present on appeal). Appellant’s Issue Eight is overruled.
II.
In response to our order dated August 17, 2016, the trial court certified Appellant’s right
to appeal in this case, but the certification does not bear Appellant’s signature indicating that he
was informed of his rights to appeal and to file a pro se petition for discretionary review with the
Texas Court of Criminal Appeals. See TEX.R.APP.P. 25.2(d). The certification is defective, and
has not been corrected by Appellant’s attorney, or the trial court. To remedy this defect, this
Court ORDERS Appellant’s attorney, pursuant to TEX.R.APP.P. 48.4, to send Appellant a copy of
this opinion and this Court’s judgment, to notify Appellant of his right to file a pro se petition for
discretionary review, and to inform Appellant of the applicable deadlines. See TEX.R.APP.P.
48.4, 68. Appellant’s attorney is further ORDERED, to comply with all of the requirements of
TEX.R.APP.P. 48.4.
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CONCLUSION
We affirm.
GINA M. PALAFOX, Justice
July 11, 2018
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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