In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00474-CR
___________________________
ROSALINO CASTRO, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1554677R
Dissenting and Concurring Memorandum Opinion by Chief Justice Sudderth
DISSENTING AND CONCURRING MEMORANDUM OPINION
I write separately to respectfully dissent from the majority’s resolution of
Castro’s second point because the evidence is insufficient to establish that Castro stole
the truck as part of his membership in the East Side Latin Kings. Because I would
sustain Castro’s second point and hold that the evidence is insufficient to support the
conviction for engaging in organized criminal activity (EOCA), I would reverse the
trial court’s EOCA conviction and render a judgment of acquittal on the charge of
EOCA. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19, 24–25, 98
S. Ct. 2151, 2154–55 (1978); Burks v. United States, 437 U.S. 1, 16–18, 98 S. Ct. 2141,
2150–51 (1978); Winfrey v. State, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013).
An EOCA conviction requires evidence of a “nexus or relationship between
the commission of the underlying offense and the defendant’s gang membership.”
Zuniga v. State, 551 S.W.3d 729, 739 (Tex. Crim. App. 2018). And although evidence
establishing the required nexus between gang membership and the underlying offense
is often circumstantial, the evidence must rise to more than mere speculation. See, e.g.,
id.; Villa v. State, 514 S.W.3d 227, 228 (Tex. Crim. App. 2017). Reaching a guilty
verdict here required speculation.
In the cases cited by the majority, and in many of the cases addressing this
issue, the nexus between the commission of the offense and the gang membership is
established by the involvement or presence of other gang members at the scene of the
2
crime or by an overt reference to gang affiliation at or near the time the offense was
committed. No such evidence appears in this record.
For example, in Zuniga, testimony established that Barrio Azteca gang member
Zuniga, with the help of other Azteca members, engaged in a fight against two
members of a rival street gang outside a bar known as an Azteca “hang-out” and
located within the Azteca’s self-proclaimed “turf” for high-level drug trafficking.
551 S.W.3d at 737–38. During the fight, two men were murdered by the Aztecas. Id.
Circumstantial evidence established two possible motives for the murders—an officer
testified that the decedents’ gang would have been required to pay fees to the Aztecas
for “the privilege of doing business” in the area, and he testified that it would be
consistent for Azteca members to assault rival gang members who encroached upon
their territory or failed to pay a fee. Id. at 738. Relying upon these facts, the court of
criminal appeals held that the jury could have reasonably drawn an inference that the
“coordinated assault” was gang-related activity and connected to the defendant’s
“role, capacity, or function” as a member of the Aztecas. Id.
The Villa case also involved the Barrio Azteca gang. 514 S.W.3d at 228. In it,
a former member of the Aztecas was beaten by several other Aztecas after the former
member participated in a documentary series about street gangs. Id. Presumably as a
result of the interview, the gang placed a “green light” or “hit” on the complainant,
meaning that “gang members who saw him would do what they could to hurt him,
including killing him on sight.” Id. At trial, the complainant testified that several of
3
the people who attacked him were members of the Azteca gang but did not so
identify Villa. Id. The court of criminal appeals rejected Villa’s argument on appeal
that the evidence was insufficient to support the conviction for EOCA because the
complainant did not specifically identify Villa as an Azteca. In reaching its conclusion,
the court pointed to other evidence of Villa’s gang affiliation and the gang-related
motivation for the attack, all of which added “further support for the jury’s
conclusion that [Villa] was a gang member.” Id. at 233.1
Last, the majority cites the Hunsaker case from our court. Hunsaker v. State,
No. 02-16-331-CR, 2017 WL 4053897 (Tex. App.—Fort Worth Sept. 14, 2017, pet.
ref’d) (per curiam) (mem. op., not designated for publication). In that case Hunsaker,
a member of the Aryan Brotherhood of Texas (ABT), attended a house party with
other ABT members. Id. at *1. During the party, after one ABT member grew
“[e]nraged” that a member of the Aryan Circle (a different Aryan gang) was also at the
party, the partygoers were instructed to hand over their cell phones. Id. After
Hunsaker and the others complied, another ABT member announced, “Shit’s about
to get done ABT style.” Id. Hunsaker and other ABT members then took the victim
into the garage, where the victim was beaten and killed. Id. Hunsaker was acquitted
1
The Villa case is the only one cited and discussed by the State addressing this
point. In its brief, the State appears to argue that the court of criminal appeals held in
Villa that it need only establish a defendant’s gang membership in order to connect
that membership to the underlying crime. But this is not so. Rather, the court noted
that “the jury had evidence that the attack . . . was a gang-motivated crime” before it
addressed Villa’s issue on appeal, which was limited to an attack on the sufficiency of
evidence establishing his membership in the gang. Id. at 230, 233.
4
of murder but convicted of EOCA. Id. at *2. This court upheld the conviction and
overruled his complaint on appeal that Hunsaker’s presence alone during the beating
and murder was insufficient to support the conviction for EOCA. Id. at *3.
These and other cases demonstrate that evidence of direct involvement by
other gang members is a common thread in upholding the sufficiency of the evidence
to support an EOCA conviction. Zuniga, 551 S.W.3d at 737–38 (holding evidence
sufficient where group of Barrio Aztecas murdered two people); Villa, 514 S.W.3d at
228 (holding evidence sufficient where group of Barrio Aztecas assaulted former
member); Hunsaker, 2017 WL 4053897 at *1–2 (holding evidence sufficient where
group of ABT members murdered man); see also Byrd v. State, No. 2-08-124-CR, 2009
WL 672390, at *3–4 (Tex. App.—Fort Worth Mar. 12, 2009, pet. ref’d, untimely filed)
(mem. op., not designated for publication) (holding evidence sufficient where
defendant and fellow white-supremacist gang members assaulted man); Harris v. State,
2-01-348-CR, 2003 WL 2006578, at *2–3 (Tex. App.—Fort Worth May 1, 2003, pet.
ref’d) (mem. op., not designated for publication) (holding evidence sufficient where it
showed drive-by shooting occurred in an area of town known to be controlled by the
Crips and defendant was detained in a vehicle matching the victim’s description and
accompanied by another Crips member); Roy v. State, 997 S.W.2d 863, 868 (Tex.
App.—Fort Worth 1999, pet. ref’d) (holding evidence sufficient where, in drug-deal-
gone-bad, defendant—accompanied by a fellow member of the Crips—shot two
people). While I would not go so far as to suggest that involvement of other gang
5
members at the scene of the crime is always required, in cases where other gang
members are not directly involved, there must be some other competent evidence
tending to prove that the defendant committed the crime on behalf of the street gang.
See, e.g., Samaripas v. State, 446 S.W.3d 1, 6–7 (Tex. App.—Corpus Christi-Edinburg
2013) (holding evidence sufficient to support EOCA conviction where there was
evidence that appellant acted in retaliation for rival gang’s shooting him in previous
altercation), reversed on other grounds, 454 S.W.3d 1 (Tex. Crim. App. 2014); Curiel v. State,
243 S.W.3d 10, 16–18 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding
evidence sufficient to support EOCA conviction where defendant, a member of the
“La Primera” gang, admitted that he “was acting as a soldier” for Primera and stated,
“Here, only Primera,” just prior to shooting at the complainant). Without such proof,
there is an insufficient nexus between the gang affiliation and the underlying offense.
Here, there was no evidence of the involvement of other East Side Latin Kings
in the underlying crime of unauthorized use of a motor vehicle. Officer Wells merely
assumed that Castro stole the truck and the construction materials and that he must
have had help in loading the construction materials into the truck. This, plus
testimony that the East Side Latin Kings are known to steal things and that Castro
was found with the truck at a business under investigation for connections to illegal
activities of the East Side Latin Kings, is the entirety of evidence admitted to establish
that Castro was operating the truck “as a member of a criminal street gang.” See Tex.
Penal Code Ann. § 71.02; Zuniga, 551 S.W.3d at 739.
6
This is an example of impermissible speculation described in Hooper v. State,
214 S.W.3d 9, 15, 17 (Tex. Crim. App. 2007). A jury cannot determine ultimate facts
by relying on speculation, and to demonstrate that point, the court provided its
“smoking gun” hypothetical:
A woman is seen standing in an office holding a smoking gun. There is
a body with a gunshot wound on the floor near her. Based on these two
facts, it is reasonable to infer that the woman shot the gun (she is
holding the gun, and it is still smoking). Is it also reasonable to infer that
she shot the person on the floor? To make that determination, other
factors must be taken into consideration. If she is the only person in the
room with a smoking gun, then it is reasonable to infer that she shot the
person on the floor. But, if there are other people with smoking guns in
the room, absent other evidence of her guilt, it is not reasonable to infer
that she was the shooter. No rational juror should find beyond a
reasonable doubt that she was the shooter, rather than any of the other
people with smoking guns. To do so would require impermissible
speculation. But, what if there is also evidence that the other guns in the
room are toy guns and cannot shoot bullets? Then, it would be
reasonable to infer that no one with a toy gun was the shooter. It would
also be reasonable to infer that the woman holding the smoking gun was
the shooter. This would require multiple inferences based upon the
same set of facts, but they are reasonable inferences when looking at the
evidence. We first have to infer that she shot the gun. This is a
reasonable inference because she is holding the gun, and it is still
smoking. Next, we have to infer that she shot the person on the floor.
This inference is based in part on the original inference that she shot the
gun, but is also a reasonable inference drawn from the circumstances.
Id. at 15-17. The court later clarified the difference between reasonable inferences
and mere speculation, stating that a speculation-driven conclusion cannot support a
finding beyond a reasonable doubt. Winfrey, 393 S.W.3d at 771; see also McKay v. State,
474 S.W.3d 266, 270 (Tex. Crim. App. 2015) (explaining that evidence is insufficient if
it “creates only a suspicion that a fact exists”); Anderson v. State, 416 S.W.3d 884, 888
7
(Tex. Crim. App. 2013) (“Speculation is mere theorizing or guessing about the
possible meaning of the facts and evidence presented.”).
The evidence in this case provides no more than a theory that Castro was
acting on behalf of the gang or in furtherance of their illegal activities when he was
found driving Toole’s stolen truck containing stolen construction materials. To
support this theory, the State offered: (1) evidence of Castro moving the truck from a
business that was suspected of having connections to illegal East Side Latin King
activities, including the sale of stolen construction materials; (2) an inference that
Castro stole the truck; (3) an inference that Castro would have required the assistance
of others to steal the truck and the construction materials; and (4) speculation that out
of the entire universe of possible helpers, Castro’s helpers must have been fellow
members of the East Side Latin Kings. This is the kind of impermissible leap that the
court of criminal appeals has held to be infirm. See Winfrey, 393 S.W.3d at 771; Hooper,
214 S.W.3d at 15–17.
For these reasons, I respectfully dissent from the majority’s resolution of
Castro’s second point. Because I would reverse the trial court’s judgment on the
EOCA charge and render a judgment of acquittal, I would not address his first point,
nor would I address his third point as it relates to the EOCA conviction. See Tex. R.
App. P. 47.1. I concur with the majority’s resolution of Castro’s third point with
respect to his conviction for unauthorized use of a motor vehicle.
8
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 9, 2020
9