IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 29, 2009
No. 08-50884
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
PABLO ARAGON,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-215-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Pablo Aragon appeals his jury trial convictions under the Assimilative
Crimes Act (ACA), 18 U.S.C. § 13, for assault resulting in serious bodily injury
in violation of 18 U.S.C. §§ 7 and 113(a)(6); assault of a security officer causing
serious bodily injury in violation of 18 U.S.C. §§ 7(3) and 13(a) and T EXAS P ENAL
C ODE §§ 22.02(a)(1), (b)(2)(D); and assault of a security officer causing bodily
injury in violation of 18 U.S.C. §§ 7(3) and 13(a) and T EXAS P ENAL C ODE
§§ 22.01(a)(1), (b)(4). Aragon argues that the evidence was insufficient to
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50884
demonstrate that the physical injuries he inflicted on the victim, who was
employed as a security guard on the Paso del Norte Bridge in El Paso, Texas, at
the time of the assault, were “serious bodily injuries” and that the victim was
acting within the scope of his duties as a security guard at the time of the
offense. Aragon does not dispute that he punched the victim or that the victim
sustained injuries as a result of the assault. However, Aragon contends that the
evidence was insufficient to demonstrate that his conduct caused the victim’s
fatal heart attack.
The ACA pertains to offenses committed within the special and maritime
territorial jurisdiction of the United States, as defined by 18 U.S.C. § 7, see § 13,
and provides a set of criminal laws for federal enclaves by using the penal laws
of the states. United States v. Brown, 608 F.2d 551, 553 (5th Cir. 1979). Under
Texas law, Aragon is criminally responsible for aggravated assault if the victim’s
serious bodily injury (the fatal heart attack) “would not have occurred but for his
conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the result and the conduct of
the actor clearly insufficient.” T EX. P ENAL C ODE § 6.04(a).
The only medical evidence presented to the jury was the testimony of the
forensic pathologist who performed the autopsy on the victim. Although the
pathologist testified that the laceration and contusion suffered by the victim as
a result of the punch or punches thrown by Aragon were not fatal injuries, alone,
he testified “within a reasonable degree of medical certainty” that the victim
would not have had a heart attack when he did if not for the stress of Aragon’s
assault. Given that the evidence, both direct and circumstantial, is viewed in
the light most favorable to the jury’s verdict, see United States v. Resio-Trejo, 45
F.3d 907, 910 (5th Cir. 1995), a rational jury could have found beyond a
reasonable doubt that Aragon’s conduct in assaulting the victim caused serious
bodily injury, see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
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No. 08-50884
Aragon also contends that the evidence was insufficient to establish that
the victim was acting as a security guard at the time of the assault. Although
Aragon challenged the sufficiency of the evidence as to the “serious bodily injury”
element, he did not specifically object to the sufficiency of the evidence to prove
this element, and therefore this court’s review is “limited to determining
whether there was a manifest miscarriage of justice, that is, whether the record
is devoid of evidence pointing to guilt.” United States v. Delgado, 256 F.3d 264,
274 (5th Cir. 2001) (internal quotation marks and citation omitted); see United
States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002). The record in this case is
not devoid of evidence that the victim was acting as a security guard at the time
of the offense.
Accordingly, the judgment of the district court is AFFIRMED.
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