Jasso, Juan Jose v. The State of Texas--Appeal from 65th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JUAN JOSE JASSO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-01-00231-CR

Appeal from the

65th District Court

of El Paso County, Texas

(TC# 970D04149)

MEMORANDUM OPINION

This is an appeal from a conviction for engaging in organized criminal activity and murder. A jury found Appellant guilty, and the trial court assessed punishment at forty (40) years in the Institutional Division of the Texas Department of Criminal Justice on each count. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On April 26, 1997, Myrna Saenz ( Saenz ) invited friends and family to a birthday party for her sister Tanya at her mother s house located at 9875 Lily Street in El Paso. Guests included Jessica Acosta, Tanya s boyfriend, Rueben Martinez, and Myrna s boyfriend, Heriberto Hernandez. Martinez invited members of the Nasty Boys gang, including Appellant, who stayed for approximately half an hour. After the Nasty Boys departed, members of Soco Loco, including the victim, arrived. Saenz allowed Soco Loco to stay since the Nasty Boys had left. However, members of the Nasty Boys later returned to the party. Soco Loco and Nasty Boys were cordial for approximately one hour until members of Soco Loco began throwing their gang . . . on the other people s faces. Saenz then asked both groups to leave.

Soco Loco was the first group to begin to leave the party. In an effort to avoid problems, Saenz asked the Nasty Boys to stay until Soco Loco left. As Soco Loco departed through the gate, someone from Nasty Boys pulled the gate and swung at a member of Soco Loco. Fighting then ensued between the two groups.

Acosta, Hernandez and Saenz observed the fight involving the victim. Saenz saw approximately four or five people surround, kick, hit, and throw bricks at the victim. Saenz identified Appellant as one of the individuals surrounding the victim, but she did not see what, specifically, Appellant did to the victim. Hernandez testified that he took a piece of brick away from Appellant. Hernandez testified that he did not see Appellant throw a brick at the victim. Hernandez had previously told the El Paso Police Department that he saw Appellant throw a brick at and kick the victim. In light of his inconsistent statements, Hernandez stated that it was difficult to testify against the Nasty Boys and that he worried about his family s welfare. Acosta testified that she observed Appellant throw a brick on the victim s head more than once. Acosta also heard one of the individuals surrounding the victim say Hit him, Jasso, hit him in Spanish.

Crime scene technician Officer Michael C. Velez responded to the scene. Officer Velez contained the scene and collected evidence. Officer Velez photographed graffiti located across the street from 9875 Lily, additional graffiti found on the sidewalk, a blood stain in the roadway, and blood-stained bricks.

Gang Intelligence Officer Mary Lou Carrillo testified that Appellant was entered

in the department s files as a member of the Nasty Boys gang, El Paso s second largest gang. The Nasty Boys have a record of involvement in aggravated assaults, aggravated robberies, drive-by shootings and drug trafficking. Officer Carrillo also explained that specific criteria must be followed by law enforcement to identify an individual as a gang member.

Dr. Juan Contin, El Paso s chief medical examiner, performed the victim s autopsy. Dr. Contin testified that the victim s death was caused by brain edema that resulted from blunt-force head injuries. Specifically, the victim sustained at least seven separate blows to the head that resulted in a large subgaleal hematoma, two separate scalp lacerations, cerebral contusions, diffuse subarachnoid hemmorrhage, masssive cerebral swelling, extensive skull fractures, and multiple bruises and abrasions all over the body. Dr. Contin testified that a combination of the blows caused the victim s death. Dr. Contin described the injuries the victim sustained to his left forehead and right shoulder as pattern injuries, whereby the skin marks are configured like the object that caused the injury. Dr. Contin testified that the landscaping brick submitted as evidence was capable of causing the victim s injuries.

In a two-count indictment, Appellant was charged with engaging in organized criminal activity with murder as the underlying offense // (Count I) and murder (Count II). The jury found Appellant guilty of engaging and murder. The trial court sentenced Appellant to forty (40) years in the Institutional Division of the Texas Department of Criminal Justice on each count.

II. DISCUSSION

Appellant raises three issues. In the first issue, Appellant asserts two-pronged legal insufficiency. Appellant asserts that the evidence was legally insufficient to prove that he was a member of a combination under the engaging statute. Appellant also maintains that since no parties charge was submitted to the jury, the evidence was legally insufficient to establish that Appellant caused the victim s death. In the second issue, Appellant contends that gang-crime evidence was improperly admitted. In the third issue, Appellant maintains that the convictions for engaging in organized criminal activity and murder violate the double jeopardy provision of the United States Constitution.

A. Legal Sufficiency

1. Standard of Review

In conducting a legal sufficiency review, we determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the challenged elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 830, 114 S. Ct. 100, 126 L. Ed. 2d 66 (1993). Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref d). We do not resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref d); 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); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref d); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

2. Jury Instruction

Appellant asserts that the evidence is legally insufficient since the jury charge did not include an abstract instruction on the law of parties. The jury charge contained two counts. Count one read in relevant part as follows:

ENGAGING IN ORGANIZED CRIMINAL ACTIVITY

Paragraph A

. . . on or about the 27th day of April, 1997 . . . JUAN JOSE JASSO did then and there with intent to establish, maintain or participate in a combination, with JAVIER QUEZADA,JOSE BENAVIDEZ, FRANCISCO DOMINGUEZ, ELISEO JARAMILLO, RICHARD BACA or CARLOS ESCOBAR, did then and there commit the criminal offense of murder of JAKE

AGUIRRE.

Paragraph B

. . . on or about the 27th day of April, 1997 . . . JUAN JOSE JASSO, as a member of a criminal street gang, namely, The Nasty Boys, did then and there commit the

criminal offense of murder of JAKE AGUIRRE . . .

Immaterial variance between the indictment and the jury charge may be disregarded in the hypothetically correct charge // . See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). Appellant notes that the hypothetically correct charge may not modify the indictment allegations so as to allege an offense different than that alleged in the indictment. Planter v. State, 9 S.W.3d 156 (Tex. Crim. App. 1999). The hypothetically correct charge in this case does not modify the indictment so as to allege an offense different than that alleged in the indictment, rather it simply disregards the combination surplusage from the criminal street gang charge to provide alternative theories of the engaging offense. The State argued that Appellant committed the engaging offense by killing the victim with the intent to participate in a combination with other named individuals; oras a member of a criminal street gang. After being charged pursuant to the several paragraphs alleged in the indictment, the jury returned two general verdicts of guilty: one finding Appellant guilty of engaging and one finding him guilty of murder. It is well-settled that when a general verdict is returned, the verdict will be upheld so long as the evidence is sufficient to support a finding of guilt under any of the paragraph allegations. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 844, 118 S. Ct. 125, 139 L. Ed. 2d 75 (1997); Nevarez v. State, 847 S.W.2d 637, 643 (Tex. App.--El Paso 1993, pet. ref d). Thus, the State need only have sufficiently proved any one of the submitted paragraph allegations. Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922, 113 S. Ct. 3035, 125 L. Ed. 2d 722 (1993).

In support of the State s allegation that Appellant committed the engaging offense as a member of a criminal street gang, the jury considered Officer Carrillo s testimony that Appellant is listed in department files as a member of the Nasty Boys gang, who have a history of involvement in aggravated assaults, drive-by shootings, aggravated robberies, and drug trafficking. Officer Carrillo also testified that Javier Quezada, Jose Benavidez, Francisco Dominguez, Eliseo Jaramillo, Richard Baca, and Carlos Escobar, the other individuals listed in the indictment as part of the combination, were also members of the Nasty Boys. Heriberto Hernandez also testified that the fight was between two rival gangs the Nasty Boys and Soco Loco. Thus, we find there was sufficient evidence to find that Appellant was a member of a criminal street gang under the engaging statute.

3. Causation

Appellant also claims that Dr. Contin s testimony that a combination of the blows caused the victim s death is insufficient to prove that Appellant caused the victim s death. The State need not point every fact directly and independently to Appellant s guilt. Livingston v. State, 739 S.W.2d 311, 330 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988). Criminal responsibility exists so long as the result, in this case death, would not have occurred but for Appellant s 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 is clearly insufficient. Tex.. Pen. Code Ann. 6.04(a) (Vernon 2003); see also Robbins, 717 S.W.2d at 351.

Count two charged that Appellant murdered the victim in one of four ways: by hitting the victim (A) about the head and body with his fists, (B) about the head and body with his feet, (C) about the head with a brick, or (D) about the head with a chair. Saenz testified that she saw approximately four or five people surround, kick, hit, and throw bricks at the victim. Although Saenz did not observe what Appellant did to the victim, Acosta testified that she saw Appellant throw bricks at the victim s head more than once. Acosta also heard members of the group surrounding the victim say, Hit him Jasso, hit him. Dr. Contin testified that the victim sustained at least seven separate blows to the head, and that a combination of the blows caused the victim s death. Viewing the evidence in the light most favorable to the verdict, we do not find that Appellant s actions were clearly insufficient to cause the victim s death. Nor do we find that any concurrent cause was clearly sufficient to cause the victim s death. Thus, there was sufficient evidence for the jury to find Appellant caused the victim s death as a principal actor and not a party by hitting the victim about the head with a brick as charged in Paragraph D of the second Count. Accordingly, this element of Appellant s legal sufficiency claim is overruled.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found sufficient evidence to support the verdict beyond a reasonable doubt. Accordingly, Appellant s Issue No. One is overruled in its entirety.

B. Admission of Evidence

In Issue No. Two, Appellant asserts that the trial court erred in their admission of evidence regarding the Nasty Boys criminal activity that was not directly linked to Appellant.

Absent a clear abuse of discretion, the trial court s determination on the admissibility of evidence should not be reversed on appeal. See Levario v. State, 964 S.W.2d 290, 296 (Tex. App.--El Paso 1997, no pet.). So long as the trial court s ruling on the admissibility of the evidence was within the zone of reasonable disagreement, the ruling was not an abuse of discretion. Id.

Evidence of gang affiliation is relevant to proving a gang-related crime such as engaging. Vasquez v. State, 67 S.W.2d 229, 239 (Tex. Crim. App. 2002). To prove the combination element of the offense under the engaging in organized criminal activity statute, the State must prove more than that Appellant committed a single offense with two or more persons; the State must prove a continuing course of criminal activity committed over a period of time. See Nguyen v. State, 1 S.W.3d 694, 696-97 (Tex. Crim. App. 1999). To that end, the State must prove that Appellant intended to establish, maintain or participate in a group of three or more. Munoz v. State, 29 S.W.3d 205, 208 (Tex. App.--Amarillo 2000, no pet.). The State must also prove that the members of the group intended to work together in a continuing course of criminal activity. Id. Thus, testimony relating to Appellant s association with the Nasty Boys and their criminal history was relevant to the combination allegation. Although the specific criminal acts by the gang were not directly linked to Appellant, the State is required to prove the criminal acts and intent of the Appellant as well as the gang. Ross v. State, 9 S.W.3d 878, 881-82 n.4 (Tex. App.--Austin 2000, pet. ref d). Thus, the court did not err in admitting the gang evidence. Issue No. Two is overruled.

C. Double Jeopardy

In Issue No. Three, Appellant asserts that his conviction for both engaging in organized criminal activity and murder constitutes multiple punishments for the same conduct in violation of the Fifth Amendment to the United States Constitution which states in relevant part that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause embodies three essential guarantees: (1) protection against a successive prosecution for the same offense after acquittal; (2) it protects against a successive prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 2077, 23 L. Ed. 2d 656 (1969); Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex. Crim. App. 1992). The third guarantee is at issue in this case.

The double jeopardy guarantee against multiple punishments for the same offense aims to prevent greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992). A person s being charged with, acquitted, or convicted of an offense, including murder, underlying the organized criminal activity statute is no defense to prosecution under the organized criminal activity statute. Tex. Pen. Code Ann. 71.03(3) (Vernon 2003). Based on the rationale of Missouri v. Hunter and the express articulation of intent in Section 71.03, the Texas courts have concluded that the legislature intended to authorize conviction and punishment in the same prosecution for both engaging in organized criminal activity and the underlying offenses listed under Section 71.02. Reina v. State, 940 S.W.2d 770, 775-776 (Tex. App.--Austin 1997, writ ref d). For double jeopardy purposes, organized criminal activity is a separate offense from any of the predicate offenses, including murder, listed under the Penal Code s prohibition on engaging in organized criminal activity. Lam v. State, 17 S.W.3d 381, 385 (Tex. App.--Houston [1st Dist.] 2000, pet. ref d). Accordingly, we overrule Appellant s Issue No. Three.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

August 5, 2003

RICHARD BARAJAS, Chief Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)