MIGUEL TREVINO A/K/A MIKE TREVINO v. THE STATE OF TEXAS--Appeal from 357th District Court of Cameron County

 NUMBER 13-02-353-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

MIGUEL TREVINO A/K/A MIKE TREVINO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 357th District Court of Cameron County, Texas.

 OPINION ON MOTION FOR REHEARING

 Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Hinojosa

We issued a concurring opinion in this case on June 9, 2005. Appellant, Miguel Trevino a/k/a Mike Trevino, subsequently filed a motion for rehearing. We grant appellant=s motion for rehearing, withdraw our concurring opinion of June 9, 2005, and substitute the following as the opinion of this Court.

A jury found Trevino guilty of one count of murder (count I) and one count of aggravated assault (count II) and assessed his punishment at life imprisonment for the murder and ninety-nine years= imprisonment for the aggravated assault. In four issues, Trevino contends that the trial court erred in denying his motion to sever, in denying his motion to quash the indictment, and in admitting evidence of gang affiliation, and that the evidence is insufficient to support the convictions. We affirm.

A. Background

On June 8, 2001, Everardo Serrato was traveling southbound on Sam Houston Street in San Benito in a Grand Am, with Michael Meza as his passenger. While stopped at a traffic light, Serrato noticed Trevino approaching in a Jeep Cherokee from the opposite direction. Because Serrato had known Trevino for many years, Serrato thought Trevino wanted to talk. As Serrato started to roll down his window, Trevino opened fire on the Grand Am with a semi-automatic weapon. Serrato immediately reclined his seat in an effort to protect himself. Attempting to escape, Serrato maneuvered the Grand Am out of traffic and fled north on the Expressway frontage road with Trevino in pursuit. While in pursuit, Trevino continued shooting at the Grand Am; half of his body was hanging outside of the Jeep, while a female steered the vehicle. The chase and shooting continued for about fifteen to twenty minutes. When the shooting stopped, Serrato turned onto the first street he reached and pulled into a convenience store parking lot. Serrato ran inside the store and told the clerk to lock the door. As a result of the shooting, Serrato sustained five bullet wounds. Meza sustained four entry wounds and died as a result of his injuries.

B. Severance

In his first issue, Trevino contends the trial court erred in denying his motion to sever. A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Pen. Code Ann. ' 3.02 (Vernon 2003). However, a defendant has a right to a severance of the offenses. Tex. Pen. Code Ann. ' 3.04(a) (Vernon Supp. 2005). A motion to sever must be raised before trial. See Thornton v. State, 986 S.W.2d 615, 617 (Tex. Crim. App. 1999). When a defendant timely requests severance under section 3.04(a), his or her right to a severance is absolute and severance is mandatory. See Coleman v. State, 788 S.W.2d 369, 371 (Tex. Crim. App. 1990).

Prior to trial, Trevino filed a motion to sever under section 3.04(a), but the trial court denied the motion. Because the right to a severance is absolute, we conclude the trial court erred in denying the motion. See Coleman, 788 S.W.2d at 371. However, because severance error is subject to a harm analysis, we must determine whether the trial court=s denial of Trevino=s motion to sever affected a substantial right. See Llamas v. State, 12 S.W.3d 469, 470-71 (Tex. Crim. App. 2000). In determining harm, we consider the entire record. Tovar v. State, 165 S.W.3d 785, 795 (Tex. App.BSan Antonio 2005, no pet.) (citing Llamas, 12 S.W.3d at 471).

The rule allowing severance rests upon two legitimate concerns: (1) that the jury may convict a Abad man@ who deserves to be punished B not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes, he probably committed the crime charged. Llamas, 12 S.W.3d at 471-72; Tovar, 165 S.W.3d at 795.

The State argues that any error is harmless because the evidence of each of the crimes would have been admissible in a separate trial of the other offense as same transaction contextual evidence. See Dominguez v. State, 62 S.W.3d 203, 208 (Tex. App.BEl Paso 2000, pet. ref=d) (holding severance error was harmless because evidence of each crime would be admissible in a separate trial of the other offense as same transaction contextual evidence). Same transaction contextual evidence results when an extraneous matter is so intertwined with the State=s proof of the charged crime that avoiding reference to it would make the State=s case incomplete or difficult to understand. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). We agree with the State that under the facts of this case the jury would have heard the same evidence regardless of whether the offenses were tried together or separately. Because we conclude that any severance error did not affect a substantial right, we overrule Trevino=s first issue.

C. Motion to Quash Indictment

In his second issue, Trevino contends the trial court erred in denying his motion to quash the first paragraph of the murder count in the indictment. Specifically, Trevino asserts that the indictment fails to track the language of section 19.02(b)(2) of the Texas Penal Code because it does not include the word Aand.@ Section 19.02(b)(2) provides: AA person commits an offense if he . . . intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. . . .@ Tex. Pen. Code Ann. ' 19.02(b)(2) (Vernon 2003) (emphasis added). Trevino argues that because the word Aand@ was not included in the indictment, the indictment fails to allege all the necessary elements of the offense of murder.

The sufficiency of an indictment is a question of law and is reviewed de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The indictment must be specific enough to inform the defendant of the nature of the accusations against him so that he may prepare a defense. Id. However, this due process requirement may be satisfied by means other than the language in the charging instrument. Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State=s theory against which he would have to defend. Id. Except in rare cases, a charging instrument that tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense, and the State need not allege facts which are merely evidentiary in nature. See State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996).

The indictment alleged that:

MIGUEL TREVINO A/K/A MIKE TREVINO [Defendant], on or about the 8TH day of JUNE, 2001 and anterior to the presentment of this indictment, in the County of Cameron and State of Texas, did then and there, with intent to cause serious bodily injury to an individual, namely, MICHAEL MEZA, commit an act clearly dangerous to human life, to-wit: by shooting MICHAEL MEZA with a firearm, that caused the death of said MICHAEL MEZA.

The indictment clearly tracks the language of section 19.02(b)(2) of the penal code and alleges all the requisite elements: that Trevino Adid then and there@ (1) with intent to cause serious bodily injury, (2) to Michael Meza, (3) commit an act clearly dangerous to human life, (4) by shooting Michael Meza with a firearm, (5) that caused the death of Michael Meza. See Tex. Pen. Code Ann. ' 19.02(b)(2) (Vernon 2003). We conclude that Trevino had sufficient notice the State was charging him with the offense of murder under section 19.02(b)(2). See id. We hold that the absence of the word Aand@ is not fatal. Trevino=s second issue is overruled.

D. Evidence of Gang Affiliation

In his third issue, Trevino contends the trial court erred by admitting evidence of gang affiliation during the guilt-innocence phase of the trial. In response, the State argues that the evidence was relevant and admissible for the following two reasons: (1) it demonstrated the primary motive for the murder and aggravated assault, and (2) it constituted the res gestae of the murder itself.

In determining whether a trial court erred in admitting evidence, the standard of review is abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) (citing Mozon v. State, 991 S.W.2d 841, 846 47 (Tex. Crim. App. 1999). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh=g).

Texas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove a person=s character and/or to show that the person acted in conformity with that character. See Tex. R. Evid. 404(b). However, such evidence may be admitted if it is relevant to motive, identity, intent, opportunity, preparation, plan or absence of mistake. Id. As the Texas Court of Criminal Appeals has explained, AIt has long been the rule in this State that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.@ Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (citing Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)).

The State=s theory was that Trevino, a member of the ATexas Syndicate,@intentionally opened fire on Serrato=s vehicle because Serrato was a member of a rival sect of the same gang. Gang affiliation evidence is relevant evidence of motive to show intent to kill and is permissible under rule 404(b). See Medina v. State, 7 S.W.3d 633, 644 (Tex. Crim. App. 1999) (stating that evidence of gang affiliation "was most relevant as to appellant=s motive and intent on the night of the offense"); Cunningham v. State, 982 S.W.2d 513, 523 (Tex. App.BSan Antonio 1998, pet. ref=d) (holding trial counsel was not ineffective for failing to object to evidence of defendant=s gang affiliation because such evidence was admissible to show motive); Williams v. State, 974 S.W.2d 324, 331 (Tex. App.B San Antonio 1998, pet. ref=d) (holding evidence of gang affiliation admissible under rule 404(b) to show motive). Because Trevino=s affiliation with a rival sect of the gang was relevant to show the motive for the shooting, rather than mere conformity with character, we hold the trial court did not abuse its discretion by allowing it. Trevino=s third issue is overruled.

We note that evidence admissible under rule 404(b) may be excluded under Texas Rule of Evidence 403 if the danger of unfair prejudice substantially outweighs its probative value. See Tex. R. Evid. 403. However, Trevino failed to object under rule 403, and thus failed to preserve any such error. See Tex. R. App. P. 33.1(a); Montgomery, 819 S.W.2d at 388.

E. Sufficiency of the Evidence

In his fourth issue, Trevino contends the evidence is legally and factually insufficient to support his convictions for the murder of Meza and the aggravated assault of Serrato. Specifically, Trevino contends the evidence is insufficient to prove (1) the requisite intent for murder, and (2) the element of identity for both murder and aggravated assault.

In a legal sufficiency review, we must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of the witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. The fact finder may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.BBeaumont 1996, pet. ref=d).

In a factual sufficiency review, we review all the evidence in a neutral light and determine whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond a reasonable doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004). Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Zuniga v. State, 144 S.W.3d 477, 484 85 (Tex. Crim. App. 2004). A proper factual sufficiency review must consider the most important evidence that the appellant claims undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). Every fact need not point directly and independently to the accused=s guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id.

In conducting our review, we measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 181 (Tex. App.BCorpus Christi 2002, pet. ref=d). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State=s burden of proof or necessarily restrict the State=s theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240.

A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause seriously bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. ' 19.02(b)(1), (2) (Vernon 2003).

A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and either (1) uses or exhibits a deadly weapon during commission of the assault, or (2) causes serious bodily injury to another. See Tex. Pen. Code Ann. '' 22.01, 22.02 (Vernon Supp. 2005). ASerious bodily injury@ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon Supp. 2005). ADeadly weapon@ is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (Vernon Supp. 2005).

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. ' 6.03 (a), (b) (Vernon 2003). Intent is almost always proven by circumstantial evidence. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (J. Meyers concurring) (citing Robles v. State, 664 S.W.2d 91, 95 (Tex. Crim. App. 1984)). A jury may infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, the method of committing the crime, and from the nature of wounds inflicted on the victims. Id. (citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)). If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). In fact, when a deadly weapon is fired at close range and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981).

Under the theory of transferred intent, a person can be held criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different person was injured, harmed, or otherwise affected. Tex. Pen. Code Ann. ' 6.04(b)(2) (Vernon 2003).

Trevino asserts that Meza=s death was accidental and not intentional. He argues that because the definition of transferred intent was not included in the jury charge, the jury could not find him guilty under such theory.

Transferred intent is raised when there is evidence that a defendant, with the required culpable mental state, intends to injure or harm a specific person but injures or harms a different person or both. Manrique, 994 S.W.2d at 647 (J. McCormick concurring). Furthermore, under Malik, the hypothetically correct jury charge would include the doctrine of transferred intent. See Malik, 953 S.W.2d at 240. Indeed, the Malik court itself anticipated the review of theories that were raised by the evidence, but not charged in the jury charge, or even the indictment, where such theories are permitted by law and authorized by the indictment. Swartz v. State, 71 S.W.3d 781, 786 (Tex. App.BCorpus Christi 2001, pet. ref=d); see Malik, 953 S.W.2d at 239 (A[W]e recognize that measuring sufficiency by the indictment is an inadequate substitute because some important issues relating to sufficiency B e.g. the law of parties and the law of transferred intent B are not contained in the indictment.@).

The evidence shows that Trevino approached Serrato=s vehicle while it was stopped at an intersection and began shooting at the driver=s side of Serrato=s vehicle with a semi-automatic weapon. Four shots shattered the driver=s side window and one shot pierced the driver=s side door. Serrato sustained bullet wounds to his face and arms, which required surgery. Meza, in the passenger seat, sustained four bullet wounds resulting in his death. Trevino continued to shoot at Serrato=s vehicle while in pursuit.

Serrato positively identified Trevino as the shooter. He testified that he had known Trevino for over fifteen years, and they were once in the same prison unit. Serrato testified that he and Trevino are both members of the Texas Syndicate gang, but Serrato is a veteran member, whereas Trevino is a member of the Anew wave,@ and that the Anew wavers@ have been killing older members.

Carol Cruz, an eyewitness to the shooting, was unable to identify Trevino from a photo lineup a few days after the shooting. However, at trial, she identified Trevino as the shooter.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Trevino committed the offenses of murder[1] and aggravated assault. See Escamilla, 143 S.W.3d at 817. Furthermore, viewing the evidence in a neutral light, we conclude that the evidence supporting the verdict is not too weak to support the jury=s finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond a reasonable doubt standard could not have been met. See Threadgill, 146 S.W.3d at 664. From the evidence, the jury could reasonably infer that by opening fire with a semi-automatic weapon on an occupied vehicle, Trevino specifically intended to kill either or both of the occupants of the vehicle, see Adanandus, 866 S.W.2d at 215, or under the theory of transferred intent, the jury could reasonably infer that Trevino intended to shoot and kill Serrato, but instead killed Meza, see Tex. Pen. Code Ann. ' 6.04(b)(2). Furthermore, regarding identity, the jury, being the sole judge of the credibility of the witnesses, was free to accept or reject the evidence before it, and in doing so, concluded that Trevino was the shooter. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). Accordingly, we hold the evidence is legally and factually sufficient to support the jury=s verdict. Trevino=s fourth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Concurring Opinion by Justice Castillo.

Publish. See Tex. R. App. P. 47.2(b).

Opinion delivered and filed this

the 8th day of June, 2006.

[1] The indictment charged appellant with murder under subsections 19.02(b)(1) and 19.02(b)(2) of the penal code. The jury returned a verdict finding appellant Aguilty of murder, as charged in the indictment.@ When a general verdict is returned and the evidence is sufficient to support a finding under any of the paragraphs submitted, the verdict will be applied to the paragraph finding support in the facts. Manrique v. State, 994 S.W.2d 640, 642 (Tex. Crim. App. 1999).