Jaramillo, Eliseo v. The State of Texas--Appeal from 65th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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ELISEO JARAMILLO, ) No. 08-00-00489-CR

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Appellant, ) Appeal from

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v. ) 65th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 970D04155)

O P I N I O N

Eliseo Jaramillo appeals his conviction for the offense of engaging in organized criminal activity. The trial court assessed punishment by confinement in the Texas Department of Criminal Justice for ten years, probated for a period of ten years. Appellant argues the evidence was insufficient as a matter of law to support his conviction. We affirm.

FACTUAL SUMMARY

On the evening of April 26, 1997, Tanya Cardoza was celebrating her fifteenth birthday party, or Aquinceanera,@ at her home at 9875 Lilly in El Paso County. Tanya=s sister, Myrna, organized the party and family and friends were invited. Guests included Jessica Acosta, Tanya=s boyfriend, Ruben Martinez, and Myrna=s boyfriend, Heriberto Hernandez. Invited by Martinez, some ten to twelve members of an El Paso gang known as the ANasty Boys@ arrived around 9 p.m. The group entered the front gate and walked around the side of the house to the backyard; they ate, drank, and left the party within a half hour of arriving. Acosta testified that the Nasty Boys were drunk when she arrived.

After the Nasty Boys left, eight to ten members of ASoco Loco@ gang arrived. Myrna greeted them at the gate. She hesitated to let them in because they had not been invited, but because there was almost no one left at the party, she relented.

About half an hour after leaving the party, a group of twelve to fifteen Nasty Boys returned, including the same individuals who were in attendance earlier. Acosta was concerned that there would be problems between the two groups because of their rivalry. She testified that the gang members were Astaring each other down@ and Agiving each other bad looks.@ Tanya was initially concerned that the two gangs would fight as soon as they saw each other, but she described them as Acalm@ and Atrying to get along@ with each other. Some of the members shook hands and introduced themselves. The Nasty Boys looked older and appeared to have a larger physical build than the members of Soco Loco.

After a while, a Soco Loco known as AHooter@ started trouble with the Nasty Boys. Hooter was observed Apicking a fight@ and throwing gang signs at the Nasty Boys, saying Apuro Soco Loco.@ The Nasty Boys remained calm at first. Acosta testified that the Nasty Boys were drunk and began name-calling. Myrna sensed trouble, turned off the music, and warned the groups to stop or they would have to leave. Myrna turned the music back on and Hooter began throwing his gang signs again. There was one member from the Nasty Boys who told Hooter Ato cut it out@ because they were at the party Ato have a good time.@ Myrna identified this person as Appellant. Appellant appeared to her to be the leader of the Nasty Boys because he stood in front of the group. Hernandez testified that Soco Loco member Jake Aguirre, also known as ACasper,@ initiated an argument with Frank Dominguez, one of the Nasty Boys. After Myrna turned off the music and told everyone to settle down, Dominguez and Aguirre began arguing again.

Finally, Myrna ordered everyone to leave. The Nasty Boys followed behind Soco Loco toward the front gate. Tanya, Myrna, and Martinez walked between the two groups to prevent anything from happening. Soco Loco and the Nasty Boys yelled at each other as they were being escorted out of the backyard. The members of Soco Loco began running from the yard; Myrna closed the gate behind them and held it shut to keep the groups separated. Myrna recalled that Soco Loco members were Arowdy@ and Aout to pick a fight.@ The Nasty Boys remained inside the yard behind the fence. Each side continued the name-calling and threw gang signs at the other. One of the Nasty Boys ran up to the front gate. Another Soco Loco did the same and both tugged at it back and forth. While Myrna tried to hold the gate, someone forced it open. Myrna was punched in the face and the Nasty Boys ran into the street. There were several fights going on at one time. Myrna saw Hooter on the ground being kicked by several people.

Acosta, Hernandez, and Myrna observed the fight involving Aguirre. Aguirre began fighting with one of the Nasty Boys. He made an attempt to run but was tripped and fell to the ground. Aguirre lay in the middle of the street with three or four Nasty Boys surrounding him. Acosta watched the Nasty Boys kick Aguirre all over his body. She could hear the kicks and heard him stop breathing. Hernandez saw Juan Jasso and Dominguez surround Aguirre and then Dominguez kicked Aguirre. Myrna described the kicking as Abrutal@ and Amerciless.@ Some Nasty Boys bent over and punched Aguirre with their hands. Aguirre did not fight back, but only tried to cover his head. The Nasty Boys also used a chair, a stick or a pipe, and a brick to hit Aguirre. The chair was like a folding lawn chair made of metal. Myrna saw someone strike Aguirre=s shoulder with a stick. Acosta saw a tall, skinny person take a brick and drop it on Aguirre=s head. The brick broke into two pieces as it hit his head. Myrna described the brick as being in the shape of a half-moon, and said that it came from her parent=s yard. Then one of the Nasty Boys took one of the broken pieces and took turns with another member hitting Aguirre with the brick multiple times. Another Nasty Boy yelled words of encouragement to Jasso, telling him to continue hitting Aguirre. Aguirre did not move as he was struck.

While Acosta and Hernandez identified Jasso as the one who dropped the brick on Aguirre=s head, Myrna identified Appellant. She also identified Appellant as one of the individuals who struck Aguirre with a broken piece of brick. Myrna walked toward Aguirre to try to stop the beating and came within five or six feet. She recalled that one of the men had a smirk on his face while he beat Aguirre. When Myrna yelled at them to stop, Appellant threw a brick at her. The brick missed her and knocked a side-view mirror off of a car parked on the curb. Appellant then ran away.

Someone yelled that the police were coming and everyone scattered, jumped in their cars, and sped off. Acosta ran to Aguirre=s side. He did not appear to be conscious and was barely breathing. Acosta believed Aguirre had internal injuries because she heard a rattling sound she had heard before--like someone who has fluid in their esophagus. Acosta stood next to Aguirre so that the fleeing cars would not run over him. Hernandez went into the street and picked up the brick. Michael Velez of the El Paso Police Department arrived on the scene at about 2 a.m. Officer Velez discovered some gang graffiti on the sidewalk near the house at 9875 Lilly. The graffiti appeared to be fresh.

Dr. Juan Contin, the chief medical examiner for El Paso County, conducted the autopsy on Aguirre. He found no less than seven injuries to the head that had the configuration of a square. A brick, similar to the one introduced into evidence, was capable of causing the pattern injuries to Aguirre=s head. Aguirre also had multiple skull fractures, bleeding inside the skull, and a hemorrhage on the brain. The final cause of death was severe brain swelling due to his injuries that resulted from blunt force trauma.

Jeffrey Gibson, a detective with the gang task force of the El Paso County Sheriff=s Department, testified that Appellant, Javier Quesada, Jose Benavidez, Frank Dominguez, Juan Jasso, Richard Baca, and Carlos Escobar were all members of the Nasty Boys and that he was familiar with them. Detective Gibson was familiar with the Nasty Boys. They regularly associate to commit criminal activities; they do not associate to carry out any other types of activities or functions. As a group, they commonly participate in such offenses as murder, criminal attempted murder, drive-by shooting, burglary of habitation, burglary of vehicles, theft, graffiti, retaliation, and obstruction.

At trial, Appellant claimed that he was not an official member of the Nasty Boys but merely Ahung around@ with them. He was familiar with their territory in El Paso and was aware that if he entered into another gang=s territory, there might be a fight or other conflict. Appellant was also aware that when he went to the party, he was invading Soco Loco territory. He confirmed that Jasso, Escobar, Baca, and Dominguez were members of the Nasty Boys gang.

Appellant went to the party with Benavidez and Jasso. Baca and Dominguez were also there. Appellant grew bored and went outside to watch Dominguez and others spray graffiti on a wall. Appellant then left the party with Benavidez and Jasso to pick up some girls. The group purchased beer and returned. There were fifteen members of the Nasty Boys at the party when he arrived. Appellant recalled that Martinez mentioned to him that there was a different rival gang at the party and to avoid causing any trouble. After ten minutes, a Soco Loco member approached Dominguez and told him something that agitated him. Aguirre also began to cause trouble and said something to Dominguez to make him angry. Soco Loco and the Nasty Boys were told to leave. Dominguez appeared mad at that point and Awas ready to fight.@ The two groups cursed at each other as they walked out. When Appellant reached the front gate, he took off his jacket because he Aknew there was going to be some trouble . . . maybe a fight.@ The front gate was pushed open and the Nasty Boys rushed Soco Loco. Appellant began chasing someone he identified as AHooter.@ Hooter jumped a car and fell. Appellant also jumped the car. When Appellant saw Hooter about to get to his feet, Appellant assumed he wanted to fight. Appellant punched him once and Hooter was knocked down. At that point, someone else approached and began to fight with Hooter. Appellant believed that the police were on their way or that more Soco Loco members were coming, so he went to search for his jacket but could not find it. Appellant then ran to Benavidez=s car and sat in the backseat for a few minutes waiting. When Benavidez and Jasso returned to the car, they left.

The group drove to Jasso=s house. Escobar, Baca, Dominguez, and Lorenzo Avila also arrived. Jasso admitted he had hit someone with a brick. Dominguez had also hit him with some object. Avila had hit him with a stick he had in his car. Escobar, also known as ASnoop,@ had hit him with either a chair or a brick. Appellant denied that he ever punched or hit Aguirre.

Appellant was charged with two counts. Count I pertained to the offense of engaging in organized criminal activity to commit murder and Count II for murder. While the jury returned a verdict of guilty under Count I for engaging in organized criminal activity, Appellant was found not guilty of murder under Count II.[1] The trial court sentenced him to ten years in the Texas Department of Criminal Justice, probated for a period of ten years.

STANDARD OF REVIEW

In his sole point of error, Appellant raises a legal sufficiency challenge to his conviction. In conducting our review, we examine all of the evidence in a light most favorable to the verdict, both admissible and inadmissible, 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Lyon v. State, 885 S.W.2d 506, 516 (Tex.App.--El Paso 1994, pet. ref=d). Sufficiency of the evidence should be measured by the elements of the offense in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). A hypothetically correct jury charge is one that Aaccurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried.@ Malik, 953 S.W.2d at 240. 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, 885 S.W.2d at 516-17. Moreover, we do not resolve any conflicts of fact or assign credibility to the witnesses as it is the function of the trier of fact to do so. See 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). This standard of review for sufficiency of the evidence on appeal is the same for both direct and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991); Garcia v. State, 871 S.W.2d 279, 280 (Tex.App.--El Paso 1994, no pet.). If we sustain a legal sufficiency challenge, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

ENGAGING IN ORGANIZED CRIMINAL ACTIVITY

Article 71.02 of the Texas Penal Code sets out the elements of the offense of engaging in organized criminal activity:

(a) 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, he commits or conspires to commit one or more of the following:

(1) murder, capital murder . . . aggravated assault . . . deadly conduct . . . assault punishable as a Class A misdemeanor.

Tex.Pen.Code Ann. ' 71.02(a)(Vernon Supp. 2002). A criminal street gang is defined as Athree 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.@ Tex.Pen.Code Ann. ' 71.01(d).

The State=s indictment alleged two alternative means of committing the offense of engaging in organized criminal activity. Paragraph A alleged that the appellant, with the intent to establish maintain, or participate in a combination, committed the offense of murder. Paragraph B alleged that appellant, as a member of a criminal street gang, committed the offense of murder. Since sufficiency of the evidence is measured by the elements of the offense in the hypothetically correct jury charge for the case, we must look to the application paragraph which contained the alternative set out in Paragraph B:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 27th day of April 1997, in El Paso County, Texas, the defendant, ELISEO JARAMILLO, 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, then you will find the defendant Guilty of Engaging in Organized Criminal Activity as alleged in Count 1, Paragraph B. [Emphasis added].

The charge was hypothetically correct. There was no application paragraph for Count I, Paragraph A. Thus, if the evidence is sufficient to support a jury finding beyond a reasonable doubt on the essential element of Acriminal street gang,@ the conviction will be upheld.

 THE  ACRIMINAL STREET GANG@ ELEMENT

Appellant contends that the evidence was insufficient to show that he and the other alleged members of the Nasty Boys formed a combination to commit the offense of murder. Based on the charge presented to the jury, the State need not have proven that Appellant formed a Acombination@ to murder Aguirre. As discussed above, the application paragraph only included membership in Aa criminal street gang@ as an element of the offense of engaging in organized criminal activity. Thus, while the State=s indictment included two alternative means of committing the murder of Aguirre, the State was only required to prove that Appellant committed the murder as a member of a criminal street gang. Appellant did not frame his complaint as a challenge to the legal sufficiency of this element. However, in the interest of justice, we will entertain the complaint and review it as a legal sufficiency challenge to the Acriminal street gang@ element.

Appellant seemingly argues that because he was not convicted of murder under Count II, his conviction for engaging in organized criminal activity cannot stand. His acquittal for the offense of murder under Count II does not bar his conviction for engaging in organized criminal activity. Texas Penal Code Section 71.03 provides that a defendant need not be convicted of the underlying offense to be found guilty of engaging in organized criminal activity under Section 71.02. Section 71.03 provides:

It is no defense to prosecution under Section 71.02 that:

(1) one or more members of the combination are not criminally responsible for the object offense;

(2) one or more members of the combination have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense, or are immune from prosecution;

(3) a person has been charged with, acquitted, or convicted of any offense listed in Subsection (a) of Section 71.02; or

(4) once the initial combination of three or more persons is formed there is a change in the number or identity of persons in the combination as long as two or more persons remain in the combination and are involved in a continuing course of conduct constituting an offense under this chapter. [Emphasis added].

Tex.Pen.Code Ann. ' 71.03 (Vernon 1994).

Detective Gibson testified that he was familiar with the Nasty Boys and that Appellant was a member of the gang. He also identified Javier Quesada, Jose Benavidez, Francisco Dominguez, Juan Jasso, Richard Baca, and Carlos Escobar--all named in the State=s indictment--as members of the Nasty Boys. Appellant admitted that each of these individuals was a member the gang. While Appellant denied that he was a member and claimed he merely Ahung around@ with them, the jury, as the trier of fact, was entitled to evaluate his credibility and disbelieve his testimony in light of the rest of the evidence presented. Detective Gibson further explained that the Nasty Boys had no other purpose for associating other than the commission of criminal activities. Some of these activities included murder, criminal attempted murder, drive-by shooting, burglary, theft, graffiti, retaliation, and obstruction. Appellant admitted that he was familiar with the territory of the Nasty Boys in El Paso and aware that if he entered into another gang=s territory, there might be a fight or other conflict. Appellant was also aware that when he went to the party he was invading Soco Loco territory.

Several witnesses testified that Soco Loco member, Hooter, repeatedly threw gang signs at the Nasty Boys in an effort to agitate them. The Nasty Boys also threw their gang signs at Soco Loco while being escorted out of the party. Appellant watched other members of the Nasty Boys spray graffiti on a wall while attending the party. The State introduced into evidence properly authenticated photographs of graffiti found by detectives on the sidewalk near the site of the beating. The jury could have reasonably concluded that the graffiti was left by the Nasty Boys. This evidence was sufficient to establish a finding of the criminal street gang element beyond a reasonable doubt: three or more persons (Appellant, Quesada, Benavidez, Dominguez, Jasso, Baca, and Escobar) having a common identifying sign or symbol or an identifiable leadership (graffiti sprayed on sidewalk, gang signs thrown at party) who regularly associate in the commission of criminal activities (murder, criminal attempted murder, drive-by shooting, burglary, theft, graffiti, retaliation, obstruction). While only Myrna affirmatively identified Appellant as one of the Nasty Boys who beat Aguirre, the evidence was sufficient to show that Appellant=s actions--together with the actions of other named members of the gang--culminated in the murder of Aguirre.

The jury was entitled to judge the credibility of the witnesses and could have rationally concluded that Appellant participated in the beating of Aguirre. He need not have committed the murder alone and he need not have delivered the final blow that caused Aguirre=s death. As long as there was sufficient evidence establishing that he participated in the beating as part of a criminal street gang that ultimately led to the Aguirre=s death, his conviction for engaging in organized criminal activity should be upheld. Appellant=s sole issue is overruled. Finding the evidence legally sufficient, we affirm the judgment of conviction.

June 13, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

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

(Do Not Publish)

[1] Count I of the indictment read in relevant part:

[O]n or before the 27TH DAY OF APRIL, 1997 . . . ELISEO JARAMILLO . . .

PARAGRAPH A

with intent to establish, maintain, or participate in a combination with JAVIER QUEZADA, JOSE BENAVIDEZ, FRANCISCO DOMINGUEZ, JUAN JASSO, RICHARD BACA AND CARLOS ESCOBAR did then and there commit the criminal offense of MURDER of JAKE AGUIRRE,

PARAGRAPH B

as a member of a criminal street gang, namely, THE NASTY BOYS, and with intent to establish, maintain, or participate in a combination, with JAVIER QUEZADA, JOSE BENAVIDEZ, FRANCISCO DOMINGUEZ, JUAN JASSO, RICHARD BACA AND CARLOS ESCOBAR did then and there commit the criminal offense of MURDER of JAKE AGUIRRE . . . .