Barrientes, III, Jesse John v. State ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JESSE JOHN BARRIENTES, III,                         )

                                                                              )               No.  08-02-00113-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     106th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Gaines County, Texas

Appellee.                           )

                                                                              )                    (TC# 01-3112)

                                                                              )

O P I N I O N

Appellant Jesse John Barrientes, III appeals his conviction for the offense of engaging in organized criminal activity.  After finding Appellant guilty, the jury made an affirmative finding that Appellant used or exhibited a deadly weapon during the commission of the offense.  The jury assessed punishment and Appellant was sentenced to 18 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice and fined $5,000.  Appellant raises two issues on appeal:  (1) the evidence is legally and factually insufficient to support his conviction for engaging in organized criminal activity because the State failed to prove he acted with intent to establish, maintain, or participate in a combination; and (2) the conviction was based on uncorroborated accomplice witness testimony. We affirm.

This case involves a drive-by shooting of a family residence that occurred on February 5, 2000 in Seminole, Texas.  On that day, Marvin Ensor and his daughter returned home from a trip to Fort Worth shortly after five o=clock in the evening.  Ten to twenty minutes later, Mr. Ensor was sitting in his living room when he heard loud noises out in front of his house that sounded like gunfire.  Mr. Ensor went out to investigate and saw that his work pickup truck, which was parked in front of his house, had bullet holes down the side of it and its back passenger side window was broken.  Janet Smith, a neighbor whose daughter was playing at the Ensor residence, came towards him from across the street to talk to him about what had happened.

Ms. Smith testified that she had been sitting in her dining room with a friend when she heard some loud bangs or popping sounds. She immediately ran to the screen door to see what had caused the noise.  Ms. Smith went outside and saw a dark sporty car peeling out at the stop sign and speed around the corner.  To Ms. Smith, the car seemed to be full of people.  Ms. Smith talked to Mr. Ensor, observed the damage done to Mr. Ensor=s pickup truck, then went back to her house and called 911 for police assistance. Police officers later determined that Mr. Ensor=s work vehicle had been struck five times by gunfire.

Police officers and Mr. Ensor then discovered that three bullets went through the daughter=s bedroom window, located just east of the front door, and a fourth bullet had ricocheted off the window frame.  One of the bullets went through two panes of glass and traveled through mini blinds, a curtain, through the bedroom, and an open door before it became lodged between two walls in the hallway.  Police officers recovered a bullet lodged in the window frame and a bullet fragment on the front porch below the bedroom window. Officers at the scene also recovered numerous .25 and .22 caliber shell casings from the road in front of the Ensor residence.

Texas State Trooper Juan Gabriel Medrano was on highway patrol duty on the evening of February 5, 2000.  Around 5:30 p.m., Trooper Medrano was advised by dispatch that there had been a drive-by shooting in Seminole and was given a description of the suspect=s vehicle as Aan early model dark blue Camaro with a spoiler on the trunk.@ Trooper Medrano waited on Highway 385 which heads toward Odessa, for approximately twenty minutes before proceeding back to Seminole.  As he drove, Trooper Medrano noticed a dark green Saturn with a spoiler on the trunk. As Trooper Medrano looked over at the vehicle, all four occupants looked over at him at the same time, which he thought was a little odd.  As Trooper Medrano followed the vehicle, he observed that the right rear passenger had on a black and white rag and turned around to look at him.  The left rear passenger had on a red hat with a red bandana and a red shirt.  Trooper Medrano also noticed a lot of movement inside the vehicle.  Based on his training and experience, the clothing on the left rear passenger indicated to Trooper Medrano that the individual was a gang member of the Bloods.  Suspecting that the vehicle may have been involved in the drive-by shooting, Trooper Medrano called for back-up and proceeded to follow the vehicle to a residence on County Road 406.

Trooper Medrano pulled into the residence driveway as the four occupants of the vehicle quickly got out and headed towards the house without looking at the officer, even though they had seen the trooper following them.  Trooper Medrano called them over to talk and smelled an odor of alcohol from the group. The individuals were later identified as Dante Canava, the driver, Anthony Savage, the front right passenger, Felipe Castillo, the left rear passenger, and Appellant, the right rear passenger in the vehicle.  Trooper Medrano did not search the vehicle, but through a window he saw a pair of black gloves, a knife in the driver=s side door bin, and two boxes of Remington .22 caliber ammunition in the mesh holder behind the driver=s seat.

Patrol Lieutenant Ronny Pipkin of the Seminole Police Department searched the vehicle and recovered the following evidence:  two boxes of .22 caliber ammunition behind the driver=s seat in a net pouch; one box of .25 caliber ammunition in the back seat on the passenger=s side; a butcher=s knife in the driver=s side door pouch; a .25 caliber Ravens Arms handgun and a .22 Colt handgun in the back seat area hidden underneath the plastic console between the seats; two magazine clips in the glove compartment, one containing ten rounds of .22 caliber bullets and the other containing six rounds of .25 caliber bullets; and a pair of black leather gloves in the back seat area on the passenger floorboard.

Anthony Savage, one of the passengers in the vehicle testified about the events related to the drive-by shooting.  According to Savage on February 5, 2000, he was visiting with his girlfriend at her mother=s house when Canava, Castillo, and Appellant drove up in a two-door green Saturn and picked him up.  Appellant asked Savage if he could help Appellant=s mom move some furniture.  Canava was driving, Savage was in the front passenger seat, Appellant was in the right rear seat and Castillo was in the left rear seat.  They went to Savage=s mother=s house so that he could tell her that he was going to Seminole to help Appellant=s mother move and they stopped at an Allsup=s store for cigarettes and orange juice. When they reached the city limits, Savage noticed that Castillo had a black pistol inside the front of his pants. Savage asked Castillo what he was doing and Appellant then told Savage that they had two of them, showing Savage another pistol.  Castillo then told Savage that Aif anybody messes with them that they was going to bust on them,@ meaning they were going to shoot them. They then drove to the

Wal-Mart, where Appellant and Castillo bought three boxes of ammunition in the sporting goods section.

After they left the Wal-Mart, Appellant gave Canava driving directions first to his mother=s house where they helped move boxes and then to his grandmother=s house.  On the way to his grandmother=s house, Appellant asked if anybody wanted to go to the country and shoot the guns. On their way back from his grandmother=s house, Appellant said they were going back to his mother=s house and started giving driving directions again.  At that point, Savage observed Appellant and Castillo load and then switch the guns.  Before loading the guns, Appellant put on a white bandana and Castillo put on a red bandana.  They were driving in a residential neighborhood.  Castillo then put a gun in Canava=s seat and said, ADante, there it is.@  Canava said, AForget it.@  Appellant then pushed Savage=s seat up, went out the window, and he and Canava started firing shots at a residence.  Savage asked Canava if he had shot at the house and Canava laughed in reply.  Savage told Canava that was the reason he had got out of the gangs.  After the shooting, they turned the corner driving fast.  They went to Allsup=s and were heading to the highway when they saw a DPS officer on the side of the road.  The officer began following them and Appellant and Castillo started wiping down the guns with their bandanas.  They tried to hide the guns and Canava put the clips in the glove compartment.  Appellant told Canava to pull into his grandmother=s house.  When they exited the vehicle they were questioned by the officer and the vehicle was later searched.

Savage testified that he is a former member of the West Side Bloods.  He also stated that Castillo is a Bloods gang member and Canava is a member of the Latin King Blood Nation gang.  On cross-examination, Savage recalled that there was no discussion about going out and shooting a house and that it came as a surprise. Savage also stated that Appellant is not a gang member and that he, Savage, was wearing certain gang-associated colors that day because he did not have anything else to wear.

Kim Ogg, former director of the Houston Mayor=s Office Gang Task Force, testified for the State as an expert witness on criminal street gangs and gang violence.  Ms. Ogg explained the initiation process of many gangs. Committing a criminal offense is a common type of gang initiation.  In this initiation process members are often required to commit a random act against an innocent stranger.  Ms. Ogg stated that the Bloods are a criminal street gang whose members continuously associate in the commission of criminal activities. There are identifiable signs and symbols used by the Bloods and the Latin Kings, an affiliation group that is often synonymous with the Bloods.  Wearing the color red is an overt symbol used by the Bloods, while Latin Kings utilize the crown, a five-pointed star, and hand signs reflecting a crown.  Latin Kings use color sometimes.  They will often use red and sometimes royalty colors like gold, purple, and green.

In Ms. Ogg=s opinion from Canava=s clothing at the time of the shooting, his crown ring, and king tattoo, she identified Canava as a member of the Latin King Blood Nation.  Ms. Ogg identified Castillo as a member of the East Side Bloods by the clothing he was wearing and his tattoos.  In Ms. Ogg=s opinion, Appellant is a member of the Bloods because police had reasonable suspicion to believe that he had been involved in criminal activity, he frequents documented areas of criminal street gangs, he associates with known criminal street gang members, he uses criminal street gang dress, and he was arrested or taken into custody with known criminal street gang members.

At trial, Appellant testified that on February 5, 2000, he was living with his girlfriend at his mother=s apartment in Seminole, but moving to Andrews to be closer to his work at a vacuum company.  That day, Appellant had made arrangements with a cousin to help move his girlfriend=s stuff from her family=s home in Hobbs and some of his stuff over to Andrews.  When his cousin did not show up, Appellant=s girlfriend dropped him off at his friend Pete Quiroz=s house.  Appellant was looking for somebody to help him move.  Felipe Castillo, Appellant=s cousin, was at the house.  An hour to two hours later, Canava and Savage showed up.  Castillo volunteered to help Appellant move.  Canava was planning to go to Odessa and Appellant wanted Canava to drop him and Castillo off in Andrews. Appellant admitted that he had his gun, a .22 caliber Colt handgun, with him at the time.  Appellant explained that he did not want to leave the gun in his girlfriend=s car because he was concerned about her little brother finding it.  Appellant asked Canava for a ride over to Seminole because his girlfriend was going to go there to load some more stuff for the move.

Appellant recalled that as they headed toward Seminole to Appellant=s mother=s house, Savage asked him about his gun and asked to see it.  Appellant handed the gun to him.  Castillo also had a gun.  Appellant and his companions were at his mother=s house for about thirty minutes, loading his girlfriend=s car with their stuff.  Afterwards, they went to Wal-Mart where Castillo bought shells for the weapons.  According to Appellant, Canava and Savage wanted to shoot the guns and he had told them, AWell, we can go out there in the country and shoot.@

After leaving the Wal‑Mart, Appellant decided to go by his father=s house because his father has a truck. Savage loaded the magazines for the guns.  Canava was driving and Savage was sitting in the front passenger seat.  At some point, Canava asked Castillo for his gun.  Appellant recalled that Canava said, AF‑‑‑ it@ and then Canava and Savage started shooting at the same time. Appellant had no idea this was going to occur.  When Appellant asked why they did it, they just laughed in reply.  Canava took off and Appellant told him to go to the Allsup=s for gas and to go to Andrews.  They were stopped by the police soon after. Appellant conceded that he knew his cousin Castillo was a gang member, but he denied being a gang member himself, denied hanging out with Castillo and other Blood members, and denied firing a weapon at the Ensor residence.

The State called two rebuttal witnesses, Roy Powers and Detective Stan Durham.  Roy Powers has known Appellant since the eighth grade and they used to run around together six years ago.  Mr. Powers recalled Appellant telling him a few times that he was not afraid to bust a cap in someone.  Appellant also bragged about his homeboys doing drive‑bys, particularly one on a hotel in Hobbs.  Mr. Powers also saw Appellant carrying a red bandana, which he kept in his front pocket. Detective Stan Durham of the Hobbs Police Department testified that on different occasions he has seen Appellant at 210 North McKinley, an area in town associated with the East Side Bloods. Detective Durham has seen Appellant in the company of known Blood members, Castillo and several different Blood gang members.  Detective Durham recalled that on one occasion he saw Appellant Aflying his colors,@ that is, symbolizing that a person associates with a certain gang.  On that occasion, he saw a red flag on the rearview mirror in Appellant=s vehicle.

Sufficiency of the Evidence

In Issue One, Appellant argues the evidence is legally and factually insufficient to support his conviction for engaging in organized activity because the State failed to prove he acted with intent to establish, maintain, or participate in a combination.

In conducting a legal sufficiency review, we examine all the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). Rather, our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22; Menchaca v. State, 901 S.W.2d 640, 650 (Tex.App.--El Paso 1995, pet. ref=d).  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  See Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Menchaca, 901 S.W.2d at 651.

In reviewing a factual sufficiency challenge, we view all of the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We review the evidence supporting a disputed fact and compare it to evidence tending to disprove that fact.  Johnson, 23 S.W.3d at 6-7; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L. Ed. 2d 54 (1997).  While authorized to disagree with the jury=s determination, we must give due deference to the jury=s assessment of the weight and credibility of the evidence to avoid substituting our judgment for that of the fact finder. Johnson, 23 S.W.3d at 8-9; Jones, 944 S.W.2d at 648.  We will set aside a verdict only where the evidence supporting guilt is so obviously weak or the contrary evidence so overwhelmingly outweighs the supporting evidence as to render the conviction clearly wrong and manifestly unjust.  Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901, 155 L. Ed. 2d 824 (2003).

Engaging in Organized Criminal Activity

Appellant was charged by indictment with the offense of engaging in organized criminal activity.  Section 71.02 of the Texas Penal Code provides:

(a)        A person commits an offense [of engaging in organized criminal activity] 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, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle . . . .

Tex.Pen.Code Ann. ' 71.02(a)(1)(Vernon Supp. 2004).

The underlying offense in this case was deadly conduct.^[1]  See Tex.Pen.Code Ann. ' 22.05 (Vernon 2003).  Section 71.01 defines Acombination@ as Athree or more persons who collaborate in carrying on criminal activities . . . .@ See Tex.Pen.Code Ann. ' 71.01(a).  A Acriminal 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.@  See Tex.Pen.Code Ann. ' 71.01(d).

Appellant contends that the State failed to prove he acted with intent to establish, maintain, or participate in  a Acombination.@  The court=s charge to the jury, however, presented the State=s two alternative theories of engaging in organized criminal activity as alleged in the indictment--that Appellant either committed the engaging offense by committing deadly conduct with the intent to participate in a combination with the named individuals or as a member of a criminal street gang.  Based on the charge submitted to the jury, the State need only have sufficiently proven one of the alternative theories of the alleged offense.  In reply, Appellant argues that the State failed to meet its burden with respect to the alternative theory that Appellant committed the offense as a member of a criminal street gang as well.  We observe that in his brief, Appellant only challenged the State=s criminal street gang member theory indirectly by his assertion that there was no proof offered that he was a gang member. In the interest of justice, however, we will entertain Appellant=s complaint as a challenge to legal sufficiency of the Acriminal street gang@ element of the engaging offense.

Two witnesses testified that Appellant was a member of the Bloods because he met the identifying criteria of a Blood gang member. Kim Ogg informed the jury that the Bloods are a criminal street gang whose members continuously associate in the commission of criminal activities.  The Bloods and the Latin Kings, their affiliate gang, have identifiable signs and symbols that mark an individual=s membership in the gang.  Ms. Ogg identified Canava, Savage, and Castillo as members of the Bloods and its affiliate, the Latin Kings.  In Ms. Ogg=s opinion, Appellant meets the criteria for identification as a Blood gang member because he was involved in criminal activity, frequents documented areas of gangs, associates with known gang members, he uses gang dress, and was arrested or taken into custody with known criminal street gang members.  According to Detective Durham, Appellant fits the criteria of membership in the Bloods. On different occasions, Appellant was seen in documented areas associated with the East Side Bloods gang and in the company of known Blood members.  On one occasion, Detective Durham saw Appellant displaying an identifiable symbol associated with the Bloods gang.  We find there was sufficient evidence from which the jury could rationally conclude that Appellant intended to participate in the offense of deadly conduct as a member of a criminal street gang under the engaging statute.  After reviewing all the evidence, we also conclude that it was factually sufficient to sustain Appellant=s conviction as the evidence supporting guilt is not so obviously weak nor overwhelmingly outweighed by contrary evidence as to render the conviction clearly wrong and manifestly unjust.  See Ortiz, 93 S.W.3d at 87. Issue One is overruled.

Accomplice Witness Testimony

In Issue Two, Appellant asserts the accomplice witness testimony offered by Anthony Savage was not corroborated by other evidence. Specifically, Appellant contends that excluding Savage=s testimony, the only other evidence connecting him to the offense of deadly conduct was his presence in the vehicle and his ownership of one of the firearms.

It is undisputed that Savage was an accomplice as a matter of law.  Under Article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it proves merely the commission of the offense.  See Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979); Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999), cert. denied, 528 U.S. 1082, 120 S.Ct 805, 145 L. Ed. 2d 678 (2000).  In reviewing the sufficiency of the corroborating evidence, this Court must eliminate the accomplice testimony from consideration and then examine the remaining evidence to determine whether there is other evidence that tends to connect the accused with the commission of the crime.  Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001); McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L. Ed. 2d 75 (1997).  It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish the defendant=s guilt; it need only tend to connect the defendant to the offense.  See Cathey, 992 S.W.2d at 462; Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992).

Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice witness testimony.  See Cox, 830 S.W.2d at 611. However, evidence of the defendant=s presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense.  Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996).  Evidence that the defendant was in the presence of the accomplice at or near the time or place of the offense is proper corroborating evidence.  McDuff, 939 S.W.2d at 613.  All facts and circumstances in evidence may be looked at to determine whether an accomplice=s testimony is corroborated.  Munoz v. State, 853 S.W.2d 558, 560 (Tex.Crim.App. 1993).  If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.  Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L. Ed. 2d 722 (1993).

In this case, there is sufficient non-accomplice evidence that tends to connect Appellant to the offense.  Savage testified that while driving through a residential neighborhood in Seminole, Appellant and Canava started shooting at a residence.  Janet Smith, a neighborhood resident, testified that after hearing loud bangs, she saw a sporty vehicle filled with people speed away from the scene. Trooper Medrano corroborated Savage=s testimony as to where each passenger was seated in the vehicle and Appellant=s presence with codefendants following the drive-by shooting.  The State also introduced into evidence testimony by Daniel Alaniz, the

Wal-Mart employee who sold Castillo and Appellant the ammunition later recovered from the vehicle.  Mr. Alaniz corroborated Savage=s testimony that Appellant and codefendants went to Wal-Mart on February 5, 2000 and obtained the .22 and .25 caliber bullets later used in the shooting.  Moreover, Appellant=s own testimony corroborated Savage=s testimony.  In his testimony, Appellant recalled similar prior events, including certain moving activities, the

Wal-Mart trip, and the giving of driving directions through the Seminole neighborhood.  We conclude the State met its burden under Article 38.14.  See Cathey, 992 S.W.2d at 463.  Issue Two is overruled.

We affirm the trial court=s judgment.

November 20, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1] A person commits deadly conduct if he or she knowingly discharges a firearm at or in the direction of:  (1) one or more individuals; or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.  See Tex.Pen.Code Ann. ' 22.05(b)(Vernon 2003).