Jerry Perez, Jr. v. State ( 2009 )

NUMBER 13-08-00037-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JERRY PEREZ, JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides
Memorandum Opinion by Justice Yañez
A jury convicted appellant, Jerry Perez, Jr., of murder and engaging in organized
criminal activity.1 By two issues, appellant contends that: (1) there was legally insufficient
evidence to support the conviction of engaging in organized criminal activity; and (2) his
double jeopardy rights were violated. We reverse the conviction of engaging in organized
1
See T EX . P EN AL C OD E A N N . §§ 19.02, 71.02(a) (Vernon 2003).
criminal activity and render an acquittal as to that charge.2
I. BACKGROUND
Appellant, and his girlfriend, Angie Marie Castillo, were walking past a house on
Gardenia Street where approximately fifteen men were sitting outside. There was
evidence that some of the men were members of the "Vallucos" gang. As appellant and
Castillo passed the house, one of the men, whom Castillo identified as "Tomas," grabbed
her bottom. In his video statement to police, appellant claimed that one of the men spit at
him and that some of the men had knives. Appellant and Castillo walked away.
Subsequently, appellant called his friend, "Flaco," and they contacted several members of
the "Texas Syndicate" gang. Flaco picked up several men in a black Lincoln, including
Juan Gerardo Gonzalez. Gonzalez testified that when they picked up a man named
"Basuldo" or "Basaldo Galvan," either appellant or Flaco asked him to get a gun. Galvan
complied, and the group drove to the house on Gardenia Street. Gonzalez and another
man followed the Lincoln in a minivan. Appellant was in the Lincoln with Castillo, Flaco,
Galvan, and another man. Gonzalez testified that when they arrived at the house on
Gardenia, he saw Galvan fire in the direction of the house, and that when "they unloaded
[the gun]," the Lincoln "took off." According to Gonzalez, one of the men who had been
standing in front of the house then "pulled-out a sawed-off shotgun" and started shooting
at the Lincoln. When the shooting stopped, the men in the minivan drove away.
Jose Angel Torrez, who was standing in front of the house, died as a result of a
gunshot wound to the chest. The jury was instructed that appellant was guilty of engaging
in organized criminal activity if he committed the offense of murder "with the intent to
2
Appellant does not challenge his conviction of m urder.
2
establish[,] maintain[,] or participate in a combination[,] or in the profits of a combination
who collaborated in carrying on said criminal activity . . . ."3 The jury convicted appellant
of murder (Count I) and engaging in organized criminal activity (Count II). The trial court
sentenced appellant to forty years' confinement on both counts to be served concurrently.
This appeal ensued.
II. Discussion
By his first issue, appellant contends that the evidence was legally insufficient to
support his conviction of engaging in organized criminal activity. The State agrees with
appellant and requests that this Court vacate appellant's conviction of engaging in
organized criminal activity.
The offense of engaging in organized criminal activity is committed "if, with the intent
to establish, maintain, or participate in a combination or in the profits of a combination, he
commits or conspires to commit one or more [enumerated offenses]."4 A "combination"
is defined as "three or more persons who collaborate in carrying on criminal activities."5
However, "collaborate in carrying on criminal activities" does not include an agreement to
jointly commit a single crime.6 In other words, to establish participation in a combination,
the State may not simply prove that the appellant committed or conspired to commit one
3
See T EX . P EN AL C OD E A N N . § 71.02 (providing that one is guilty of engaging in organized crim inal
activity if he or she com m its or conspires to com m it m urder "with the intent to establish, m aintain or participate
in a com bination or in the profits of a com bination, or as a m em ber of a crim inal street gang."). W e note that
the State did not allege that appellant was a m em ber of a crim inal street gang.
4
Nguyen v. State, 1 S.W .3d 694, 695 (Tex. Crim . App. 1999) (en banc).
5
T EX . P EN AL C OD E A N N . § 71.01(a) (Vernon 2003).
6
Nguyen, 1 S.W .3d at 697.
3
of the enumerated offenses with two or more other people.7 Instead, the State must prove
that the appellant, with a group of three or more, intended "to work together in a continuing
course of criminal activities," which "implies continuity—something more than a single, ad
hoc effort."8
Here, there is no evidence that appellant intended to work together with the group
in a continuing course of criminal activities. The evidence presented proved that appellant
conspired to commit a single act, a "drive-by" shooting, with two or more people, which
resulted in the death of Torrez. The State concedes that this single criminal act does not
establish the continuity required to establish the elements of the offense of engaging in
organized criminal activity. Accordingly, after carefully reviewing the record in the light
most favorable to the verdict, we conclude that a rational jury could not have found the
evidence sufficient beyond a reasonable doubt to prove that appellant engaged in
organized criminal activity.9 We sustain appellant's first issue.10
III. CONCLUSION
We reverse the trial court's judgment as to Count II, engaging in organized criminal
7
Id.
8
Id. at 696-97; Arredondo v. State, 270 S.W .3d 676, 683 (Tex. App.–Eastland 2008, no pet.) ("[A]
com bination requires proof of m ore than working jointly to com m it a crim e but requires proof of continuity.").
9
See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
10
By his second issue, appellant contends that his right against double jeopardy was violated when
he was convicted of both m urder and engaging in organized crim inal activity. Having acquitted appellant of
engaging in organized criminal activity, we need not address appellant's second issue, as it is not dispositive
of this opinion. See T EX . R. A PP . P. 47.1. Furtherm ore, the rem edy for a double jeopardy violation "is to retain
the m ost serious offense and vacate the other, the m ore serious offense ordinarily being defined as the
offense for which the greatest sentence was assessed." Littrell v. State, 271 S.W .3d 273, 279 (Tex. Crim .
App. 2008).
4
activity, and render an acquittal as to that charge.11 This leaves standing the judgment
against appellant for murder in the same trial court. None of the appellant's issues
challenged this conviction. Thus, our ruling today relates only to the conviction for
engaging in organized criminal activity.
LINDA REYNA YAÑEZ,
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 19th day of November, 2009.
11
See T EX . R. A PP . P. 43.2(c); Nguyen v. State, 977 S.W .2d 450, 455 (Tex. App–Austin 1998), aff'd,
1 S.W .3d 694).
5