Gonzalez, Juan Antonio ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0983-19
JUAN ANTONIO GONZALEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY
W ALKER, J., filed a dissenting opinion in which S LAUGHTER, J., joined.
DISSENTING OPINION
This case comes back before our Court after we remanded to the court of appeals. Gonzalez
v. State, 544 S.W.3d 363, 375 (Tex. Crim. App. 2018). On remand, the court of appeals overruled
Appellant’s issues which claimed that the evidence is legally insufficient to support his conviction
for murder. Appellant petitions this Court for discretionary review. Because I agree with Appellant
and the dissenting Justice at the court of appeals that the evidence is legally insufficient, I would
grant review. Because the Court does not, I respectfully dissent.
I — Background
2
The basic facts of this case are, essentially,1 that Juan Antonio Gonzalez, Appellant (age 17
at the time), and his two friends, Alan Medrano (age 19) and Juan Gomez (age 18), were walking
home from school in the late afternoon along a sidewalk on the side of a busy residential street. As
they were walking, Gomez “keyed” several parked cars, including the car of Jonathan Molina, a
police officer who was off-duty at the time. Molina, who was not in uniform, emerged angrily from
his house and confronted Gomez. Although there is some dispute as to how angry and
confrontational Molina was and which particular words he said to Appellant, Medrano, and Gomez,
an argument quickly ensued and escalated. Molina shoved Appellant, and Appellant reacted by
punching Molina. Then, Appellant tackled Molina by using a “judo move” to take down Molina by
picking him up by the legs and dropping him. This caused Molina’s head to hit the concrete
sidewalk, and Molina, who weighed 275 pounds, likely did not break his fall in any way. Appellant
got on top of Molina and punched him two or three times in the face. Then Appellant, Medrano, and
Gomez walked away from the scene, and they began running when they heard a bystander say the
police were being called.
The evidence showed that Molina’s head hit the concrete in an area where the surface was
irregular and jutted up “like a teepee.” Molina suffered a brain injury and died ten days later.
According to the medical examiner, Appellant’s punches had nothing to do with the cause of death.
The blow to Molina’s head from hitting the sidewalk was not a survivable injury.
After the fight, Appellant went to an uncle’s apartment and began sending and receiving
messages on Facebook, including messages related to the fight. In messages to his girlfriend,
1
The facts of this case were thoroughly recited in our previous opinion. See Gonzalez, 544
S.W.3d at 365–69.
3
Appellant told her that he might go to jail because he and “two friends walked home and this guy
starting talking shit to us, and at first I told him to back off and he pushed me so I punched him, then
tackled him, then punched him again.” Appellant also said that “It’s not my fault tho he was like 30
and twice my size, . . . I’m really really really scared” and “I shouldn’t have hit him, I don’t know
what I was thinking.” He told his girlfriend that they ran when they saw the man twitching and
bleeding. After hearing a news report that Molina had died, Appellant messaged Medrano that, “I
hope u didn’t get caught I killed the guy, he went into compulsions and died.” When later accounts
reported that Molina was alive, Appellant messaged, “Dude turn on the news there’s all this crap
going on.” Appellant claimed he was going to turn himself in the next day, but police located and
arrested him at 3:00 a.m.
At trial, Medrano testified that he and Appellant routinely taught each other and practiced
boxing and judo moves. He testified that Appellant taught him how to take down someone bigger
by grabbing their legs and dropping them, causing the person to fall on their own weight, allowing
the person who executed the move to climb on top of the downed individual. Medrano said he and
Appellant would wrestle and practice moves while hanging out at home.
Appellant was charged with capital murder, but the jury convicted him of the lesser offense
of murder. After we remanded this case back to the court of appeals,2 that court considered, among
other issues, Appellant’s challenge that the evidence was legally insufficient to support the murder
conviction. The court of appeals disagreed and found that there was legally sufficient evidence to
2
Id. at 375.
 4
show that Appellant either intended to cause Molina’s death,3 or, while intending to cause serious
bodily injury to Molina, committed an act clearly dangerous to human life that caused Molina’s
death.4 Gonzalez v. State, No. 08-14-00293-CR, 2019 WL 1553583 at *5–9 (Tex. App.—El Paso
Apr. 10, 2019) (not designated for publication). Justice Rodriguez dissented. Gonzalez, 2019 WL
1553583 at *21 (Rodriguez, J., dissenting). She agreed with Appellant that the evidence was
insufficient to show murder. Id. Instead, she thought the evidence was sufficient to support
manslaughter, and she would have reformed the judgment to reflect a manslaughter conviction and
remanded for a new punishment hearing. Id.
II — Sufficiency of the Evidence
In assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts
“consider all the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44
(Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007));
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard requires the appellate court to defer “to
the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Zuniga v. State, 551
S.W.3d 729, 732 (Tex. Crim. App. 2018) (quoting Jackson, 443 U.S. at 319). Each fact need not
3
See TEX . PENAL CODE Ann. § 19.02(b)(1) (“A person commits an offense if he . . .
intentionally or knowingly causes the death of an individual”).
4
See id. § 19.02(b)(2) (“A 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”).
5
point directly and independently to guilt if the cumulative force of all incriminating circumstances
is sufficient to support the conviction. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018)
(citing Hooper, 214 S.W.3d at 13). It is not necessary that the evidence directly prove the defendant’s
guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant’s guilt,
and circumstantial evidence can alone be sufficient to establish guilt. Id.
An appellate court cannot act as a thirteenth juror and make its own assessment of the
evidence. Id.; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Instead, the appellate
court’s role is restricted to guarding against the rare occurrence when the factfinder does not act
rationally. Nisbett, 552 S.W.3d at 262; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
This rationality requirement is a key, explicit component of the Jackson sufficiency standard. See
Jackson, 443 U.S. at 319 (“[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”) (emphasis added).
Thus, a reviewing court is not to simply determine whether there is evidence that supports
the verdict, and, if so, declare that the evidence is legally sufficient. “[T]he Jackson v. Virginia
standard is not a ‘no evidence’ standard.” Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim. App. 2000)
(McCormick, P.J., dissenting). The Jackson standard “requires the reviewing court to consider all
the evidence in the ‘light most favorable to the verdict,’ and then it requires the reviewing court to
decide whether the jury’s finding is ‘rational.’” Id. (emphasis in original).5
5
“[A]ll of the evidence is to be considered.” Jackson, 443 U.S. at 319 (emphasis in original);
McDaniel v. Brown, 558 U.S. 120, 131 (2010) (“a reviewing court must consider all of the evidence
admitted at trial when considering a Jackson claim”). Thus, an argument that “direct and
circumstantial evidence against the jury’s verdict is ignored” in a proper Jackson sufficiency review
“is a misstatement of the law. In a legal-sufficiency analysis, no evidence is ‘ignored’ because the
6
Accordingly, while “[w]e are not to sit as a thirteenth juror reweighing the evidence or
deciding whether we believe the evidence established the element in contention beyond a reasonable
doubt . . . we are to ask ourselves whether the trier of fact, acting rationally, could have found the
evidence sufficient to establish the element beyond a reasonable doubt.” Blankenship v. State, 780
S.W.2d 198, 207 (Tex. Crim. App. 1988) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.
App. 1988)). “It is the obligation and responsibility of appellate courts ‘to ensure that the evidence
presented actually supports a conclusion that the defendant committed the crime that was charged.’”
Ross v. State, 543 S.W.3d 227, 234 n.14 (Tex. Crim. App. 2018), and Reynolds v. State, 543 S.W.3d
235, 241 n.10 (Tex. Crim. App. 2018) (both quoting Winfrey v. State, 323 S.W.3d 875, 882 (Tex.
Crim. App. 2010)); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “[W]e test the
evidence to see if it is at least conclusive enough for a reasonable factfinder to believe based on the
evidence that the element is established beyond a reasonable doubt.” Blankenship, 780 S.W.2d at
207 (citing Jackson, 443 U.S. at 318).
III — Could a Rational Jury Infer Intent to Cause Death?
“Although the question is an exceedingly close one,” the court of appeals concluded that a
rational jury could find intent to cause death from evidence that Appellant got on top of Molina after
the takedown and evidence that Appellant left the scene.
The court of appeals found it important that after Appellant tackled Molina, Appellant got
on top of Molina and punched him two or three more times. Citing Hall v. State, the court of appeals
took this as evidence of striking a helpless victim, which raises an inference that a fatal blow was
standard requires a reviewing court to view all of the evidence in the light most favorable to the
verdict.” Cary v. State, 507 S.W.3d 750, 759 n.8 (Tex. Crim. App. 2016) (emphasis in original).
7
struck intentionally or knowingly. See Hall v. State, 970 S.W.2d 137, 140 (Tex. App.—Amarillo
1998, pet. ref’d). But while Hall did take into account evidence that the defendant struck the victim
after the victim was rendered helpless as evidence supporting intent to cause death, the Hall court
had much more than the additional strikes. The Hall court found “ample” evidence, consisting of:
1) the disparity in size between [Hall] and Draper, 2) [Hall’s] repeated hitting and
kicking of Draper as he sat on the ground in a stupor unable to defend himself, 3)
[Hall’s] yelling at Draper during the assault, 4) the great force of the blows as
evinced by [a witness’s] ability to hear them from inside her house, 5) [Hall’s] attack
upon those who interceded, 6) the dire nature of Draper’s injuries, 7) [Hall’s]
callousness towards his victim as evinced by the decision to leave the injured man
on the ground and take his car once the beating ended, and 9) [Hall’s] resumption of
the attack after coming back to the house to retrieve cigarettes.
Id. While there are some similarities between Hall and this case, the differences between the facts
of Hall and the facts of Appellant’s case are apparent. For instance, Appellant was smaller than
Molina. Additionally, Appellant’s fight with Molina was, by all accounts, very short-lived, whereas
the assault in Hall lasted five to fifteen minutes. Id. at 139. And, perhaps most significantly, the Hall
court made sure to note that:
That the medical expert testified to various possible causes of the resulting head
trauma and death does not change our conclusion. This is so because no one
presented evidence indicating that Draper fell and struck his head. Nor was evidence
presented indicating that anyone other than appellant struck the decedent.
Id. at 140. This case has exactly that evidence—Molina fell and struck his head on the sidewalk. This
was the sole cause of Molina’s death. In contrast, the medical expert in Hall opined that the victim
in that case, Draper, died from cranial hemorrhaging caused by blows to the head that, although
could have been caused by a fall, could have also been caused by a fist or a foot. Id. at 139. Hall is
distinguishable, and the court of appeals erred by relying on it to find intent to cause Molina’s death.
The court of appeals also relied on Phillips v. State to find intent to cause Molina’s death,
8
based upon evidence that Appellant left the scene, even though he knew that Molina was seriously
hurt. See Phillips v. State, 216 S.W.2d 213 (Tex. Crim. App. 1948). In Phillips, Phillips, the victim,
and a third man spent the night drinking in a rural area several miles east of Wichita Falls. Id. at 214.
Eventually, they got into a “difficulty” and the victim was knocked to the ground. Phillips and the
other man then returned to Wichita Falls, leaving the victim lying helpless in an unconscious or
semi-unconscious state on the side of the highway. Id. The victim’s dead body was discovered the
next morning in a barrow ditch. Id. We noted that the evidence showed that Phillips struck the
deceased three or four times with blows of great force, rupturing almost all of the arteries in the
brain. Id. We also noted that, after knocking the victim down, rendering him helpless and in an
unconscious or semi-conscious condition, Phillips dragged the victim to the edge of the road and left
him lying there. Id. We found that intent to kill could be inferred from those facts. Id.
But just as Hall is distinguishable from this case, so too is Phillips. Unlike in Phillips, the
fight between Appellant and Molina occurred in the afternoon on a well-traveled road in a residential
area, and Appellant did not try to hide Molina’s body. Furthermore, the fight occurred in plain view
of neighbors and drivers on the road. But of those people, the court of appeals pointed out that
“Appellant had no basis to know the bystanders’ competence or willingness to assist the downed
man.” But the evidence showed that Appellant knew the bystanders were willing to assist Molina.
A woman on the porch of a nearby house was told to call the police, and two of the witnesses
actually called 9-1-1 for help. And not only was help called for, help did arrive and take Molina to
the hospital. This case is different from Phillips. The fact that Appellant and his friends left Molina
on the sidewalk, while bystanders were gathering around and some of which were calling 9-1-1, does
not reflect an intent to leave the man for dead.
9
Instead of being evidence of Appellant’s mental state during the fight, the evidence that
Appellant left the scene reflects his mental state after the fight. Indeed, the court of appeals took the
fact that Appellant left the scene, in combination with evidence showing that Appellant was later
aware that the police were looking for him that evening but stayed home, as evidence of flight. The
court of appeals correctly noted that evidence of flight from the scene of a crime is a circumstance
from which an inference of guilt may be drawn. Appellant argued that he left the scene because he
thought he might get into trouble, but the court of appeals discounted this explanation because “the
trier of fact was not required to accept” it.
If the trier of fact was not required to accept that explanation, what other explanation could
there be? Fleeing the scene of a crime to avoid getting into trouble is the very reason evidence of
flight is relevant and probative of guilt. Evidence of flight shows that the defendant knew that
something bad happened and that, because he could get in trouble for it, he ran to avoid getting into
trouble. This makes evidence of flight useful to prove guilt where the defendant claims no
knowledge of or no involvement in the crime—if he wasn’t involved, why would he run and hide?
Appellant’s argument, that he left the scene because he thought he might get into trouble, is
exactly the inference that can be made from evidence of flight. Such evidence of flight does no more
than show that he caused Molina’s injury. This was never in dispute. What the evidence of flight
does not do is show that Appellant intended to cause Molina’s death.
In sum, I disagree with the court of appeals that the evidence was legally sufficient to show
that Appellant intended to cause Molina’s death.
IV — Could a Rational Jury Infer Intent to Cause Serious Bodily Injury?
The court of appeals found that intent to cause serious bodily injury could be inferred from
10
the evidence that Appellant took Molina’s legs out from underneath him while on a concrete surface,
after which Appellant hit Molina in the face while his head was against the ground. According to the
court of appeals, “[t]hese actions raise at least an inference of acting with the conscious objective
or desire to create a substantial risk of death through causing serious bodily injury.” Gonzalez, 2019
WL 1553583 at *8.
The court of appeals’s conclusion, I believe, is not based upon a consideration of all of the
evidence. The evidence includes not just the fact that Appellant used the takedown move on Molina
on an uneven concrete surface, but also evidence showing that Appellant and Medrano regularly used
the same takedown move on each other without injury. A rational jury could not conclude that
Appellant intended serious bodily injury through the use of the takedown move.
When Medrano was fourteen or fifteen years old, he had trained for five or six months at a
boxing gym, and Medrano shared the moves he learned at boxing with Appellant. Gonzalez, 544
S.W.3d at 368. Similarly, Appellant showed Medrano judo moves that he learned from taking two
to three months of judo classes years before the incident. Id. One of the moves involved taking a
person down by grabbing their legs, picking them up, and using their own force against them. Id. The
two would practice and teach each other these skills two to three times a week. Id.
While the State presented evidence that Appellant and Medrano had practiced these
takedown moves, from which a rational jury could infer that Appellant was aware that the takedown
move would cause the other person to fall down, the State failed to present any evidence to show that
Appellant knew the move could cause injury, much less serious bodily injury. There was no evidence
that Appellant, Medrano, or anyone else was injured as a result of the move before Appellant used
the move on Molina in this case. The State also failed to present evidence that Appellant was, at the
11
very least, aware that using the move could cause an injury, even though the move never did in his
personal experience. Instead, the evidence produced at trial showed that the takedown move, while
practiced by Appellant and Medrano, did not cause injury, let alone a fatal head injury. Medrano and
Appellant’s repeated practices of the move upon each other without injury shows that Appellant was
unaware that the move could cause serious bodily injury. If Appellant was unaware that the
takedown move could cause an injury, how could he have had an intent to cause serious bodily injury
through use of that very same move? If, instead, there was evidence that Appellant, while teaching
and practicing the move with Medrano, discussed with Medrano about the dangers of the move
especially when performed on hard surfaces, the evidence would at least show he was aware of a
risk, and a jury could infer that he consciously disregarded the risk by his use of the move on Molina
in this case. Of course, such direct evidence of risk awareness is not always available, and awareness
of a risk can be inferred from circumstantial evidence.
Justice Rodriguez, in her dissent below, found that Appellant’s use of the takedown move
on the sidewalk constituted conscious risk creation sufficient to support manslaughter. Gonzalez,
2019 WL 1553583 at *21. But manslaughter, which is defined as the reckless causing of death,6
requires not only conscious disregard of a risk but also awareness of that risk.7 Is there circumstantial
evidence from which the jury could infer awareness and thus recklessness? Arguably, there is.
Appellant and his friends were walking along the concrete sidewalk, and they had to be aware that
6
See TEX . PENAL CODE Ann. § 19.04(a) (“A person commits an offense if he recklessly
causes the death of an individual.”).
7
See TEX . PENAL CODE Ann. § 6.03(c) (“A person acts recklessly . . . with respect to . . . the
result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable
risk that . . . the result will occur.”).
12
the sidewalk was made of concrete. And as discussed above, Appellant was aware that the takedown
move would cause the person it is used upon to fall. Thus, while the evidence is insufficient to
support murder, the dissent below raises a strong point that the evidence supports manslaughter, at
the most. Her suggestion to consider the possibility of reforming the judgment to show a conviction
for manslaughter is another reason to grant review.
While the evidence probably shows that Appellant was reckless, it undoubtedly shows that
Appellant should have been aware that the moves he practiced with Medrano had the potential to be
dangerous. And Appellant should have been aware that performing the move outdoors on a sidewalk
was dangerous. But “should have been aware” makes a case for criminal negligence,8 not intent to
cause serious bodily injury.
IV — Was the Takedown an Act Clearly Dangerous to Human Life?
Even if Appellant caused Molina’s death while harboring a specific intent to cause serious
bodily injury, such intent alone is not enough to support a conviction for serious-bodily-injury
murder under § 19.02(b)(2). The second element of prosecution under § 19.02(b)(2) requires a
showing that the individual commits an act clearly dangerous to human life. Lugo-Lugo v. State, 650
S.W.2d 72, 81 (Tex. Crim. App. 1983). The character of the act clearly dangerous to human life is
measured by an objective standard. Id. I have reservations as to whether Appellant’s act in this
case—the takedown of Molina—meets that standard.
The jury heard evidence that Appellant and Medrano routinely practiced takedown moves
with each other without incident. The jury did not hear evidence that the move used by Appellant
8
See TEX . PENAL CODE Ann. § 6.03(d) (“A person acts with criminal negligence . . . with
respect to . . . the result of his conduct when he ought to be aware of a substantial and unjustifiable
risk that . . . the result will occur.”).
13
was inherently dangerous, let alone clearly dangerous to human life. Instead, the jury was presented
with evidence that the move was dangerous in this case, performed under the particular circumstance
of an uneven concrete surface. Outside of that circumstance, the takedown move was relatively safe,
and the evidence presented to the jury proves the point—there was one fatal injury against a context
of numerous unremarkable uses of the move without injury.
Nevertheless, the court of appeals concluded that “undercutting someone’s feet in a way that
they might fall without the ability to brace themselves, and fall on a hard-uneven surface” is an act
clearly dangerous to human life. This was in contrast to situations in which the court of appeals
apparently would have found the very same takedown move to not be an act clearly dangerous to
human life, such as “a student felled in a padded Judo studio, or a gridiron running back who is
protected by padding and expecting a tackle.” Gonzalez, 2019 WL 1553583 at *9. The court of
appeals’s approach, finding that the takedown move is an act clearly dangerous to human life under
the specific circumstances of this case while on the other hand acknowledging that the same act is
safe in other circumstances, warrants review.
V — Conclusion
In conclusion, I would grant Appellant’s petition. The evidence in this case is, from the
record before us, insufficient to support a rational jury conclusion that Appellant intended to cause
death or intended to cause serious bodily injury, and the evidence may also be insufficient to support
a conclusion that Appellant’s takedown of Molina was an act clearly dangerous to human life.
Because the Court refuses review, I respectfully dissent.
Filed: April 8, 2020
14
Do Not Publish