George Garcia, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: February 18, 2015
• Docket: 04-13-00874-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00874-CR

George GARCIA, Jr., Appellant

v.

The STATE of Texas

From the 2nd 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 12-2210-CR-C Honorable W.C. Kirkendall, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: February 18, 2015

AFFRIMED

A grand jury indicted George Garcia for assaulting Jacob Andrade with a deadly weapon

“as a member of a criminal street gang.” Garcia was tried by jury and convicted of engaging in

organized criminal activity. Garcia appeals his conviction. Although he admits the evidence

supported a finding that he committed the underlying offense of aggravated assault, he argues the

evidence was legally insufficient to show he committed the offense as part of a continuing course

of criminal activities. We affirm. 04-13-00874-CR

STANDARD OF REVIEW

In reviewing the legal sufficiency of the evidence, we ask whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We review the evidence “in the light most favorable to the verdict.” Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal is restricted to guarding against the

rare occurrence when a factfinder does not act rationally,” and we must “defer to the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010) (internal quotation marks and citations omitted).

ENGAGING IN ORGANIZED CRIMINAL ACTIVITY

“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, the person commits or conspires to commit [aggravated

assault].” TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2014). A “criminal street gang” is “three

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. PENAL CODE

ANN. § 71.01(d) (West 2011). The statute requires the State to prove intent to “‘establish, maintain,

or participate in’ either a combination or a criminal street gang.” Barrera v. State, 321 S.W.3d

137, 152 (Tex. App.—San Antonio 2010, pet. ref’d). Evidence of a gang-related tattoo and

affiliation with confirmed gang members may demonstrate participation in a criminal street gang.

See id. at 153.

The evidence at trial showed that Jacob Andrade visited his ex-wife to pay child support

and encountered Garcia and another man named Abel Lomas, who were selling drugs to one of -2- 04-13-00874-CR

Andrade’s children. Andrade confronted Garcia and Lomas and, using profanities, told them not

to sell drugs to his family in the future. A few weeks later, Andrade again encountered Garcia in a

restroom at a bar in Marion. When Andrade exited the restroom, Garcia, Lomas, and Juan Beza

were waiting for Andrade. Andrade pulled out a knife when he saw Garcia had a pocketknife in

his hand, but the situation deescalated. The following month, Andrade again encountered Garcia,

who was accompanied by Lomas, Beza, and another man named Jessie Flores, at a bar in Seguin.

Garcia smashed a Heineken bottle into the side of Andrade’s head. Andrade was then pulled up on

stage where he was further assaulted.

Several witnesses testified Garcia was affiliated with the Mexican Mafia. Amy Valadez,

Andrade’s girlfriend, testified Garcia sold drugs for the Mexican Mafia. Cathy Gonzalez,

Andrade’s mother, testified she sought out members of the Mexican Mafia to have them order

Garcia to stop harassing her son because, as she testified, Garcia was a member. Detective Clinton

Haldbardier testified about the Mexican Mafia. He testified Lomas and Flores were confirmed

members of the Mexican Mafia. Haldbardier further testified that the group known as Tango

Orejon was a Mexican Mafia-related prison gang. He testified Garcia had “Orejon” tattooed on his

arm and another tattoo relating to Tango Orejon behind his ear. Haldbardier described the latter

tattoo as covered by another tattoo indicating Garcia had either renounced membership with Tango

Orejon or sought to become a member of the Mexican Mafia. Detective Jaime Diaz testified that

the Mexican Mafia was a criminal organization with more than three people that had common

identifying signs or symbols and an identifiable leadership. The evidence supports Garcia assaulted

Andrade for attempting to interfere with gang-related drug activities. Thus, a rational jury could

have found Garcia assaulted Andrade as a member of a criminal street gang.

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CONCLUSION

We affirm the trial court’s judgment.

Luz Elena D. Chapa, Justice

DO NOT PUBLISH

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