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<P><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><CENTER></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>NUMBER 13-09-121-CR</CENTER>
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<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>COURT OF APPEALS</CENTER>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>CORPUS CHRISTI</STRONG></SPAN><SPAN STYLE="font-family: Arial"> - </SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG>EDINBURG</STRONG> </SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"></CENTER>
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<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG> </STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>JESUS GONZALEZ, JR., Appellant,</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>v.</CENTER>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>THE STATE OF TEXAS, Appellee.</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG> </STRONG></SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>On appeal from the 197th District Court </STRONG></SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>of Cameron County, Texas.</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG> </STRONG></SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG></STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG>MEMORANDUM OPINION</STRONG></SPAN><SPAN STYLE="font-family: Arial"><STRONG></STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial"><CENTER><STRONG>Before</STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG> Chief Justice Valdez and Justices Benavides and Vela</CENTER>
<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>Memorandum Opinion by Justice Vela</STRONG></SPAN><SPAN STYLE="font-family: Arial"></CENTER>
<P><SPAN STYLE="font-family: Arial"> </SPAN><SPAN STYLE="font-family: Arial">A jury convicted appellant, Jesus Gonzalez, Jr., of engaging in organized criminal
activity, a first-degree felony. <EM>See</EM> Tex. Penal Code Ann. 71.02(a)(1), (b) (Vernon Supp.
2009). After a punishment hearing, the jury assessed punishment at life imprisonment,
plus a $10,000 fine. <EM>See id</EM>. 12.32(a),<A HREF="#N_1_"><SUP> (1)</SUP></A></SPAN><SPAN STYLE="font-family: Univers Medium"> (b).<A HREF="#N_2_"><SUP> (2)</SUP></A> In two issues, appellant challenges the legal
and factual sufficiency of the evidence supporting his conviction. We affirm.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"><CENTER><STRONG>I. Factual Background</STRONG></CENTER>
<P><SPAN STYLE="font-family: Arial"> This case involves the murder of Jo Ann Chavez, who associated with members of
a gang called the "Mexican Mafia." On August 18, 2005, authorities exhumed her skeletal
remains<A HREF="#N_3_"><SUP> (3)</SUP></A> buried in a shallow grave on the outskirts of Raymondville, Texas. About 11:00
a.m. on November 17, 2003, Chavez called a friend, Norma Cano, stating that she and
"Polo" were in Raymondville. After that conversation, Cano and Chavez spoke by
telephone "off and on" until about 5:00 p.m. that day. At that time, Chavez told Cano she
could not talk and hung up the phone. About two days later, Chavez's common-law
husband, Graciano Castaneda, reported Chavez as a missing person to the Harlingen
Police Department. Shortly thereafter, police recovered Chavez's car at Valle Vista Mall
in Harlingen, Texas.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Ranger Victor Escalon, Jr., the lead investigator in this case, testified that Polo's
name was Marcos Solis and obtained a statement from Solis's girlfriend, who stated that
Solis told her he had seen Chavez on November 17, 2003. However, when he spoke to
Solis about Chavez's disappearance, Solis denied knowing anything. </SPAN></P>
<P><SPAN STYLE="font-family: Arial"> A break in the case came on August 10, 2005, when Luis Carlos Mares, a Mexican
Mafia sergeant, provided a statement to Ranger Escalon, stating that Willie Padilla, a
Mexican Mafia captain, "put the hit on Jo Ann Chavez." Padilla ordered her murder
because: (1) he believed she was talking to the police about his drug deals; (2) she was
having an affair with him; (3) she set up a drug deal with him and a rival gang member that
violated Mexican Mafia rules; and (4) the rival gang member "was going to rip off" Padilla.
Mares told Ranger Escalon that he and several other Mexican Mafia members committed
the murder and that before she died, Solis tried to pistol whip her but missed and hit the
car that Solis drove to the crime scene. Ranger Escalon found a "dent or impression" on
Solis's car where Mares told him to look. Ranger Escalon opined that this "indentation"
was consistent with the rear sights of a pistol striking the car. After Mares provided the
statement to Ranger Escalon, Mares took him to Chavez's grave.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> In April or May 2006, Mares gave a second statement in which he took "full
responsibility" for Chavez's murder. Mares explained to Ranger Escalon that Oscar
Salazar and Ricardo Reyes "pressured" him into making this second statement and that
if he did not cooperate, "something" could happen to either him or his family. </SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Both Mares and a Mexican Mafia prospecto, Ricardo Davila, testified against
appellant. Mares had been associated with the Mexican Mafia for nine years. He testified
that the Mexican Mafia is a "criminal gang" that engages in racketeering, extortion, and
murder. When the prosecutor asked him, "How do you begin in that organization?", he
said that a person has to go through a "process," starting as "<EM>Esquina</EM>." Next, the person
advances to "<EM>Prospecto</EM>" and then he becomes a "<EM>Carnal</EM>." The Mexican Mafia had a
ranking structure, starting with president and then to vice-president, general, captain,
lieutenant, sergeant, and "the original members." To advance in the Mexican Mafia, a
person must perform "<EM>Camellos</EM>," which "are like hits, all kinds of extortion and all kinds of
crimes." Mares achieved the rank of sergeant, which meant that if there was an
assignment, such as a murder, kidnapping, or drug trafficking, he had "to make sure it was
organized and carried out."</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> At the time of Chavez's murder, the persons whom Mares knew as his associates
in the Mexican Mafia were Willie Padilla, the captain of the Mexican Mafia from Houston
down to the Rio Grande Valley, Esteban Salazar, a Mexican Mafia lieutenant, Ricardo
Velasquez, Marcos Solis, Bernardo Cortez, Ricardo De La Rosa, May Trevino, Ricardo
Davila, and appellant. Mares knew appellant to be a prospecto in the Mexican Mafia. He
testified that this "group of men" were involved in some of the criminal activities engaged
in by the Mexican Mafia. Mares said that appellant accompanied him on kidnapings, drug
trafficking, and Chavez's murder. </SPAN></P>
<P><SPAN STYLE="font-family: Arial"> At some point, Padilla told Mares, Salazar, and Velasquez that they had to kill
Chavez. On November 17, 2003, Velasquez and De La Rosa told Mares that Solis and
Chavez were in Raymondville. Mares drove to Salazar's home, where he met Salazar,
Velasquez, De La Rosa, Cortez, and appellant. At this meeting, Mares, Velasquez, and
Salazar discussed information about Chavez. Afterwards, Mares, Cortez, and appellant
drove to Trevino's house in Raymondville and picked up Trevino and a shovel. They drove
to a field outside of Raymondville, where Mares saw Solis and Chavez, standing in front
of Solis's car. Chavez's legs were tied, and her wrists were tied behind her back. Solis
pistol whipped her, and she fell to the ground. Solis strangled her while appellant "was on
top of her legs, on her knees, holding her down."</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Davila, a Mexican Mafia prospecto, testified that on November 17, 2003, between
10:00 p.m. and 11:30 p.m., he received a call from Trevino and Mares, asking him to bring
"some shovels" to the crime scene. When he arrived, Cortez and appellant helped him dig
a "hole" that would serve as Chavez's grave. Afterwards, Cortez, Solis, Mares, and
appellant drug her body to the hole. Appellant grabbed her feet and drug her into the hole.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> In 2005, appellant and Carlos Arriola, an ex-Mexican Mafia member, were
incarcerated in the same facility. When the prosecutor asked him if appellant told him
anything about Chavez's murder, Arriola said:</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> He told me . . . that one of his [appellant's] friends . . . picked her up
at the Harlingen Mall. They were partying, they were drinking, and they took
her where he was at. And after that, they took her to some place over there
in Raymondville and buried her. They killed her. They hit her with a gun on
her head and some bricks and killed her.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> * * * *</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> And for him [appellant], in order to get up-to move up in the Mexican Mafia,
it was like he was a puppy and he had to do that command. So that's what
he did. So that's what he did to be in the Mexican Mafia.</SPAN></P>
<P><SPAN STYLE="font-family: Arial">When the prosecutor asked him why he was telling this to the jury, he said, "I'm doing it
because that was not right, what he told me, and the way he put it, and the way he let me
know that he killed her, they killed her with no remorse, . . . ."</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Ranger Escalon testified his investigation revealed that appellant "confessed to"
Arriola. During that confession, appellant "stated what occurred, that he was present, that
he held her [Chavez] down, that she was buried, that they put bricks on top of her, it was
raining that night, and the reason why she was killed." Ranger Escalon testified that these
details were not made known to the public and that when authorities exhumed Chavez's
body, they found bricks on top of her body.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Angelita Ontiveros, Chavez's sister and Padilla's ex-girlfriend, testified that prior to
Chavez's disappearance, she, Solis, and Salazar were at Padilla's home. She overheard
them say that Chavez "was nothing but a bitch and a slut" and that "she was fucking up."
She also heard them say "[t]hat something had to be done." On cross-examination, she
testified that in 2005 or 2006, Padilla wrote her a letter, stating that he had "an affair" with
Chavez. </SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Rosalva Luz Gallegos, appellant's ex-wife, testified that appellant was a Mexican
Mafia member in November 2003. That month, appellant "put some clothes in a barbecue
pit and began to burn the clothes." She described the clothes as "Dickies pants and tennis
shoes." When the prosecutor asked her, "What were you thinking?", she said, "Just that
he [appellant] must have done something wrong and he's trying to get rid of the evidence
somehow."</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Ranger Escalon testified that he interviewed Gallegos and "learned that around the
time Jo Ann Chavez came up missing, the defendant was burning clothes. When he was
burning the clothes, he made it look like he was having a barbecue."</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Chavez's autopsy<A HREF="#N_4_"><SUP> (4)</SUP></A> report showed she had facial-bone fractures, a hyoid-bone
fracture, and rib fractures. It listed the cause of death as "homicidal violence with blunt
force trauma of the head, neck, and chest." Detective Rick Gonzalez attended the autopsy
and testified that Dr. Marguerite DeWitt<A HREF="#N_5_"><SUP> (5)</SUP></A> "advised" him "that the cause of death was not
only the blunt force trauma but she was also strangulated."</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Dr. Norma Farley, a forensic pathologist, reviewed Chavez's autopsy report and
testified that the injury to Chavez's face was consistent with being pistol whipped or being
hit with a hard object, such as a handgun. She said that the hyoid bone is a U-shaped
bone very high in a person's neck and that hyoid-bone fractures are consistent with
strangulation.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Dionicio Cortez, the Cameron County Sheriff's Office gang investigator, testified that
the Mexican Mafia is "known as an organization or a prison gang" with a written constitution
and bylaws. When asked by the prosecutor what activities the gang dealt with, he said,
the gang's constitution "talks about extortion, prostitution, drugs of high magnitude, or
basically anything that they can imagine," including murder. He explained that after a
person becomes a Mexican Mafia prospecto, the person has to show his loyalty by doing
"camellos," or jobs, for the gang. Once a prospecto performs several camellos, his "name
gets brought into the committee," which will vote on whether the prospecto should become
a carnal. Upon becoming a carnal, the person "graduate[s] into the Carnalismo" and
becomes a "Brother." From there, a person "can move up the ranks because they [the
Mexican Mafia] do have a rank structure." </SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Cortez also testified that appellant's body had tattoos, which identified him as a
Mexican Mafia member. He said the tattoo on appellant's stomach represented "Mexicano,
of Mexican origin. The Mexican Mafia uses that a lot." The numbers "1" and "3" tattooed
on his body represented 13. The thirteenth letter of the alphabet is "'M' for Mexicano for
Mexican Mafia.'" The back of his head had a tattoo of an Aztec symbol, which showed
homage to the god of war called Huitzilopochtli. Cortez said "[t]his is a very known tattoo
with the Mexican Mafia that they use quite a bit." He said a person is only allowed to wear
those tattoos "once you graduate into that organization." When asked by the prosecutor
whether, in his opinion, appellant was "a member of the criminal street gang known as the
Mexican Mafia," he said, "Yes, ma'am." On cross-examination, Cortez testified that he did
not know if appellant had these tattoos in November 2003, or if appellant was a Mexican
Mafia member at that time.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"><CENTER><STRONG>II. Sufficiency of the Evidence</STRONG></CENTER>
<P><SPAN STYLE="font-family: Arial"><STRONG>A. Legal Sufficiency</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial"> In his first issue, appellant argues that the evidence is legally insufficient to establish
the elements of engaging in organized criminal activity beyond a reasonable doubt.
Specifically, he contends that the evidence established that at the time of the murder, he
was not a member of a criminal street gang. He further contends that the evidence failed
to establish that he either committed or participated in the murder.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"><STRONG>1. Applicable Law</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial"> "When conducting a legal sufficiency review, a court must ask whether '<EM>any</EM> rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt'-not whether '<EM>it</EM> believes that the evidence at trial established guilt beyond a
reasonable doubt.'" <EM>Laster v. State</EM>, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting
<EM>Jackson v. Virginia</EM>, 443 U.S. 307, 318-19 (1979)) (emphasis in original). "In doing so, we
assess all of the evidence 'in the light most favorable to the prosecution.'" <EM>Id</EM>. (quoting
<EM>Jackson</EM>, 443 U.S. at 319). "After giving proper deference to the fact finder's role, we will
uphold the verdict unless a rational fact finder must have had reasonable doubt as to any
essential element." <EM>Id</EM>. at 518.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Our review of a legal and factual sufficiency challenge should be examined under
the principles of review for a hypothetically correct jury charge. <EM>Grotti v. State</EM>, 273 S.W.3d
273, 280-81 (Tex. Crim. App. 2008). "'Such a charge [is] one that accurately 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.'" <EM>Villarreal v. State</EM>, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting <EM>Malik v. State</EM>, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997)).</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> A person commits the offense of engaging in organized criminal activity "if, with the
intent to establish, maintain, or participate . . . as a member of a criminal street gang, the
person commits or conspires to commit . . . murder." Tex. Penal Code Ann. 71.02(a)-(a)(1). Section 71.01(d) defines a "criminal street gang" as "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." <EM>Id</EM>. 71.01(d) (Vernon 2003).
"Conspires to commit" means that:</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> a person agrees with one or more persons that they or one or more of them
engage in conduct that would constitute the offense and that person and one
or more of them perform an overt act in pursuance of the agreement. An
agreement constituting conspiring to commit may be inferred from the acts
of the parties.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"><EM>Id</EM>. 71.01(b).</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> The underlying offense in this case was the murder of Chavez. A person commits
murder if he or she "intentionally or knowingly causes the death of an individual." <EM>Id</EM>.
19.02(b)(1). </SPAN><SPAN STYLE="font-family: Univers Medium">"A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to engage
in the conduct or cause the result." <EM>Id</EM>. 6.03(a).</SPAN><SPAN STYLE="font-family: Arial"> Intent can be inferred from the
defendant's acts, words, and conduct. <EM>Patrick v. State</EM>, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995); <EM>Lee v. State</EM>, 964 S.W.2d 3, 8 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd).
Section 6.03(b) of the penal code provides:</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is aware
of the nature of his conduct or that the circumstances exist. A person acts
knowingly, or with knowledge, with respect to a result of his conduct when he
is aware that his conduct is reasonably certain to cause the result.</SPAN></P>
<P><SPAN STYLE="font-family: Arial">Tex. Penal Code Ann. 6.03(b) (Vernon 2003).</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> The charge included an instruction on the law of parties. A person is "criminally
responsible as a party to an offense if the offense is committed by his own conduct, by the
conduct of another for which he is criminally responsible, or by both." <EM>Id</EM>. 7.01(a). A
person is criminally responsible for an offense committed by another if, "acting with intent
to promote or assist the commission of the offense, he solicits, encourages, directs, aids,
or attempts to aid the other person to commit the offense." <EM> Id.</EM> 7.02(a)(2). "Each party
to an offense may be charged with commission of the offense." <EM>Id.</EM> 7.01(b).</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> While the presence of an accused at the scene of an offense is not sufficient by
itself to support a conviction, "it is a circumstance tending to prove guilt, which, combined
with other facts, may suffice to show that the accused was a participant." <EM>Beardsley v.
State</EM>, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). Furthermore, "participation in an
enterprise may be inferred from circumstances and need not be shown by direct evidence."
<EM>Id</EM>. at 684.</SPAN></P>
<P><SPAN STYLE="font-family: Arial"><STRONG>2. Analysis</STRONG><EM></EM></SPAN></P>
<P><SPAN STYLE="font-family: Arial"><EM> a. Sufficiency of the Evidence to Support Appellant's Intent to Participate as a
Member of a Criminal Street Gang</EM></SPAN></P>
<P><SPAN STYLE="font-family: Arial"><EM></EM> <A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"></A><A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"></A><A NAME="B52009604149"></A><A HREF=" "></A><A></A><A></A><A></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A>Cortez testified that the Mexican Mafia had common identifying signs or symbols.
Mares testified that the Mexican Mafia had an identifiable leadership, that Padilla served
as the Mexican Mafia's captain for the Rio Grande Valley, and that the Mexican Mafia
members in the Valley regularly associated in the commission of criminal activities such
as drug trafficking, murder, kidnaping, and extortion. Appellant's ex-wife testified appellant
was a Mexican Mafia member in November 2003. The evidence showed that the other
persons who took part in Chavez's murder were either prospects or ranking officers in the
Mexican Mafia. Thus, a rational jury could conclude that appellant was a member of a
criminal street gang at the time of Chavez's murder. <EM>See</EM> Tex. Penal Code Ann. 71.01(d)
(defining "criminal street gang" as "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").</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"> b. Sufficiency of the Evidence to Show Appellant Murdered Chavez</SPAN></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> A rational jury could have determined the following from the evidence that: (1)
Padilla ordered Chavez's murder; (2) appellant held Chavez while Solis strangled her, and
then appellant helped drag her body to the makeshift grave; (3) Chavez died from
strangulation and blunt-force trauma to the face; (4) appellant told Arriola that he killed
Chavez; (5) Arriola testified that by killing Chavez, appellant could move up in the gang;
(6) around the time of Chavez's disappearance, appellant was seen burning clothes and
shoes in a barbecue pit; and (7) after the murder, appellant and the others fled the crime
scene.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"> c. Sufficiency of the Evidence to Show Appellant Conspired to Murder Chavez</SPAN></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> The evidence also showed that on the evening of Chavez's murder, appellant and
other Mexican Mafia members met at Salazar's house. Afterwards, appellant and Mares
went to Trevino's house and picked up Trevino along with a shovel. Then, they went to the
location where Chavez was murdered. The evidence demonstrated that appellant helped
Solis murder Chavez and then assisted in dragging her body to the makeshift grave. A
rational jury could infer from this evidence that appellant agreed with one or more of the
Mexican Mafia members to engage in conduct that would constitute the offense and that
one of these members performed an overt act in pursuance of the agreement. <EM>See id</EM>.
71.01(b) (defining "conspires to commit" as a person agreeing with one or more persons
that any one of them engage in conduct constituting the offense and one of them
performing an overt act in pursuance of the agreement).</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> <EM><A NAME="SR;2792"></A><A NAME="SR;2812"></A><A NAME="SR;2863"></A><A NAME="SR;2985"></A><A NAME="SR;2990"></A><A NAME="SR;3003"></A><A NAME="sp_999_4"></A><A NAME="SDU_4"></A><A NAME="citeas((Cite as: 2002 WL 1840927, *4 (Tex.App.-San Antonio))"></A><A NAME="SR;3031"></A><A NAME="SR;3039"></A><A NAME="SR;3062"></A><A NAME="SR;3089"></A><A NAME="SR;3093"></A><A NAME="SR;3125"></A><A NAME="SR;3136"></A><A NAME="SR;3151"></A><A NAME="SR;3155"></A><A NAME="SR;3196"></A><A NAME="SR;3204"></A><A NAME="SR;3229"></A><A NAME="SR;3237"></A><A NAME="SR;3261"></A><A NAME="SR;3264"></A><A NAME="SR;3273"></A><A NAME="SR;3276"></A><A NAME="SR;3333"></A><A NAME="SR;3335"></A><A NAME="SR;3341"></A><A NAME="SR;3419"></A><A NAME="SR;3426"></A><A NAME="SR;3433"></A><A NAME="SR;3445"></A><A NAME="SR;3459"></A><A NAME="SR;3473"></A><A NAME="SR;3487"></A><A NAME="SR;3493"></A><A NAME="SR;3511"></A><A NAME="SR;3526"></A><A NAME="SR;3529"></A><A NAME="SR;3550"></A></EM>Viewing the evidence in the light most favorable to the verdict, we conclude the
evidence is legally sufficient for a rational jury to find appellant guilty of engaging in
organized criminal activity beyond a reasonable doubt. Issue one is overruled.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><STRONG><SPAN STYLE="text-decoration: underline">B. Factual Sufficiency</SPAN></STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> In his second issue, appellant challenges the factual sufficiency of the evidence to
support his conviction. Specifically, he contends that the evidence fails to establish that
he was a member of a criminal street gang or that he either committed or participated in
the murder.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><STRONG><SPAN STYLE="text-decoration: underline">1. Applicable Law</SPAN></STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> In a factual-sufficiency review, the only question to be answered is: "Considering
all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a
reasonable doubt?" <EM>Grotti</EM>, 273 S.W.3d at 283. Evidence can be deemed factually
insufficient in two ways: (1) "the evidence supporting the conviction is 'too weak' to support
the fact finder's verdict"; or (2) "considering conflicting evidence, the fact finder's verdict is
'against the great weight and preponderance of the evidence.'" <EM>Laster</EM>, 275 S.W.3d at 518
(quoting <EM>Watson v. State</EM>, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a court
of appeals conducts a factual-sufficiency review, it must defer to the jury's findings. <EM>Id</EM>.
The court of criminal appeals has "set out three 'basic ground rules' implementing this
standard." <EM>Id</EM>. (quoting <EM>Watson</EM>, 204 S.W.3d at 414). First, the appellate court must
consider all of the evidence in a neutral light, as opposed to in a light most favorable to the
verdict. <EM>Id</EM>. Second, the appellate court "may only find the evidence factually insufficient
when necessary to 'prevent manifest injustice.'" <EM>Id</EM>. (quoting <EM>Cain v. State</EM>, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the
evidence is too weak to support the verdict or why the conflicting evidence greatly weighs
against the verdict. <EM>Id</EM>. Although the verdict is afforded less deference during a factual-sufficiency review, an appellate court is not free to "override the verdict simply because it
disagrees with it." <EM>Id</EM>.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><STRONG><SPAN STYLE="text-decoration: underline">2. Analysis</SPAN></STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> Evidence militating in favor of appellant showed that: (1) no physical evidence
connected him to Chavez's murder; (2) Mares pleaded guilty to Chavez's murder and
received a sixty-year prison sentence; (3) Mares had prior felony convictions for two other
murders and an attempted capital murder; (4) Davila pleaded guilty to Chavez's murder
and received a five-year prison sentence; (5) Davila had prior felony convictions for
robbery, drug possession, and drug trafficking, and he had his community supervision
revoked; (6) Arriola had a prior felony-theft conviction; (7) in August 2005, when Mares
provided his written statement to Ranger Escalon, he said in his statement that Bernardo
Cortez and appellant were at the crime scene as "witnesses"; he did not say in his
statement that appellant was present at Salazar's house the evening of Chavez's murder
or that appellant kicked her and stomped on her or held her down; (8) on November 16,
2005, Davila gave a statement to Ranger Escalon in which he stated that when he arrived
at the crime scene, he got into the passenger side of Solis's car, and he did not mention
that either he or appellant helped to dig the makeshift grave or that he saw appellant
dragging Chavez's body; (9) as part of his plea of guilty to Chavez's murder, Davila agreed
to testify against appellant and the other co-defendants; (10) after his arrest for Chavez's
murder, Davila told the media he was in federal custody when she died; (11) Dionicio
Cortez testified that he did not know whether appellant was a Mexican Mafia member in
November 2003; and (12) in April or May of 2006, Mares took "full responsibility" for
Chavez's murder. </SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> However, in this case, the contrary evidence does not greatly outweigh the evidence
that appellant was a member of the Mexican Mafia at the time of Chavez's murder and that
he either committed or participated in her murder. Even though much of the incriminating
testimony against appellant came from witnesses who had prior felony convictions, and
even though two of them-Mares and Davila-did not tell Ranger Escalon about appellant's
role in Chavez's murder, the jury was free to believe or disbelieve any portion of the
witnesses' testimony, and we presume the jury resolved conflicts in favor of the prevailing
party. <EM>Wooten v. State</EM>, 267 S.W.3d 289, 296 (Tex. App.-Houston [14th Dist.] 2008, pet.
ref'd). Viewing all the evidence neutrally, we conclude that the evidence supporting the
conviction is not so weak that the fact-finder's determination is clearly wrong and manifestly
unjust, or that the verdict is against the great weight and preponderance of the evidence.
<EM>See Watson</EM>, 204 S.W.3d at 417. We hold that the evidence is factually sufficient to
support the conviction. Issue two is overruled.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"><CENTER><STRONG>III. Conclusion</STRONG></CENTER>
</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> We affirm the trial court's judgment.</SPAN></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> </SPAN></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> </SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> ROSE VELA </SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"> Justice</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Do not publish.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Tex. R. App. P. 47.2(b).</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Delivered and filed the</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">13th day of May, 2010.</SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">
<P><A NAME="N_1_">1. </A>Section 12.32(a) provides, "An individual adjudged guilty of a felony of the first degree shall be
punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than
99 years or less than five years." Tex. Penal Code Ann. 12.32(a) (Vernon Supp. 2009).
<P><A NAME="N_2_">2. </A></SPAN><SPAN STYLE="font-family: Arial">Section 12.32(b) provides, "In addition to imprisonment, an individual adjudged guilty of a felony of
the first degree may be punished by a fine not to exceed $10,000." <EM>Id</EM>. 12.32(b).
<P><A NAME="N_3_">3. </A>Chavez's remains were identified through mitochondrial DNA analysis conducted at the FBI's
laboratory in Quantico, Virginia.
<P><A NAME="N_4_">4. </A>The State introduced Chavez's autopsy report into evidence as State's exhibit 56.
<P><A NAME="N_5_">5. </A>Dr. Marguarite DeWitt performed Chavez's autopsy but did not testify at the trial of this case.</SPAN></SPAN></P>
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