NUMBER 13-11-00372-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHN ANTHONY TREVIÑO A/K/A “CHUKE”, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza A jury convicted appellant, John Anthony Trevino a/k/a “Chuke,” of murder, a
first-degree felony, see TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West 2011), and
engaging in organized criminal activity, a first-degree felony, see id. § 71.02(a), (b) (West Supp. 2011). The jury imposed punishment at (1) life imprisonment and a
$10,000 fine for murder and (2) fifty years’ imprisonment and a $10,000 fine for
engaging in organized criminal activity. The court ordered both sentences to run
consecutively to a prior twenty-year sentence imposed in 2005. By a single issue,
appellant contends the evidence is insufficient to support his convictions. We affirm.
I. BACKGROUND
The indictment alleged that appellant, a member of the criminal street gang
known as “Hermanos Pistoleros Latinos” (“HPL”), participated with other gang members
in the drive-by murder of Tim Hunt late in the evening on June 8, 2002 in Victoria,
Texas.1 Other HPL members alleged to have participated in the murder were Joe
Mendoza a/k/a “Loco,” Gilbert Llamas, Ramiro Eddie Salas a/k/a “Moose,” Oscar
Ramirez, and a person known only as “Roach.”2 Pursuant to agreements with the
State, Ramirez and Salas testified at trial. In addition, the State presented the
testimony of ten other witnesses.
Appellant contends the evidence is insufficient to support his conviction because
of alleged inconsistencies in Ramirez’s testimony. Specifically, appellant notes the
following: (1) Ramirez could not recall specifics regarding when the first drive-by
occurred and how many people were outside; (2) the firearm appellant was given for the
shooting was a pistol and Ramirez testified he cannot distinguish between a pistol shot
and a rifle shot; and (3) the vehicle in which Ramirez and appellant were riding had
tinted windows, suggesting that Ramirez could not see the intended target of the
1 Appellant was tried with a co-defendant, Gilbert Llamas a/k/a “Kilo G.” 2 Oscar Ramirez identified this individual as “Jeff Roach.”
2 shooting. After raising these questions about Ramirez’s testimony, appellant states in
his brief that he “respectfully submits that given the situation as the State’s own star
witness [Ramirez] described, [a]ppellant would be unable to engage in any organized
criminal activity, including murder, under these circumstances.” Appellant’s brief
contains no further explanation or argument regarding how these questions about
Ramirez’s testimony render the evidence insufficient to support his conviction.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The court of criminal appeals has held that there is “no meaningful distinction
between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-
sufficiency standard” and that the Jackson standard “is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.
2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,
we review claims of evidentiary insufficiency under “a rigorous and proper application of
the Jackson standard of review.” Id. at 906–07, 912. Under the Jackson standard, “the
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.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d
at 898–99 (characterizing the Jackson standard as: “Considering all of the evidence in
the light most favorable to the verdict, was a jury rationally justified in finding guilt
beyond a reasonable doubt”). The fact-finder is the exclusive judge of the credibility of
witnesses and of the weight to be given to their testimony. Anderson v. State, 322
3 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v.
State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the
evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the
testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.
Crim. App. 2000)).
In reviewing the legal sufficiency of the evidence, we look at events occurring
before, during, and after the commission of the offense, and we may rely on actions of
the appellant that show an understanding and common design to do the prohibited act.
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point
directly and independently to the appellant’s guilt, so long as the cumulative effect of all
the incriminating facts are sufficient to support the conviction. Id.
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “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.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
Section 71.02(a) of the penal code states, in pertinent part:
§ 71.02 Engaging in Organized Criminal Activity
(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or in
4 the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:
(1) murder . . . .
TEX. PENAL CODE ANN. § 71.02(a)(1). Section 71.01 of the penal code defines “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.” Id. § 71.01(d) (West 2003). Thus, under section 71.02(a), to prove
that a defendant engaged in organized criminal activity, the State must prove that the
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NUMBER 13-11-00372-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHN ANTHONY TREVIÑO A/K/A “CHUKE”, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza A jury convicted appellant, John Anthony Trevino a/k/a “Chuke,” of murder, a
first-degree felony, see TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West 2011), and
engaging in organized criminal activity, a first-degree felony, see id. § 71.02(a), (b) (West Supp. 2011). The jury imposed punishment at (1) life imprisonment and a
$10,000 fine for murder and (2) fifty years’ imprisonment and a $10,000 fine for
engaging in organized criminal activity. The court ordered both sentences to run
consecutively to a prior twenty-year sentence imposed in 2005. By a single issue,
appellant contends the evidence is insufficient to support his convictions. We affirm.
I. BACKGROUND
The indictment alleged that appellant, a member of the criminal street gang
known as “Hermanos Pistoleros Latinos” (“HPL”), participated with other gang members
in the drive-by murder of Tim Hunt late in the evening on June 8, 2002 in Victoria,
Texas.1 Other HPL members alleged to have participated in the murder were Joe
Mendoza a/k/a “Loco,” Gilbert Llamas, Ramiro Eddie Salas a/k/a “Moose,” Oscar
Ramirez, and a person known only as “Roach.”2 Pursuant to agreements with the
State, Ramirez and Salas testified at trial. In addition, the State presented the
testimony of ten other witnesses.
Appellant contends the evidence is insufficient to support his conviction because
of alleged inconsistencies in Ramirez’s testimony. Specifically, appellant notes the
following: (1) Ramirez could not recall specifics regarding when the first drive-by
occurred and how many people were outside; (2) the firearm appellant was given for the
shooting was a pistol and Ramirez testified he cannot distinguish between a pistol shot
and a rifle shot; and (3) the vehicle in which Ramirez and appellant were riding had
tinted windows, suggesting that Ramirez could not see the intended target of the
1 Appellant was tried with a co-defendant, Gilbert Llamas a/k/a “Kilo G.” 2 Oscar Ramirez identified this individual as “Jeff Roach.”
2 shooting. After raising these questions about Ramirez’s testimony, appellant states in
his brief that he “respectfully submits that given the situation as the State’s own star
witness [Ramirez] described, [a]ppellant would be unable to engage in any organized
criminal activity, including murder, under these circumstances.” Appellant’s brief
contains no further explanation or argument regarding how these questions about
Ramirez’s testimony render the evidence insufficient to support his conviction.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The court of criminal appeals has held that there is “no meaningful distinction
between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-
sufficiency standard” and that the Jackson standard “is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.
2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,
we review claims of evidentiary insufficiency under “a rigorous and proper application of
the Jackson standard of review.” Id. at 906–07, 912. Under the Jackson standard, “the
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.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d
at 898–99 (characterizing the Jackson standard as: “Considering all of the evidence in
the light most favorable to the verdict, was a jury rationally justified in finding guilt
beyond a reasonable doubt”). The fact-finder is the exclusive judge of the credibility of
witnesses and of the weight to be given to their testimony. Anderson v. State, 322
3 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v.
State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the
evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the
testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.
Crim. App. 2000)).
In reviewing the legal sufficiency of the evidence, we look at events occurring
before, during, and after the commission of the offense, and we may rely on actions of
the appellant that show an understanding and common design to do the prohibited act.
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point
directly and independently to the appellant’s guilt, so long as the cumulative effect of all
the incriminating facts are sufficient to support the conviction. Id.
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “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.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
Section 71.02(a) of the penal code states, in pertinent part:
§ 71.02 Engaging in Organized Criminal Activity
(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or in
4 the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:
(1) murder . . . .
TEX. PENAL CODE ANN. § 71.02(a)(1). Section 71.01 of the penal code defines “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.” Id. § 71.01(d) (West 2003). Thus, under section 71.02(a), to prove
that a defendant engaged in organized criminal activity, the State must prove that the
defendant committed a specific offense that is listed under that chapter—here,
murder—and that the defendant committed that offense “with the intent to establish,
maintain, or participate . . . as a member of a criminal street gang.” See id. §
71.02(a)(1).
A person commits murder if he “intentionally or knowingly causes the death of an
individual” or “intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual.” See id. § 19.02(b).
We note that the jury charge contained an instruction on the law of parties. See
id. § 7.01(a) (West 2003) (stating that a person is guilty 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”). A person “is criminally responsible for an offense
committed by the conduct of 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.” Id. § 7.02(a)(2). In determining whether an
individual is a party to an offense and bears criminal responsibility, the court may look to
5 events before, during, and after the commission of the offense. Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987). Circumstantial evidence may be sufficient to
show that one is a party to an offense. Id.
III. DISCUSSION
We first note that appellant’s brief neither makes a “clear and concise argument”
nor cites authority in support of his assertion that alleged inconsistencies in Ramirez’s
testimony render the evidence insufficient to support appellant’s his conviction. See
TEX. R. APP. P. 38.1(i). Nonetheless, in our sole discretion, we address his issue out of
an abundance of caution to ensure that appellant’s rights are protected. See Garza v.
State, 290 S.W.3d 489, 492 (Tex. App.—Corpus Christi 2009, pet. ref’d) (addressing
appellant’s sufficiency challenge “out of an abundance of caution”).
As the State notes, reconciliation of conflicts in the evidence is within the fact-
finder’s exclusive province. Anderson, 322 S.W.3d at 405. Ramirez testified that he
drove the vehicle in the drive-by shooting, that appellant and Salas were in the back
seat, and “the guys in the back [seat] were shooting.” Ramirez testified that Llamas
ordered them to kill Fred Valdez,3 but they killed Tim Hunt instead. According to
Ramirez, after the killing, he and appellant were promoted within HPL from “prospecto”
status to “carnals.”
Salas testified that he and appellant were in the back seat and Ramirez and
Roach were in the front seat during the drive-by shooting. According to Salas, appellant
was given a nine millimeter pistol to use in the shooting. Salas testified that appellant
fired the pistol multiple times out the back window in the direction of the house where
3 Valdez was ordered to be killed because he testified against another HPL member.
6 the intended victim had been seen. Salas stated that after the shooting, Ramirez and
appellant were promoted from the status of “prospecto” to “carnal” within HPL.
Marcus Perez, another HPL member, testified that Joe Mendoza, another HPL
member, told him that appellant, Salas, and Ramirez were ordered to carry out the
drive-by shooting and that appellant was one of the shooters. Perez was also at the
HPL meeting when Ramirez and appellant were promoted as “carnals.” According to
Perez, the promotions were because Ramirez and appellant killed Hunt.
We conclude the evidence is legally sufficient to support appellant’s convictions
for engaging in organized criminal activity and for committing murder under the law of
parties.
IV. CONCLUSION
We overrule appellant’s sole issue and affirm the trial court’s judgment.
DORI CONTRERAS GARZA Justice
Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 2nd day of August, 2012.