Lancon v. State

220 S.W.3d 57, 2006 Tex. App. LEXIS 11028, 2006 WL 3779781
CourtCourt of Appeals of Texas
DecidedDecember 27, 2006
Docket04-05-00164-CR
StatusPublished
Cited by15 cases

This text of 220 S.W.3d 57 (Lancon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lancon v. State, 220 S.W.3d 57, 2006 Tex. App. LEXIS 11028, 2006 WL 3779781 (Tex. Ct. App. 2006).

Opinions

MEMORANDUM OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Fernando Lancon appeals the judgment convicting him of murder, attempted murder, and deadly conduct. We hold the evidence is factually insufficient to support the jury’s verdict and therefore reverse the trial court’s judgment and remand the cause for a new trial.

Statement of the Case

Jorge Zuniga, Alfonso Villarreal, and Fernando Lancon were charged with the murder of eleven-month-old Federico Soliz III, the attempted murder of Hector Dominguez, and deadly conduct by knowingly discharging a firearm at Dominguez or in his direction. After Lancon was certified to stand trial as an adult, they were tried [59]*59to a jury, which found Zuniga not guilty on all three counts and further found Villarreal (who admitted his complicity) and Lan-con guilty as charged. Lancon was thereafter sentenced to incarceration in the Texas Department of Criminal Justice— Institutional Division for twenty-five years for murder, fifteen years for attempted murder, and ten years for deadly conduct. Lancon appeals.

Factual Sufficiency

Fernando challenges the factual sufficiency of the evidence in one respect only — to support the jury’s implied finding that he was the shooter involved in the events on June 11, 2003. We will therefore first set out the standard of review and then proceed to lay out the facts that are basically undisputed, the evidence supporting the jury’s verdict, and the evidence conflicting with it.

Standard of Review

As the Texas Court of Criminal Appeals recently explained, “[t]he basic ground rules for post-Clewis1 factual-sufficiency review were well-articulated in Cain v. State 2:

[1.] First, the appellate court should be mindful that a jury has already passed on the facts, and convicted, and that the court should never order a new trial simply because it disagrees with the verdict, but only where it seems to the court to represent a manifest injustice, though supported by legally sufficient evidence.
[2.] Second, the appellate court should support its judgment that a manifest injustice has occurred by explaining in exactly what way the State’s evidence, while legally sufficient, is nevertheless too weak to withstand scrutiny, or in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction.
[3.] Third, although viewing all the evidence, as it would in a legal sufficiency analysis, the appellate court should review that evidence, not in the light most favorable to the verdict, but in a neutral light.

Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006) (footnotes omitted). The Watson Court also approved the “substantive adjustment ] to these basic ground rules” set forth in Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000), which “broke down factual-sufficiency analysis into two prongs.” Watson, 204 S.W.3d at 414. “The first prong asks whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless ‘so weak’ that the jury’s verdict seems ‘clearly wrong and manifestly unjust[.]’ ” Id. at 414-15 (quoting Johnson, 23 S.W.3d at 11). “The second prong asks whether, considering conflicting evidence, the jury’s verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence.” Watson, 204 S.W.3d at 415. It is this second prong that is the basis for our decision in this case.

Undisputed Facts

On June 11, 2003 at 9:20:43 p.m., the Laredo Police Department’s 911 operator received a call concerning a shooting at the home of Federico Soliz, Sr. at 2809 Logan Avenue. Minutes before the shooting, a purple or maroon, four-door car equipped with tinted windows that were half-way [60]*60down stopped in front of the Soliz home. Alfonso Villarreal exited the ear from the rear passenger seat, and either Fernando Lancon (“Moiky”) — according to the State’s witnesses — or his shorter but very similar-looking younger brother Eduardo (“Wayo”) — according to the defendants and their witnesses — exited the car from the front passenger seat and fired two shots from a .40 caliber automatic gun at or in the direction of Hector Dominguez, who was, moments earlier, standing on the sidewalk in front of the Soliz home with his friends Daniel Diaz and Fernando Soliz.3 One of the shots traveled through the home’s wall and into the living room, where it fatally wounded eleven-month-old Federico Soliz III. The entire incident lasted less than a minute.

At 9:27 p.m. officers were dispatched to the scene. Detective Greg Cantu III, the chief investigator arrived at approximately 9:30 p.m. When Detective Cantu asked Dominguez who had shot at him, Dominguez replied Fernando Lancon and that he lived on Kearney Street. At 9:26, 911 received a call indicating a possible location for the suspects at 1418 Kearney Street, which is where Fernando lived with his grandmother, Maria Villarreal. Immediately after Dominguez identified Fernando Lancon, Detective Cantu sent an officer to 1418 Kearney to see if he could locate Fernando Lancon or the maroon car, but neither was found. Detective Miguel Angel Rodriguez, a crime scene investigator, arrived at the scene at 9:34. As Rodriguez exited his patrol car, Dominguez pointed at a white Cadillac driving on Lyon and shouted to Detective Cantu, “There he goes; there goes Fernando; there they go in the white car.”4 At 9:35, dispatch was notified to place a lookout for the Cadillac. A few minutes later, Detective Rodriguez saw a white Cadillac stopped behind another vehicle at the stop sign at the corner of Logan and Lyon, one block from the scene of the shooting; the occupants of the white Cadillac were talking to an another male standing outside the car. As Detective Rodriguez approached the car and told its two occupants to let him see their hands, Fernando said “Wait. What’s going on? Wait. I didn’t do anything.” At 9:39 p.m., the occupants of the white Cadillac, Jorge Zuniga and Fernando Lancon, were detained. Detective Cantu immediately administered gunshot residue kits on both suspects’s hands and took their clothes. Fernando Lancon was wearing jeans, a plaid Tommy Hilfiger shirt, and no cap. Shortly thereafter Zuniga and Fernando Lancon were taken to the Webb County Juvenile Detention Center.

Sometime after 11:00 p.m. the night of the shooting, Dominguez and Diaz gave statements, which were videotaped because neither was able to read or write. Dominguez and Diaz were also shown six-person picture lineups and, since they had already identified Fernando Lancon as the shooter, asked only if Fernando was in the lineup. Both quickly identified Fernando as the shooter.5 The next day Dominguez and Diaz were again shown picture lineups and this time identified Jorge Zuniga, whom they did not know by name, as the driver. They also identified Alfonso Villarreal as the third person involved. Fer[61]*61nando Soliz also made a statement naming Fernando Lancon as the shooter, however, Soliz did not identify Fernando in a lineup.6

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Cite This Page — Counsel Stack

Bluebook (online)
220 S.W.3d 57, 2006 Tex. App. LEXIS 11028, 2006 WL 3779781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lancon-v-state-texapp-2006.