                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-06-409-CR


ROLANDO VASQUEZ                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                 STATE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Appellant Rolando Vasquez appeals his convictions for engaging in

organized criminal activity 2 and murder.3 We affirm.




      1
          … See Tex. R. App. P. 47.4.
      2
          … Tex. Penal Code Ann. § 71.02 (Vernon Supp. 2008).
      3
          … Tex. Penal Code Ann. § 19.02 (Vernon 2003).
      In the early morning hours of August 7, 2005, appellant, a member of the

Varrio Northside street gang, shot and killed Juan Rodriguez, a member of the

rival Los Homeboys gang.

      Following a three-day jury trial, appellant was found guilty of engaging in

organized criminal activity and murder. After hearing additional evidence and

argument, the jury assessed punishment at twenty-five years’ confinement for

engaging in organized criminal activity, and life for murder. 4 The trial court

sentenced appellant in accordance with the jury’s verdict and ordered the

sentences to run concurrently.5

      In his first and second points, appellant contends the evidence was

factually insufficient to support the verdicts.

      When determining factual sufficiency, we review all the evidence in a

neutral light, favoring neither party.6     We then ask whether the evidence

supporting the conviction, although legally sufficient, is nevertheless so weak

that the fact-finder’s determination is clearly wrong and manifestly unjust or

whether conflicting evidence so greatly outweighs the evidence supporting the



      4
          … A prior felony conviction enhanced both sentences.
      5
          … See Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2008).
      6
      … Watson v. State, 204 S.W .3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).

                                        2
conviction that the fact-finder’s determination is manifestly unjust. 7 To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. 8

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” 9 We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. 10   We may not simply substitute our judgment for the fact-

finder’s.11 Unless the record clearly reveals that a different result is appropriate,

we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often


      7
       … Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
      8
          … Watson, 204 S.W.3d at 417.
      9
          … Id.
      10
           … Id.
      11
       … Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997).

                                          3
turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” 12 Thus, we must give due

deference to the fact-finder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” 13

      When reviewing a factual-sufficiency challenge, we must discuss the

evidence appellant claims is most important in allegedly undermining the jury’s

verdict.14     In this case, appellant argues that the evidence is factually

insufficient to support his murder conviction because (1) no physical evidence

linked him to the crime; (2) the trial testimony of David Mata, Jessica Ramirez,

Jesus Duran, and Mark Monreal “conflicts with each other, with their

statements previously given to the police, and with the forensic evidence

produced at trial”; and (3) because Mata, Duran, and Monreal had lengthy

criminal records.

      A person commits murder if he either (1) intentionally or knowingly

causes the death of an individual; or (2) intends to cause serious bodily injury




      12
           … Johnson, 23 S.W.3d at 8.
      13
           … Id. at 9.
      14
           … Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                                        4
and commits an act clearly dangerous to human life that causes the death of

an individual. 15

      The jury is the sole judge of the facts, the credibility of the witnesses and

the weight to be given the evidence. 16 Therefore, the jury is free to believe or

disbelieve all or part of any witness’s testimony.17        A factual-sufficiency

challenge will not necessarily be sustained simply because the record contains

conflicting evidence upon which the fact-finder could have reached a different

conclusion.18

      The evidence showed that appellant was a member of a Fort Worth street

gang, Varrio Northside (“VNS”).        Juan Rodriguez and David Mata were

members of a rival gang, the Los Homeboys (“LHB”). Animosity between the

gangs dated back to 1993 when Mata’s older brother, LHB-gang-member Greg

Mata, murdered VNS-gang-member Noah Soto.




      15
           … Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003).
      16
       … Cain, 958 S.W.2d at 407; see Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979).
      17
           … See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998).
      18
       … See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App.
1997) cert. denied, 535 U.S. 982 (2002).

                                        5
      On the night Rodriguez was killed, he and Mata were sitting in his car in

the parking lot outside Jessica Ramirez’s apartment.        Appellant and Jesus

Duran walked by and tried to see who was in the car.

      Mata knew appellant did not like him because his brother had killed Soto

years before. Mata asked Rodriguez to take him home. Rodriguez told him not

to worry because Rodriguez and appellant were both members of another gang

and had recently hung out together. Rodriguez exited the car alone and shook

hands with appellant and Duran.

      The two insisted that Mata also exit the car. Mata did so to avoid any

trouble. Appellant asked for Mata’s name. When Mata said, “David Mata,”

appellant lifted his shirt, drew a pistol, cocked it, put it back in his pants, and

asked if he was Greg Mata’s brother. Mata acknowledged that he was, the

scene became tense, and Mata believed something would happen.

      Appellant demanded Ramirez’s cell phone “before [he did] something

stupid.” Mata heard appellant say into the phone, “Yeah, he’s here right now,

I got him here right now.”

      Rodriguez urged Mata to leave, insisting that he could keep appellant and

Duran from doing anything.      Eventually, Mata went around the apartment

building to use the restroom and did not come back.




                                        6
       Realizing that Mata had gone, appellant “snapped,” re-drew the pistol,

pointed it at Rodriguez and ordered him into the car. Appellant instructed Duran

to follow them. Not far from the apartment-complex exit, Duran saw appellant

shoot Rodriguez.

       From inside her apartment, Ramirez heard gunshots. She called appellant

several times, who, when he finally answered, told her that he had shot

Rodriguez.

       Sometime later, appellant talked to Mark Monreal, an original VNS

member and Soto’s cousin. Appellant told Monreal that he had killed a friend

of Greg Mata in a car to avenge Soto’s murder. Appellant asked if the killing

would promote him in the gang.

       At the house where appellant was arrested, police found a Taurus pistol

wrapped in a blue towel resting in a tree stump. Forensic testing linked the

pistol to projectiles and cartridge cases recovered from the site of Rodriguez’s

killing.

       Having reviewed all the evidence in a neutral light, we cannot say that the

evidence supporting appellant’s murder conviction is so weak that the verdict

seems clearly wrong and manifestly unjust or that the verdict is against the




                                        7
great weight and preponderance of the evidence.19 Therefore, we find the

evidence factually sufficient.20 We overrule point one.

      In point two, appellant claims that the evidence is factually insufficient

to sustain his conviction for engaging in organized criminal activity because,

even if he killed Rodriguez, his actions “were performed by [himself], alone, and

not as part of a common scheme, organization, or combination[] to establish,

maintain or participate as a member of a criminal street gang.” He argues that

“a single offense, committed by a single actor, even if given a genesis in gang

activity” does not constitute engaging in organized criminal activity.

      A person commits the offense of engaging in organized criminal activity

if, with 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, he commits

or conspires to commit . . . murder.21 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




      19
           … See Johnson, 23 S.W.3d at 11.
      20
      … See Watson, 204 S.W.3d at 414; Clewis v. State, 922 S.W.2d 126,
133–34 (Tex. Crim. App. 1996).
      21
           … Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2008).

                                       8
activities.22 Under the plain language of § 71.02(a), a person may be convicted

of engaging in organized criminal activity by individually committing murder.

      Moreover, the evidence clearly established that appellant committed the

offense of engaging in organized criminal activity. Appellant is a member of a

criminal street gang, VNS, one of the larger gangs in Fort Worth, with three or

more members. VNS has a common identifying sign or symbol and identifiable

leadership. Its members regularly or continuously associate in the commission

of criminal activities, including assaults, drug offenses, weapons violations,

burglaries, and homicides.

      Appellant drew a pistol from his pants, cocked it, and returned it to his

pants when he learned that Mata shared his last name with someone who had

killed a fellow gang member in the past. When appellant learned that Mata was

the brother of the one who had killed his fellow gang member, the scene

became tense and Mata feared that something would happen. Appellant made

a telephone call, telling someone on the other end, “Yeah, he’s here right now,

I got him here right now.”

      When Mata left at the insistence of Rodriguez, and appellant realized that

Mata was not coming back, he “snapped,” pulling the gun on Rodriguez.




      22
           … Tex. Penal Code Ann. § 71.01(d) (Vernon 2003).

                                       9
Appellant instructed Duran to follow him, and appellant and Rodriguez left in

Rodriguez’s car. After traveling a short distance, appellant shot Rodriguez.

      Appellant told Monreal, a senior gang member in VNS, that he had killed

a friend of Greg Mata’s in a car to avenge the death of Monreal’s cousin, Soto,

whom Greg Mata had killed years before. Appellant asked Monreal if killing

Rodriguez meant he could get his “stripes” in the gang, i.e., if he could move

up in its hierarchy.

      Mata testified that Rodriguez was killed because he was Mata’s friend

and “because he got [Mata] out of there.” Mata testified that appellant was

after him, was angry that Rodriguez had helped him, and decided to kill

Rodriguez after Mata left.

      Viewing all the evidence in a neutral light, we cannot say that the jury’s

verdict seems clearly wrong and manifestly unjust, nor that it is against the

great weight and preponderance of the evidence. Because the evidence is

factually sufficient to sustain the jury’s verdict that appellant is guilty of

engaging in organized criminal activity, we overrule point two.23

      In his third point, appellant claims that the trial court erroneously admitted

evidence that appellant was a member of the prison gang Tango Blast.




      23
           … See Watson, 204 S.W.3d at 414; Clewis, 922 S.W.2d at 133–34.

                                        10
      Texas Code of Criminal Procedure article 38.36(a) provides that in all

prosecutions for murder, the state or the defendant shall be permitted to offer

testimony as to all relevant facts and circumstances surrounding the killing and

the previous relationship existing between the accused and the deceased.24

This provision must be read in conjunction with Rules 403 and 404(b) of the

Texas Rules of Evidence. 25      Reading the three provisions together, prior-

relationship evidence is admissible unless its probative value is substantially

outweighed by unfair prejudice, confusion of the issues, misleading of the jury,

considerations of undue delay, or needless presentation of cumulative

evidence.26 Further, the evidence cannot be admitted solely to show that the

accused acted in conformity with his bad character and murdered the victim. 27




      24
           … Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005).
      25
        … Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999); see Bush
v. State, 958 S.W.2d 503, 505 (Tex. App.—Fort Worth 1997, no pet.).
      26
       … Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006), cert.
denied, 127 S. Ct. 1289 (2007).
      27
           … Garcia, 201 S.W.3d at 703.

                                       11
      The admissibility of evidence is within the discretion of the trial court and

will not be overturned absent an abuse of discretion.28 If the trial court’s ruling

was within the zone of reasonable disagreement, we must affirm. 29

      Here, appellant’s membership in the Tango Blast gang was relevant to

the circumstances of the murder. Mata testified that he was apprehensive

when he saw appellant because he knew appellant did not like him because

Mata’s brother had killed Soto, years before. Rodriguez allayed Mata’s fears by

explaining that appellant and he were members of Tango Blast and that he and

appellant had recently hung out together.           Rodriguez’s and appellant’s

membership in the same gang helped explain Rodriguez’s belief that he could

keep appellant and Duran from doing anything when Mata left the scene. The

evidence was not offered solely to show that appellant murdered Rodriguez

because he acted in conformity with his bad character.

      Having held the evidence to be relevant to the circumstances of the

murder, we must determine whether its probative value was substantially




      28
        … Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003);
Montgomery v. State, 198 S.W.3d 67, 79 (Tex. App.—Fort Worth 2006, pet.
ref’d).
      29
           … Moses, 105 S.W.3d at 627; Montgomery, 198 S.W.3d at 79.

                                        12
outweighed by the danger of unfair prejudice. 30 To make this determination, we

must consider the inherent probative force of the proffered item of evidence

along with the proponent’s need for that evidence, and balance these

considerations against the following four factors that favor exclusion:

      (1) any tendency of the evidence to suggest [a] decision on an

      improper basis,

      (2) any tendency of the evidence to confuse or distract the jury

      from the main issues,

      (3) any tendency of the evidence to be given undue weight by a

      jury that has not been equipped to evaluate the probative force of

      the evidence, and

      (4) the likelihood that presentation of the evidence will consume an

      inordinate amount of time or merely repeat evidence already

      admitted.31

      In this case, the probative force and the State’s need to admit evidence

that Rodriguez and appellant were members of the same gang outweigh the




      30
       … Montgomery v. State, 810 S.W.2d 372, 388–89 (Tex. Crim. App.
1990)(op. on reh’g).
      31
           … Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.
2006).

                                      13
factors that favor exclusion. Although a defendant’s membership in a gang

such as Tango Blast — whose membership is open only to persons who have

been incarcerated — could have a tendency to influence a jury to convict on the

basis of the defendant’s incarceration for a prior conviction, any such tendency

is minimal here, where the evidence of guilt is so compelling. In addition to

hearing eye-witness testimony from a person who saw appellant shooting

Rodriguez, appellant’s admission to Ramirez and Monreal that he shot Rodriguez

was before the jury.     The force of this evidence was strong enough to

overcome any tendency the jury might have to convict on the basis of his

prison gang membership. It was also unlikely that the prison gang membership

would confuse and distract the jury, or be given undue weight given the

compelling evidence of guilt.

      Furthermore, the record shows that the prison gang evidence did not

consume inordinate time and was not repetitious.         Appellant’s trial first

mentioned that Tango Blast was a prison gang in her opening statement.

Thereafter, over the next three days of trial and 449 pages of record, the

State’s evidence of appellant’s membership in the gang appears on only five

pages, including one devoted to mitigating evidence that a person could join the

gang while being held in the county jail for a misdemeanor offense. Neither




                                      14
appellant’s trial counsel nor the State mentioned the membership in Tango Blast

in closing argument.

      Because the factors favoring exclusion do not substantially outweigh the

probative force of the evidence and the State’s need for it, we hold that the

trial court did not abuse its discretion in admitting evidence of appellant's

membership in Tango Blast under rule 403. We overrule point three.

      Having overruled all of appellant’s points, we affirm the judgment of the

trial court.


                                                PER CURIAM


PANEL: CAYCE, C.J.; HOLMAN and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 4, 2008




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