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                                 MEMORANDUM OPINION

                                         No. 04-08-00039-CR

                                    Reynaldo Roberto ESPARZA,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 341st Judicial District Court, Webb County, Texas
                                 Trial Court No. 2005-CRN-166D-3
                           Honorable Elma Salinas Ender, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: January 14, 2009

AFFIRMED

           Reynaldo Roberto Esparza was indicted on two counts of felony murder, two counts of felony

aggravated kidnapping, and two counts of felony engaging in organized criminal activity. A jury

returned a verdict of guilty on each count and assessed punishment of 99 years on each count. On

appeal, Esparza argues that the trial court erred because (1) Esparza was not warned of his right to

terminate the interview prior to custodial interrogation; (2) the evidence was legally insufficient to
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support a conviction; (3) the evidence was factually insufficient to support a conviction; and (4) the

plea agreement was enforceable by specific performance. We affirm.

                              FACTUAL AND PROCEDURAL HISTORY

        Esparza, a member of the Mexican Mafia, was ordered to assist in a plan to exact revenge

on the two victims, who had stolen money from another Mexican Mafia member. The two victims

were summoned to a home on Chicksaw in Laredo, where they were subdued at gunpoint, with their

hands bound behind their backs with their own shoelaces. After being held a few hours, the victims

were placed in the trunk of a car and driven to a second location, where they were shot and killed.

The car was set on fire, and the perpetrators left the scene.

        Esparza was later arrested for his participation in the crime, and indicted on two counts of

felony murder, two counts of felony aggravated kidnaping, and two counts of felony engaging in

organized criminal activity. Esparza initially entered a plea agreement whereby he pled guilty to two

counts, and the remainder were dismissed. However, the plea agreement was subsequently revoked,

and Esparza went to trial on all six counts. A jury returned a verdict of guilty on each count and

assessed punishment of 99 years for each.

                      CUSTODIAL INTERROGATION AND PLEA AGREEMENT

        In his first issue, Esparza challenges the admission of his confession into evidence, arguing

that he was not warned of his right to terminate the interview prior to custodial interrogation. In his

fourth issue, Esparza argues that the plea agreement he had with the State, which was later revoked,

should be enforced by specific performance. However, Esparza failed to raise a complaint about

either of these issues during the course of the trial.




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        The general requirement for preservation of error is set forth in Rule 33.1(a) of the Texas

Rules of Appellate Procedure. See TEX . R. APP . P. 33.1(a). Succinctly, Rule 33.1 requires “a timely,

specific objection and a ruling by the trial court” to preserve a complaint for appellate review.

Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Yet an objection is not required in

every instance. The Texas Court of Criminal Appeals has identified three categories of rules or

rights: (1) systemic (or absolute) requirements; (2) waivable rights; and (3) forfeitable rights. Id. at

340. Rule 33.1(a) does not apply to a violation of the first two categories of rules or rights, and a

violation of those rules or rights may be raised for the first time on appeal. Id. at 341.

        A systemic requirement is “a law that a trial court has a duty to follow even if the parties wish

otherwise.” Id. at 340. Systemic rights include those that are statutorily or constitutionally

mandated, or are otherwise not optional, waivable, or forfeitable by either party. Sanchez v. State,

120 S.W.3d 359, 365-66 (Tex. Crim. App. 2003). Absolute, systemic rights are rights about which

a litigant has no choice and are independent of the litigant’s wishes. Marin v. State, 851 S.W.2d 275,

279 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim.

App. 1997). The implementation of these absolute requirements and prohibitions is not optional,

and is therefore neither waivable nor forfeitable by any party. Id.

        Waivable rights are rights that a judge has an independent duty to implement absent an

effective waiver by the defendant. Id. at 280. “Although a litigant might give [waivable rights] up

and, indeed, has a right to do so, he is never deemed to have done so in fact unless he says so plainly,

freely, and intelligently, sometimes in writing and always on the record.” Id. at 280 (citing Goffney

v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992)). These rights are “so fundamental to the




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proper functioning of our adjudicatory process” that they do not vanish easily. Marin, 851 S.W.2d

at 278-79.

        Forfeitable rights arise from rules that are optional at the request of a defendant. Id. at 279.

Rule 33.1 applies only to these rights. The judge is required to implement them only at the request

of a party, and they are forfeited absent objection made at trial. Id. at 279-80; TEX . R. APP . P. 33.1.

We find that the rights Esparza complains of in issues one and four fall into this category of

forfeitable rights. Review of the record shows no complaints made regarding either of these issues.

Consequently, Esparza’s first and fourth issues are overruled.

                        LEGAL AND FACTUAL SUFFICIENCY CHALLENGES

        In his second and third issues, Esparza challenges the legal and factual sufficiency of the

evidence supporting the trial court’s verdict. When considering a legal sufficiency challenge, we

review all the evidence in the light most favorable to the verdict and determine whether any rational

trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex.

App.—San Antonio 2006, pet. ref’d). We affirm the trial court’s judgment if a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State,

939 S.W.2d 607, 614 (Tex. Crim. App. 1997). When considering a factual sufficiency challenge, we

look at the evidence in a neutral light giving almost complete deference to the jury’s determinations

of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if

the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly

unjust or if the evidence supporting the verdict is outweighed by the great weight and preponderance

of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).



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       Esparza challenges the legal sufficiency of his convictions of murder, aggravated kidnapping,

and engaging in organized criminal activity.      A person commits murder if he “intentionally or

knowingly causes the death of an individual.” TEX . PENAL CODE ANN . § 19.02(b)(1) (Vernon 2003).

A person commits aggravated kidnapping “if he intentionally or knowingly abducts another person

with the intent to . . . terrorize him. . . .” Id. § 20.04(a)(5). A person commits the crime 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, he commits

or conspires to commit one or more of the following: . . . murder, capital murder, arson, aggravated

robbery, robbery, burglary, theft, aggravated kidnaping, . . . .” Id. § 71.02(a)(1).

       Under 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.” Id. § 7.01(a) (Vernon 2003). 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). Evidence is sufficient to convict under the law of parties

where the accused is physically present at the commission of the offense and encourages its

commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App.

1994). In determining whether an accused participated as a party, the fact finder may examine the

events occurring before, during, and after the commission of the offense and may rely on actions of

the accused that show an understanding and common design to commit the offense. Id. Further,

circumstantial evidence may be used to prove party status. Id.




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       Reviewing the evidence in the light most favorable to the verdict, we hold a rational trier of

fact could have found Esparza guilty beyond a reasonable doubt of all elements of the charged

crimes. While there was no evidence presented confirming Esparza’s presence and participation in

the murders, evidence was presented showing Esparza’s involvement in the plan to physically

restrain the victims. Testimony showed that Esparza, a Mexican Mafia member, was ordered by

another Mexican Mafia member to participate in the plan to seek revenge on the victims for stealing

money that belonged to the Mexican Mafia. Esparza displayed his knowledge of this plan when he

attacked the victims with a weapon (either an ice pick or a screwdriver), and observed his

accomplices holding the victims at gunpoint. Esparza, by his own confession, was at the very least

present when the victims were bound with their hands behind their back and held for hours at the

Chicksaw Lane home. Testimony revealed that Esparza carried one of the victims to the car and

placed him in the trunk, and that he and another accomplice followed the car carrying the victims

to the site where the victims were shot and the car was set on fire. Even if Esparza did not shoot the

victims himself, he is criminally responsible for the murders as his actions showed an “intent to

promote or assist the commission of the offense” by aiding in its commission. See TEX . PENAL

CODE ANN . § 7.02(a)(2) (Vernon 2003).        Consequently, the evidence was legally sufficient to

convict Esparza of murder.

       Similarly, the evidence was legally sufficient to convict Esparza of aggravated kidnapping.

See id. at § 20.04(a)(5). As noted above, testimony and Esparza’s own confession confirmed

Esparza’s role in confining the victims. Testimony also showed Esparza’s participation in subduing

the victims, tying them up, and placing them in the back of a car for transport. In addition, under the

law of parties, the evidence was sufficient to convict Esparza as he was physically present at the



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commission of the offense and encouraged its commission by words or other agreement. See

Ransom, 920 S.W.2d at 302.

       Finally, the evidence was legally sufficient to convict Esparza of engaging in organized

criminal activity.   A sheriff’s deputy testified that Esparza signed a waiver of liability form

indicating his participation in the Mexican Mafia, a criminal street gang. Testimony also revealed

the impetus for the kidnapping and murders was the theft of Mexican Mafia money. Consequently,

the evidence was legally sufficient to prove the elements of the crime. See TEX . PENAL CODE ANN .

§ 71.02(a)(1) (Vernon 2003). Esparza’s third issue is overruled.

       Esparza also argues the evidence was factually insufficient to support his convictions.

Esparza contends that the sole source of most of the evidence presented to prove the elements of the

crimes was unreliable, as the witness was involved in the crime and had lied in previous statements

to police; however, the jury heard testimony that the witness had been threatened and told if he

testified, he and his family were in danger of meeting the same fate as the victims. Similarly,

Esparza attempted to discredit a witness who had served as a Texas Ranger for only a few months

before assisting in the investigation, attacking his lack of experience and gaps in memory. While

the witness had been a Ranger for only a few months, the jury also heard of his previous nineteen

years of experience as a Texas Highway Patrolman and his experience investigating other violent

crimes. When considering a factual sufficiency challenge, we give almost complete deference to the

jury’s determinations of credibility. Lancon, 253 S.W.3d at 705. Based on the evidence reviewed

above, and the jury’s determination of the witnesses’ credibility, we cannot say the verdict was so

weak that it was clearly wrong and manifestly unjust; nor was the evidence supporting the verdict

outweighed by the great weight and preponderance of the available evidence. See Watson, 204



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S.W.3d at 414-15. Therefore, the evidence was factually sufficient to support the jury’s verdict.

Esparza’s fourth issue is overruled.

                                          CONCLUSION

       Esparza failed to preserve two issues in which he challenged the admission of his confession

into evidence and the revocation of his plea agreement. In addition, the evidence was legally and

factually sufficient to support the trial court’s verdict. Accordingly, the trial court’s verdict is

affirmed.



                                                     Catherine Stone, Chief Justice

Do not publish




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