                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00044-CR

DAVID SAMARIPAS, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 07-06200-CRF-272


                         MEMORANDUM OPINION


      David Samaripas, Jr. appeals from his conviction for the offense of Engaging in

Organized Criminal Activity. TEX. PEN. CODE ANN. § 71.02 (Vernon Supp. 2009). He

elected to have the jury assess punishment. After Samaripas pled not true to two

enhancements, the jury found the enhancements true, and based on the jury’s verdict

the trial court sentenced Samaripas to confinement for fifty (50) years in the Texas

Department of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. § 12.42

(Vernon Supp. 2009). Samaripas contends that the evidence was legally insufficient to

prove that he committed the offense of engaging in organized criminal activity with the
intent to establish, maintain, or participate as a gang member, that the evidence was

legally insufficient to prove that he committed the offense of deadly conduct as alleged

in the indictment, that he suffered egregious harm from the trial court’s omission of one

element of the offense of engaging in organized criminal activity, and that his sentence

was unlawfully enhanced. Because we find that Samaripas was egregiously harmed by

errors in the charge to the jury, we reverse and remand for a new trial.

Legal Insufficiency

         In his first issue, Samaripas complains that the evidence was legally insufficient

to establish that he committed the offense of engaging in organized criminal activity in

that there was insufficient evidence to prove that he shot at the residence in question

with the intent to establish, maintain, or participate as a member of a gang. In his

second issue, he complains that the evidence was legally insufficient to establish that he

committed the offense of deadly conduct as alleged by the State in the indictment.

Standard of review

         In reviewing the legal sufficiency of the evidence to support a conviction, we

view all the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).

         This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

Samaripas v. State                                                                    Page 2
from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the

evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Margraves v. State,

34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the

facts and reject another, or reject any part of a witness's testimony.        Margraves, 34

S.W.3d at 919. Thus, when performing a legal sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment for that

of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000). Instead, we “determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). It is not necessary

that each fact point directly and independently to the guilt of the appellant, as long as

the cumulative force of all the incriminating circumstances is sufficient to support the

conviction. Hooper, 214 S.W.3d at 13. We must presume that the fact-finder resolved

any conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

        The sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case. Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict the

State's theories of liability, and adequately describes the particular offense for which the

Samaripas v. State                                                                     Page 3
defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik,

953 S.W.2d at 240.       The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the charging instrument. See Curry v.

State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

The Facts Relating to Engaging in Organized Criminal Activity

        We will address the relevant facts as necessary to our legal sufficiency review for

each issue separately. Our recitation of the facts is given from a view most favorable to

the judgment.        See Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

Samaripas was shot at a club in a known gang neighborhood approximately one month

before the offense in the instant case. The injuries sustained in that shooting resulted in

Samaripas having a colostomy, which required the use of a bag. A member of the

Surenos gang was eventually arrested for that shooting. The Surenos gang and the

Latin Kings were known to be enemies. Samaripas was an admitted member of the

Latin Kings at one time; however, Samaripas denied membership at the time of the

incident.

        In the early morning hours of October 5, 2007, a drive-by shooting occurred

whereby approximately eleven shots were fired in the general direction of a residence.

The shots were heard by a patrol officer, who immediately drove to the scene. A visitor

to the residence and a resident of the home gave the police a description of the vehicle

from which the shots had originated. The police shortly thereafter located a vehicle

matching the description given by the witnesses, began pursuit, and at some point

during the chase, the officer observed something being tossed out of the passenger-side

Samaripas v. State                                                                   Page 4
window of the vehicle. When the vehicle was ultimately stopped, Samaripas was

determined to be in the front passenger seat. Another alleged member of the Latin

Kings was the driver of the vehicle.

        The residence that was fired upon was the residence of the individual that would

later be arrested for shooting Samaripas. Casings from the firearm were located on the

ground at the residence. After a search of the area where the item had been thrown

during the high-speed chase, a bag used for colostomies was located that contained a

semiautomatic 9 millimeter firearm, an empty clip and two loaded clips, and a cell

phone. The casings located at the scene were later matched to the firearm located in the

bag by ballistics expert testimony.

        According to the State’s gang expert, there are five indicators of gang

membership.          If two indicators are present, law enforcement considers that an

individual is a gang member. Four of the five indicators were present relating to

Samaripas.     They were:      admitted gang membership, information supplied by an

informant, his tattoos, and being with a gang member during the commission of a

criminal offense, which is consistent with gang activity. Three of the five indicators of

gang membership were present with the driver of the vehicle.

        The Latin Kings are a national gang, and were active at the time of the offense in

Bryan, where the shooting took place. Their primary activities are narcotics trafficking

and retaliatory, assaultive-type offenses, which includes deadly conduct. Samaripas

had several tattoos on his person which were associated with the Latin Kings.

Although Samaripas denied gang affiliation at the time of the drive-by shooting,

Samaripas v. State                                                                  Page 5
according to the officer who interviewed him, he referred to the Latin Kings as “us” in

his oral statement to the police after his arrest. Samaripas demonstrated significant

knowledge of the Latin Kings, knew that the Surenos gang consisted mostly of illegal

aliens from Mexico, was overtly hostile regarding illegal aliens, and knew that there

was significant hatred between the Surenos and the Latin Kings.

        We find that the evidence before the jury is sufficient to sustain the jury’s

necessary inferences that Samaripas was acting with the intent to establish, maintain, or

participate as a member of a gang, and that those inferences are reasonable based upon

the combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict. We overrule issue one.

        Samaripas also complains that the evidence was legally insufficient for the jury

to have found that he committed the offense of Deadly Conduct. See TEX. PEN. CODE

ANN. § 22.05 (Vernon Supp. 2009). There are two methods by which felony deadly

conduct may be alleged. The first is by knowingly discharging a firearm “at or in the

direction of one or more individuals.” TEX. PEN. CODE ANN. § 22.05(b)(1), (e). The

second is by knowingly discharging a firearm “at or in the direction of a habitation,

building, or vehicle and is reckless as to whether the habitation, building, or vehicle is

occupied.” TEX. PEN. CODE ANN. § 22.05(b)(2). The indictment alleges deadly conduct

by knowingly discharging a firearm at individuals, and then lists ten specific names of

persons. Samaripas contends that the evidence was legally insufficient to show that

Samaripas was aware or reasonably certain that individuals were in the home at the

time of the shooting.

Samaripas v. State                                                                  Page 6
The Facts Relating to Deadly Conduct

        The shooting took place at approximately 1:30 a.m. Four vehicles were parked

outside of the residence at the time of the shooting. Samaripas does not dispute that

shots were fired in the direction of the residence. There were approximately ten adults

and four children in and outside of the residence. There was a person outside who had

just left the residence who was a known member of another rival gang of the Latin

Kings, although it was not clear whether or not she was visible from the shooter’s

vehicle. She testified that she saw an SUV approach with its lights off, heard the initial

shots, and ducked down behind a vehicle to avoid being shot.

        One individual was in the living room located at the front of the house with his

spouse and children watching television. He got up to look out of a window facing the

street. The window did not have any covering. He was looking out the window, saw

an SUV with its lights off, and heard the first shots when he immediately ducked down.

There were between nine to twenty shots fired, and then the SUV accelerated quickly

and drove away. A police car arrived almost immediately, and both individuals were

able to describe the SUV to police who then pursued and ultimately arrested both

Samaripas and the driver.

        In his testimony at trial, Samaripas blamed the driver for the shooting and

denied any involvement whatsoever.        However, had the driver been the shooter,

Samaripas would have been in some jeopardy by the spent casings as they came out of

the chamber, and the casings would have been located inside the SUV instead of on the

street. The casings would have discharged on the right side of the firearm. Samaripas

Samaripas v. State                                                                  Page 7
did admit that the driver knew who lived at the residence and that the driver and one

of the residents had a dispute a week before the shooting in the instant case.

Additionally, in his statement given on the night of his arrest, Samaripas spent a great

deal of time venting about his views on illegal aliens, shootings relating to the illegal

aliens, and his desires and intentions toward retaliation. In his statement the night of

his arrest, Samaripas also made a comment that the officer should “[b]e prepared. To

be honest with you, one of them is going to die before it is over with.”

        We find that it was a reasonable inference for a rational jury member to

determine that Samaripas knowingly discharged a firearm at individuals based on the

late hour of the shooting, the vehicles parked in and around the residence, and

Samaripas’s and the driver’s testimony that they knew that a rival gang member

resided at the residence that was shot at as well as Samaripas’s statements the night of

the arrest. We overrule issue two.

Jury Charge Error

        Samaripas complains that the charge to the jury omitted an element of the

offense of Engaging in Organized Criminal Activity. The element omitted was that

Samaripas intended to establish, maintain, or participate as a member of a gang at the

time of the offense. See TEX. PEN. CODE ANN. § 71.02 (Vernon Supp. 2009).

        Samaripas did not object to the omission of this element in the trial court’s charge

to the jury. The State concedes that the omission of the language was erroneous. Based

on the language of section 71.02, we agree that the charge was erroneous in omitting




Samaripas v. State                                                                    Page 8
that element of the offense, and that the instruction as given, was also erroneous. See

TEX. PEN. CODE ANN. § 71.02 (Vernon Supp. 2009).

        We must therefore analyze this error utilizing the standard of Almanza v. State.

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Olivas v. State, 202

S.W.3d 137, 143-44 (Tex. Crim. App. 2006), citing Almanza, 686 S.W.2d 157 (Tex. Crim.

App. 1985)). Under Almanza, unobjected-to jury charge error will not result in reversal

of a conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at 171. In

examining the record for egregious harm, we consider: 1) the entire jury charge, 2) the

state of the evidence, including the contested issues and the weight of the probative

evidence, 3) the final arguments of the parties, and 4) any other relevant information

revealed by the record of the trial as a whole.   Olivas v. State, 202 S.W.3d at 144. Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006).

The Entire Jury Charge

        The jury charge contains the following instruction:      “A person commits the

offense of engaging in organized criminal activity if, as a member of a criminal street

gang, he commits the offense of deadly conduct.” The charge then correctly defines

what constitutes a criminal street gang.     A correct instruction on the definition of

“knowingly” was included as required as the mens rea of the offense of deadly conduct.

See TEX. PEN. CODE ANN. § 6.03 (Vernon 2003).

Samaripas v. State                                                                   Page 9
        The charge then contains the following instruction:

        “You are instructed that the State alleges that the defendant has
        committed criminal offenses or bad acts or extraneous offenses other than
        the offense for which he is now being tried. Such evidence is admitted for
        the purpose of evaluating the opinion testimony of the State’s witness
        testifying to such evidence. The evidence may be considered for the
        purpose of aiding you in determining the weight, if any, to be given to the
        testimony of this witness. Evidence of any offense for which the
        defendant is not on trial may not be considered by you for the purpose of
        establishing the guilt of the defendant in this case.

        You are instructed that any exhibits entered into evidence by the State
        through Officer Mike Kneese1 are admitted for the limited purpose of
        determining the basis of the witness’ (sic) opinion. The exhibits may not
        be considered by you for the purpose of establishing the guilt of the
        defendant or for any other purpose.”

        Then, the jury was charged as follows:

        “Now, bearing in mind the foregoing instructions, if you find from the
        evidence beyond a reasonable doubt … that the defendant, David
        Samaripas, Jr., did then and there, acting alone or as a party as that term
        has been previously defined … and the defendant did then and there
        commit the said offense as a member of a criminal street gang, then you
        will find the defendant guilty of the offense of Engaging in Organized
        Criminal Activity as charged in the indictment.”

        The charge contained no instruction regarding the definition of “intent.” We

cannot say that the jury charge, taken as a whole, does anything to ameliorate the error.

The State of the Evidence

        As stated above, we have found the evidence legally sufficient for the jury to

have determined that Samaripas committed the offense with the intent to establish,

maintain, or participate as a member of a gang at the time of the offense. Samaripas

1Officer Mike Kneese was the State’s gang expert and testified as to his opinion regarding whether or not
Samaripas and the driver of the SUV were members of a gang at the time of the offense. Photographs of
Samaripas’s tattoos were admitted through this officer in order to explain the significance of them as
relates to gang membership.

Samaripas v. State                                                                               Page 10
and the driver of the SUV both contended that they were not gang members. At trial,

Samaripas specifically denied gang membership at the time of the offense, which the

State disputed. While the evidence that Samaripas committed the offense of deadly

conduct was overwhelming, the evidence as to whether the offense was committed with

the intent to establish, maintain, or participate as a member of a gang, although legally

sufficient, was less strong.

Final Arguments

        The State’s argument did reference that if the jury found that Samaripas

committed the offense as a member of a criminal street gang, that he was guilty of the

offense of engaging in organized criminal activity.          However, the State also

characterized the events as Samaripas and his gang friend deciding to get revenge by

shooting up a rival gang member’s residence together, as gang members stick together.

Relevant Information from the Entire Trial

        The State began its erroneous description of the requirements of engaging in

organized criminal activity in voir dire, when a discussion of what constitutes the

offense ensued. The State made the following statement: “Now, in the course of

committing one of several offenses, if it is proved in court that while you committed

that offense, an individual happens to be a member of a criminal street gang, that is

what creates the crime of organized criminal activity.” The State went on further to

state that the offense can be committed two ways, by being a gang member or with the

intent to establish, maintain, or participate in a combination or the profits of a

combination.

Samaripas v. State                                                                Page 11
        When discussing the difference in levels between offenses, the State asked the

venire panel if they agreed with the idea that if a person was a member of a gang that

their punishment should go up a level, to which it appears that all of the panel but one

agreed. That venireperson asked the State if a drive-by shooting occurred by a person

who happened to be a gang member but that the shooting was not part of gang-related

activity would constitute engaging in organized criminal activity, to which the State

replied that all that they had to prove was that the offense of deadly conduct occurred

and that the defendant was a member of a street gang.

        Another venireperson asked the following: “A crime is committed. A guy

comes along and takes the air out of my tire. So he is in a gang that does murder, drugs,

whatever. Because he is a member of that gang, letting the air out of my tires makes it a

criminal activity when the gang was not involved.          He was.     Say it’s something

personal. He didn’t like me or didn’t like my tire or whatever. But because of that and

him being in a gang, he is prosecuted under this?” The State replied: “Yes, sir.” The

State corrected itself by stating that letting air out of tires is not one of the enumerated

offenses in the statute but then tells the venireperson: “What you’re going to have to do

is go back to the statute and read: ‘A person commits an offense if as a member of a

criminal street gang he commits or conspires to admit (sic) one or more of the

following.’”

        However, in other portions of the trial, including its opening statement and

during the testimony of the witnesses, the State referred to the offense as a gang-related




Samaripas v. State                                                                   Page 12
shooting, which could be construed as requiring more than Samaripas just being a gang

member.

        During its deliberations during the guilt-innocence phase of the trial, the jury

sent out a note requesting “a list of the five elements that comprise the indictment (all

pts).” It appears that the jury was requesting affirmation as to what the exact elements

of the offense were. The record is unclear as to what the trial court’s response to the

question was, other than to send the charge back to the jury with its erroneous

language.

        Based on the record as a whole, we find that the repeated misstatements of the

statute throughout the trial and in the charge as well as the omission of the element

requiring the jury to find beyond a reasonable doubt that the offense of deadly conduct

had to be committed with the intent to establish, maintain, or participate as a member

of a gang deprived Samaripas of a valuable right, which was a jury finding on a

contested element of the offense for which he was ultimately convicted. See Sanchez v.

State, 209 S.W.3d at 125. We sustain issue three.

Conclusion

        Using a hypothetically correct jury charge, we find that the evidence was legally

sufficient to sustain Samaripas’s conviction.       We find that the trial court erred in

misstating the elements of engaging in organized criminal activity and by omitting an

essential element of that offense and that Samaripas was egregiously harmed by the

misstatement and omission. Because of our decision in Samaripas’s third issue, we do




Samaripas v. State                                                                Page 13
not reach his fourth issue regarding the enhancements. We reverse the conviction and

remand for a new trial.


                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed February 3, 2010
Do not publish
[CRPM]




Samaripas v. State                                                           Page 14
