             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-0983-19



                        JUAN ANTONIO GONZALEZ, Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE EIGHTH COURT OF APPEALS
                          EL PASO COUNTY

               W ALKER, J., filed a dissenting opinion in which S LAUGHTER, J., joined.

                                   DISSENTING OPINION

       This case comes back before our Court after we remanded to the court of appeals. Gonzalez

v. State, 544 S.W.3d 363, 375 (Tex. Crim. App. 2018). On remand, the court of appeals overruled

Appellant’s issues which claimed that the evidence is legally insufficient to support his conviction

for murder. Appellant petitions this Court for discretionary review. Because I agree with Appellant

and the dissenting Justice at the court of appeals that the evidence is legally insufficient, I would

grant review. Because the Court does not, I respectfully dissent.

                                         I — Background
                                                                                                  2

       The basic facts of this case are, essentially,1 that Juan Antonio Gonzalez, Appellant (age 17

at the time), and his two friends, Alan Medrano (age 19) and Juan Gomez (age 18), were walking

home from school in the late afternoon along a sidewalk on the side of a busy residential street. As

they were walking, Gomez “keyed” several parked cars, including the car of Jonathan Molina, a

police officer who was off-duty at the time. Molina, who was not in uniform, emerged angrily from

his house and confronted Gomez. Although there is some dispute as to how angry and

confrontational Molina was and which particular words he said to Appellant, Medrano, and Gomez,

an argument quickly ensued and escalated. Molina shoved Appellant, and Appellant reacted by

punching Molina. Then, Appellant tackled Molina by using a “judo move” to take down Molina by

picking him up by the legs and dropping him. This caused Molina’s head to hit the concrete

sidewalk, and Molina, who weighed 275 pounds, likely did not break his fall in any way. Appellant

got on top of Molina and punched him two or three times in the face. Then Appellant, Medrano, and

Gomez walked away from the scene, and they began running when they heard a bystander say the

police were being called.

       The evidence showed that Molina’s head hit the concrete in an area where the surface was

irregular and jutted up “like a teepee.” Molina suffered a brain injury and died ten days later.

According to the medical examiner, Appellant’s punches had nothing to do with the cause of death.

The blow to Molina’s head from hitting the sidewalk was not a survivable injury.

       After the fight, Appellant went to an uncle’s apartment and began sending and receiving

messages on Facebook, including messages related to the fight. In messages to his girlfriend,



       1
        The facts of this case were thoroughly recited in our previous opinion. See Gonzalez, 544
S.W.3d at 365–69.
                                                                                                      3

Appellant told her that he might go to jail because he and “two friends walked home and this guy

starting talking shit to us, and at first I told him to back off and he pushed me so I punched him, then

tackled him, then punched him again.” Appellant also said that “It’s not my fault tho he was like 30

and twice my size, . . . I’m really really really scared” and “I shouldn’t have hit him, I don’t know

what I was thinking.” He told his girlfriend that they ran when they saw the man twitching and

bleeding. After hearing a news report that Molina had died, Appellant messaged Medrano that, “I

hope u didn’t get caught I killed the guy, he went into compulsions and died.” When later accounts

reported that Molina was alive, Appellant messaged, “Dude turn on the news there’s all this crap

going on.” Appellant claimed he was going to turn himself in the next day, but police located and

arrested him at 3:00 a.m.

        At trial, Medrano testified that he and Appellant routinely taught each other and practiced

boxing and judo moves. He testified that Appellant taught him how to take down someone bigger

by grabbing their legs and dropping them, causing the person to fall on their own weight, allowing

the person who executed the move to climb on top of the downed individual. Medrano said he and

Appellant would wrestle and practice moves while hanging out at home.

        Appellant was charged with capital murder, but the jury convicted him of the lesser offense

of murder. After we remanded this case back to the court of appeals,2 that court considered, among

other issues, Appellant’s challenge that the evidence was legally insufficient to support the murder

conviction. The court of appeals disagreed and found that there was legally sufficient evidence to




        2
            Id. at 375.
                                                                                                    4

show that Appellant either intended to cause Molina’s death,3 or, while intending to cause serious

bodily injury to Molina, committed an act clearly dangerous to human life that caused Molina’s

death.4 Gonzalez v. State, No. 08-14-00293-CR, 2019 WL 1553583 at *5–9 (Tex. App.—El Paso

Apr. 10, 2019) (not designated for publication). Justice Rodriguez dissented. Gonzalez, 2019 WL

1553583 at *21 (Rodriguez, J., dissenting). She agreed with Appellant that the evidence was

insufficient to show murder. Id. Instead, she thought the evidence was sufficient to support

manslaughter, and she would have reformed the judgment to reflect a manslaughter conviction and

remanded for a new punishment hearing. Id.

                                II — Sufficiency of the Evidence

       In assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts

“consider all the evidence in the light most favorable to the verdict and determine whether, based

on that evidence and reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44

(Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007));

Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard requires the appellate court to defer “to

the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Zuniga v. State, 551

S.W.3d 729, 732 (Tex. Crim. App. 2018) (quoting Jackson, 443 U.S. at 319). Each fact need not



       3
          See TEX . PENAL CODE Ann. § 19.02(b)(1) (“A person commits an offense if he . . .
intentionally or knowingly causes the death of an individual”).
       4
          See id. § 19.02(b)(2) (“A person commits an offense if he . . . intends to cause serious
bodily injury and commits an act clearly dangerous to human life that causes the death of an
individual”).
                                                                                                     5

point directly and independently to guilt if the cumulative force of all incriminating circumstances

is sufficient to support the conviction. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018)

(citing Hooper, 214 S.W.3d at 13). It is not necessary that the evidence directly prove the defendant’s

guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant’s guilt,

and circumstantial evidence can alone be sufficient to establish guilt. Id.

       An appellate court cannot act as a thirteenth juror and make its own assessment of the

evidence. Id.; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Instead, the appellate

court’s role is restricted to guarding against the rare occurrence when the factfinder does not act

rationally. Nisbett, 552 S.W.3d at 262; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

This rationality requirement is a key, explicit component of the Jackson sufficiency standard. See

Jackson, 443 U.S. at 319 (“[T]he 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.”) (emphasis added).

       Thus, a reviewing court is not to simply determine whether there is evidence that supports

the verdict, and, if so, declare that the evidence is legally sufficient. “[T]he Jackson v. Virginia

standard is not a ‘no evidence’ standard.” Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim. App. 2000)

(McCormick, P.J., dissenting). The Jackson standard “requires the reviewing court to consider all

the evidence in the ‘light most favorable to the verdict,’ and then it requires the reviewing court to

decide whether the jury’s finding is ‘rational.’” Id. (emphasis in original).5


       5
         “[A]ll of the evidence is to be considered.” Jackson, 443 U.S. at 319 (emphasis in original);
McDaniel v. Brown, 558 U.S. 120, 131 (2010) (“a reviewing court must consider all of the evidence
admitted at trial when considering a Jackson claim”). Thus, an argument that “direct and
circumstantial evidence against the jury’s verdict is ignored” in a proper Jackson sufficiency review
“is a misstatement of the law. In a legal-sufficiency analysis, no evidence is ‘ignored’ because the
                                                                                                     6

       Accordingly, while “[w]e are not to sit as a thirteenth juror reweighing the evidence or

deciding whether we believe the evidence established the element in contention beyond a reasonable

doubt . . . we are to ask ourselves whether the trier of fact, acting rationally, could have found the

evidence sufficient to establish the element beyond a reasonable doubt.” Blankenship v. State, 780

S.W.2d 198, 207 (Tex. Crim. App. 1988) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988)). “It is the obligation and responsibility of appellate courts ‘to ensure that the evidence

presented actually supports a conclusion that the defendant committed the crime that was charged.’”

Ross v. State, 543 S.W.3d 227, 234 n.14 (Tex. Crim. App. 2018), and Reynolds v. State, 543 S.W.3d

235, 241 n.10 (Tex. Crim. App. 2018) (both quoting Winfrey v. State, 323 S.W.3d 875, 882 (Tex.

Crim. App. 2010)); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “[W]e test the

evidence to see if it is at least conclusive enough for a reasonable factfinder to believe based on the

evidence that the element is established beyond a reasonable doubt.” Blankenship, 780 S.W.2d at

207 (citing Jackson, 443 U.S. at 318).

                  III — Could a Rational Jury Infer Intent to Cause Death?

       “Although the question is an exceedingly close one,” the court of appeals concluded that a

rational jury could find intent to cause death from evidence that Appellant got on top of Molina after

the takedown and evidence that Appellant left the scene.

       The court of appeals found it important that after Appellant tackled Molina, Appellant got

on top of Molina and punched him two or three more times. Citing Hall v. State, the court of appeals

took this as evidence of striking a helpless victim, which raises an inference that a fatal blow was



standard requires a reviewing court to view all of the evidence in the light most favorable to the
verdict.” Cary v. State, 507 S.W.3d 750, 759 n.8 (Tex. Crim. App. 2016) (emphasis in original).
                                                                                                       7

struck intentionally or knowingly. See Hall v. State, 970 S.W.2d 137, 140 (Tex. App.—Amarillo

1998, pet. ref’d). But while Hall did take into account evidence that the defendant struck the victim

after the victim was rendered helpless as evidence supporting intent to cause death, the Hall court

had much more than the additional strikes. The Hall court found “ample” evidence, consisting of:

        1) the disparity in size between [Hall] and Draper, 2) [Hall’s] repeated hitting and
        kicking of Draper as he sat on the ground in a stupor unable to defend himself, 3)
        [Hall’s] yelling at Draper during the assault, 4) the great force of the blows as
        evinced by [a witness’s] ability to hear them from inside her house, 5) [Hall’s] attack
        upon those who interceded, 6) the dire nature of Draper’s injuries, 7) [Hall’s]
        callousness towards his victim as evinced by the decision to leave the injured man
        on the ground and take his car once the beating ended, and 9) [Hall’s] resumption of
        the attack after coming back to the house to retrieve cigarettes.

Id. While there are some similarities between Hall and this case, the differences between the facts

of Hall and the facts of Appellant’s case are apparent. For instance, Appellant was smaller than

Molina. Additionally, Appellant’s fight with Molina was, by all accounts, very short-lived, whereas

the assault in Hall lasted five to fifteen minutes. Id. at 139. And, perhaps most significantly, the Hall

court made sure to note that:

        That the medical expert testified to various possible causes of the resulting head
        trauma and death does not change our conclusion. This is so because no one
        presented evidence indicating that Draper fell and struck his head. Nor was evidence
        presented indicating that anyone other than appellant struck the decedent.

Id. at 140. This case has exactly that evidence—Molina fell and struck his head on the sidewalk. This

was the sole cause of Molina’s death. In contrast, the medical expert in Hall opined that the victim

in that case, Draper, died from cranial hemorrhaging caused by blows to the head that, although

could have been caused by a fall, could have also been caused by a fist or a foot. Id. at 139. Hall is

distinguishable, and the court of appeals erred by relying on it to find intent to cause Molina’s death.

        The court of appeals also relied on Phillips v. State to find intent to cause Molina’s death,
                                                                                                       8

based upon evidence that Appellant left the scene, even though he knew that Molina was seriously

hurt. See Phillips v. State, 216 S.W.2d 213 (Tex. Crim. App. 1948). In Phillips, Phillips, the victim,

and a third man spent the night drinking in a rural area several miles east of Wichita Falls. Id. at 214.

Eventually, they got into a “difficulty” and the victim was knocked to the ground. Phillips and the

other man then returned to Wichita Falls, leaving the victim lying helpless in an unconscious or

semi-unconscious state on the side of the highway. Id. The victim’s dead body was discovered the

next morning in a barrow ditch. Id. We noted that the evidence showed that Phillips struck the

deceased three or four times with blows of great force, rupturing almost all of the arteries in the

brain. Id. We also noted that, after knocking the victim down, rendering him helpless and in an

unconscious or semi-conscious condition, Phillips dragged the victim to the edge of the road and left

him lying there. Id. We found that intent to kill could be inferred from those facts. Id.

        But just as Hall is distinguishable from this case, so too is Phillips. Unlike in Phillips, the

fight between Appellant and Molina occurred in the afternoon on a well-traveled road in a residential

area, and Appellant did not try to hide Molina’s body. Furthermore, the fight occurred in plain view

of neighbors and drivers on the road. But of those people, the court of appeals pointed out that

“Appellant had no basis to know the bystanders’ competence or willingness to assist the downed

man.” But the evidence showed that Appellant knew the bystanders were willing to assist Molina.

A woman on the porch of a nearby house was told to call the police, and two of the witnesses

actually called 9-1-1 for help. And not only was help called for, help did arrive and take Molina to

the hospital. This case is different from Phillips. The fact that Appellant and his friends left Molina

on the sidewalk, while bystanders were gathering around and some of which were calling 9-1-1, does

not reflect an intent to leave the man for dead.
                                                                                                       9

        Instead of being evidence of Appellant’s mental state during the fight, the evidence that

Appellant left the scene reflects his mental state after the fight. Indeed, the court of appeals took the

fact that Appellant left the scene, in combination with evidence showing that Appellant was later

aware that the police were looking for him that evening but stayed home, as evidence of flight. The

court of appeals correctly noted that evidence of flight from the scene of a crime is a circumstance

from which an inference of guilt may be drawn. Appellant argued that he left the scene because he

thought he might get into trouble, but the court of appeals discounted this explanation because “the

trier of fact was not required to accept” it.

        If the trier of fact was not required to accept that explanation, what other explanation could

there be? Fleeing the scene of a crime to avoid getting into trouble is the very reason evidence of

flight is relevant and probative of guilt. Evidence of flight shows that the defendant knew that

something bad happened and that, because he could get in trouble for it, he ran to avoid getting into

trouble. This makes evidence of flight useful to prove guilt where the defendant claims no

knowledge of or no involvement in the crime—if he wasn’t involved, why would he run and hide?

        Appellant’s argument, that he left the scene because he thought he might get into trouble, is

exactly the inference that can be made from evidence of flight. Such evidence of flight does no more

than show that he caused Molina’s injury. This was never in dispute. What the evidence of flight

does not do is show that Appellant intended to cause Molina’s death.

        In sum, I disagree with the court of appeals that the evidence was legally sufficient to show

that Appellant intended to cause Molina’s death.

          IV — Could a Rational Jury Infer Intent to Cause Serious Bodily Injury?

        The court of appeals found that intent to cause serious bodily injury could be inferred from
                                                                                                   10

the evidence that Appellant took Molina’s legs out from underneath him while on a concrete surface,

after which Appellant hit Molina in the face while his head was against the ground. According to the

court of appeals, “[t]hese actions raise at least an inference of acting with the conscious objective

or desire to create a substantial risk of death through causing serious bodily injury.” Gonzalez, 2019

WL 1553583 at *8.

       The court of appeals’s conclusion, I believe, is not based upon a consideration of all of the

evidence. The evidence includes not just the fact that Appellant used the takedown move on Molina

on an uneven concrete surface, but also evidence showing that Appellant and Medrano regularly used

the same takedown move on each other without injury. A rational jury could not conclude that

Appellant intended serious bodily injury through the use of the takedown move.

       When Medrano was fourteen or fifteen years old, he had trained for five or six months at a

boxing gym, and Medrano shared the moves he learned at boxing with Appellant. Gonzalez, 544

S.W.3d at 368. Similarly, Appellant showed Medrano judo moves that he learned from taking two

to three months of judo classes years before the incident. Id. One of the moves involved taking a

person down by grabbing their legs, picking them up, and using their own force against them. Id. The

two would practice and teach each other these skills two to three times a week. Id.

       While the State presented evidence that Appellant and Medrano had practiced these

takedown moves, from which a rational jury could infer that Appellant was aware that the takedown

move would cause the other person to fall down, the State failed to present any evidence to show that

Appellant knew the move could cause injury, much less serious bodily injury. There was no evidence

that Appellant, Medrano, or anyone else was injured as a result of the move before Appellant used

the move on Molina in this case. The State also failed to present evidence that Appellant was, at the
                                                                                                      11

very least, aware that using the move could cause an injury, even though the move never did in his

personal experience. Instead, the evidence produced at trial showed that the takedown move, while

practiced by Appellant and Medrano, did not cause injury, let alone a fatal head injury. Medrano and

Appellant’s repeated practices of the move upon each other without injury shows that Appellant was

unaware that the move could cause serious bodily injury. If Appellant was unaware that the

takedown move could cause an injury, how could he have had an intent to cause serious bodily injury

through use of that very same move? If, instead, there was evidence that Appellant, while teaching

and practicing the move with Medrano, discussed with Medrano about the dangers of the move

especially when performed on hard surfaces, the evidence would at least show he was aware of a

risk, and a jury could infer that he consciously disregarded the risk by his use of the move on Molina

in this case. Of course, such direct evidence of risk awareness is not always available, and awareness

of a risk can be inferred from circumstantial evidence.

        Justice Rodriguez, in her dissent below, found that Appellant’s use of the takedown move

on the sidewalk constituted conscious risk creation sufficient to support manslaughter. Gonzalez,

2019 WL 1553583 at *21. But manslaughter, which is defined as the reckless causing of death,6

requires not only conscious disregard of a risk but also awareness of that risk.7 Is there circumstantial

evidence from which the jury could infer awareness and thus recklessness? Arguably, there is.

Appellant and his friends were walking along the concrete sidewalk, and they had to be aware that



        6
          See TEX . PENAL CODE Ann. § 19.04(a) (“A person commits an offense if he recklessly
causes the death of an individual.”).
       7
           See TEX . PENAL CODE Ann. § 6.03(c) (“A person acts recklessly . . . with respect to . . . the
result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable
risk that . . . the result will occur.”).
                                                                                                    12

the sidewalk was made of concrete. And as discussed above, Appellant was aware that the takedown

move would cause the person it is used upon to fall. Thus, while the evidence is insufficient to

support murder, the dissent below raises a strong point that the evidence supports manslaughter, at

the most. Her suggestion to consider the possibility of reforming the judgment to show a conviction

for manslaughter is another reason to grant review.

       While the evidence probably shows that Appellant was reckless, it undoubtedly shows that

Appellant should have been aware that the moves he practiced with Medrano had the potential to be

dangerous. And Appellant should have been aware that performing the move outdoors on a sidewalk

was dangerous. But “should have been aware” makes a case for criminal negligence,8 not intent to

cause serious bodily injury.

            IV — Was the Takedown an Act Clearly Dangerous to Human Life?

       Even if Appellant caused Molina’s death while harboring a specific intent to cause serious

bodily injury, such intent alone is not enough to support a conviction for serious-bodily-injury

murder under § 19.02(b)(2). The second element of prosecution under § 19.02(b)(2) requires a

showing that the individual commits an act clearly dangerous to human life. Lugo-Lugo v. State, 650

S.W.2d 72, 81 (Tex. Crim. App. 1983). The character of the act clearly dangerous to human life is

measured by an objective standard. Id. I have reservations as to whether Appellant’s act in this

case—the takedown of Molina—meets that standard.

       The jury heard evidence that Appellant and Medrano routinely practiced takedown moves

with each other without incident. The jury did not hear evidence that the move used by Appellant


       8
           See TEX . PENAL CODE Ann. § 6.03(d) (“A person acts with criminal negligence . . . with
respect to . . . the result of his conduct when he ought to be aware of a substantial and unjustifiable
risk that . . . the result will occur.”).
                                                                                                   13

was inherently dangerous, let alone clearly dangerous to human life. Instead, the jury was presented

with evidence that the move was dangerous in this case, performed under the particular circumstance

of an uneven concrete surface. Outside of that circumstance, the takedown move was relatively safe,

and the evidence presented to the jury proves the point—there was one fatal injury against a context

of numerous unremarkable uses of the move without injury.

       Nevertheless, the court of appeals concluded that “undercutting someone’s feet in a way that

they might fall without the ability to brace themselves, and fall on a hard-uneven surface” is an act

clearly dangerous to human life. This was in contrast to situations in which the court of appeals

apparently would have found the very same takedown move to not be an act clearly dangerous to

human life, such as “a student felled in a padded Judo studio, or a gridiron running back who is

protected by padding and expecting a tackle.” Gonzalez, 2019 WL 1553583 at *9. The court of

appeals’s approach, finding that the takedown move is an act clearly dangerous to human life under

the specific circumstances of this case while on the other hand acknowledging that the same act is

safe in other circumstances, warrants review.

                                         V — Conclusion

       In conclusion, I would grant Appellant’s petition. The evidence in this case is, from the

record before us, insufficient to support a rational jury conclusion that Appellant intended to cause

death or intended to cause serious bodily injury, and the evidence may also be insufficient to support

a conclusion that Appellant’s takedown of Molina was an act clearly dangerous to human life.

Because the Court refuses review, I respectfully dissent.



Filed: April 8, 2020
                 14

Do Not Publish
