                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-17-00115-CR

                                        Albert DOMINGUEZ,
                                               Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 111th Judicial District Court, Webb County, Texas
                                Trial Court No. 2016CRN000387D2
                           Honorable Monica Z. Notzon, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: June 13, 2018

AFFIRMED

           Albert Dominguez was convicted by a jury of one count of murder, two counts of

aggravated assault with a deadly weapon, and one count of engaging in organized criminal activity.

On appeal, Dominguez challenges the sufficiency of the evidence to support his convictions.

Concluding that the evidence is sufficient, we affirm the trial court’s judgment.

                                            BACKGROUND

           Albert Dominguez and Jesus Alfaro picked up Ani Emily Jones and Litzi Rosales in a white

Xterra owned by Alfaro’s mother. Dominguez was the driver. Dominguez drove to Erik Ibarra’s
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house where he was handed two guns and a bag filled with newspaper that Dominguez was going

to use as “fake money” to buy marijuana from Julio César Garza. Photographs from a cell phone

showed Ibarra was hanging out around the same time with José Villegas, Jesús Rodriguez, Victor

Castillo, and Luís Garcia. Villegas’s white Titan truck and Ibarra’s F250 truck were also shown

in the photos. Before locating Julio to attempt the drug deal, Dominguez picked up another person

who was later identified as Luís Garcia. Dominguez handed Garcia one of the guns Ibarra had

given him and kept the other gun in his possession.

         Julio’s cousin Alfredo drove Julio to meet Dominguez to make the drug deal. Alfredo was

driving his minivan, and Jorge Aguilera was in the back seat. After driving around for some time,

Julio instructed Alfredo to follow a white Xterra. Eventually, the Xterra stopped and parked

behind a white Titan truck. Alfredo parked behind the Xterra, and a gray Cadillac that was

following Alfredo’s minivan parked behind Alfredo’s van. Julio exited the minivan and went to

speak to the driver of the Xterra. After a few seconds, Julio quickly returned to the minivan and

told Alfredo to drive away.

         Jones testified that Dominguez and Garcia exited the Xterra and began shooting at the van. 1

Alfaro also testified both Dominguez and Garcia were shooting toward the van. 2 Rosales testified


1
  After Jones testified Dominguez and Garcia both had guns, the prosecutor asked Jones what happened when they
got out of the car, and Jones replied, “Well, they start shooting.” When asked if they both started shooting, Jones
replied, “For sure the one in the back [Garcia] was shooting.” When asked if both guns were being used, Jones replied,
“I’m not sure if both, but I think — yeah, because I saw them shooting.” When the prosecutor asked Jones why she
thought both guns were shot, Jones replied, “Because I picked up my head.” When questioned by defense counsel,
Jones testified, “I picked up my head, and I saw when the guy in the back [Garcia] was shooting — and I’m pretty
sure Albert [Dominguez] was also shooting because I saw.” Defense counsel continued to question Jones as follows:
     Q.     When you were originally questioned you had said, I’m pretty sure about the guy in the back but not sure
            about Albert?
     A.     Yes.
     Q.     Isn’t that true?
     A.     Yes.
     Q.     And it’s not true because you had your head down?
     A.     Yes.
2
  Alfaro testified, “I heard shots, and that’s when I got down. And when I looked up, that’s when I saw the doors open
and I saw Albert shooting and the other guy shooting towards the green van.”

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Dominguez and Garcia exited the Xterra with guns, but she did not know if Dominguez was

shooting because she covered her face. Casings from two different guns were located at the scene

where the shooting occurred, and one officer testified the minivan had fourteen impacts from

bullets.

           During the shooting, Ibarra drove his truck and stopped next to the Titan truck, blocking

Alfredo’s minivan. Alfredo drove into Ibarra’s truck while attempting to maneuver around it and

was able to drive around the corner before his minivan stalled. Alfredo and Jorge exited the

minivan. As Alfredo was checking on Julio, the Titan truck and gray Cadillac pulled up. The

passenger exited the Titan truck and pointed his gun at Alfredo. The passenger looked inside the

van, returned to the Titan truck, and the Titan truck and gray Cadillac drove away.

           Julio died from a gunshot wound, and Jorge was shot in the back of the leg. Based on the

evidence collected during the investigation, Detective Michael Wu testified Villegas was driving

the Titan truck with Rodriguez in the passenger seat, and Castillo was driving the gray Cadillac.

           After hearing all of the evidence presented in a four-day trial, the jury found Dominguez

guilty of one count of murder, two counts of aggravated assault with a deadly weapon, and one

count of engaging in organized criminal activity. Dominguez appeals.

                                         STANDARD OF REVIEW

           In a legal sufficiency review, “[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.” Cary v. State, 507 S.W.3d 761, 766

(Tex. Crim. App. 2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “The evidence

is viewed in the light most favorable to the verdict because it is ‘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.’” Id. (quoting Jackson, 443 U.S. at 319). “Although
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an appellate court cannot act as a thirteenth juror and make its own assessment of the evidence, it

does act as a safeguard to ensure that the factfinder’s verdict is a rational one that is based on more

than a ‘mere modicum’ of evidence.” Id. (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.

Crim. App. 1988)). “[T]he factfinder is allowed to draw any reasonable inference that is supported

by the evidence,” and “[i]f the record supports reasonable, but conflicting, inferences, we presume

that the factfinder resolved the conflicts in favor of the conviction.” Id.

       “Legal sufficiency of the evidence ‘is measured by the elements of the offense as defined

by the hypothetically correct jury charge.’” Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App.

2016) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The hypothetically

correct jury charge ‘sets out the law, is authorized by the indictment, does not unnecessarily

increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.’” Id. at 89–90

(quoting Malik, 953 S.W.2d at 240).

       In this case, the jury was charged that it could find Dominguez guilty if the offense was

committed either (1) by his own conduct; or (2) as a party if, acting with the intent to promote or

assist the commission of the offense, he solicited, encouraged, directed, aided, or attempted to aid

Rodriguez, Ibarra, Castillo, Villegas, or Garcia to commit the offense. See TEX. PENAL CODE ANN.

§ 7.02(a)(2) (West 2011); Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015).

                MURDER AND AGGRAVATED ASSAULT WITH A DEADLY WEAPON

A.     Elements of the Offenses

       Under the theory charged in this case, a person commits the offense of murder if he

“intentionally or knowingly causes the death of an individual.” See TEX. PENAL CODE ANN.

§ 19.02(b)(1). The jury was instructed that Dominguez could be found guilty of murder by

shooting Julio with a deadly weapon, namely a firearm, either individually or as a party.
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       Under the theory charged in this case, a person commits the offense of assault “if the

person: (1) intentionally, knowingly, or recklessly causes bodily injury to another . . . ; [or] (2)

intentionally or knowingly threatens another with imminent bodily injury.” Id. § 22.01(a) (West.

Supp. 2017). A person commits the offense of aggravated assault with a deadly weapon if he

commits the offense of assault and “uses or exhibits a deadly weapon during the commission of

the assault.” Id. § 22.02(a)(2) (West 2011).

       In this case, Dominguez was charged with two counts of aggravated assault with a deadly

weapon.    For one count, the jury was instructed Dominguez could be found guilty if he

intentionally, knowingly, or recklessly caused bodily injury to Jorge by using a deadly weapon,

namely a firearm, either individually or as a party. For the other count, the jury was instructed

Dominguez could be found guilty if he intentionally or knowingly threatened Alfredo with

imminent bodily injury by using or exhibiting a deadly weapon, namely a firearm, either

individually or as a party.

B.     Discussion

       Dominguez argues the evidence is legally insufficient to support his convictions because

no rational jury could find beyond a reasonable doubt that Dominguez “discharged a firearm

during the incident in question.” In making this argument, Dominguez discounts Jones’s testimony

because she expressed uncertainty in response to some questions. Dominguez also discounts

Alfaro’s testimony because (1) Alfaro admitted to being under the influence of drugs, (2) he

suffered a subsequent brain injury which affected his memory, and (3) there were inconsistencies

between Alfaro’s testimony and Rosales’s testimony.

       Dominguez’s argument, however, ignores that it is within the exclusive province of the

jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable



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inferences from basic facts to ultimate facts.” See Cary, 507 S.W.3d at 766. Here, the jury heard

the following evidence:

         •   Dominguez and Garcia were both in possession of guns and both exited the
             Xterra at the scene of the shooting,
         •   two witnesses saw Dominguez and Garcia shooting at the minivan,
         •   the minivan had fourteen impacts from bullets, and
         •   cartridge casings from two different guns were recovered from the scene.

From this evidence, a rational jury could have found that Dominguez was shooting at the minivan.

Shooting at the minivan occupied by Julio is evidence of Dominguez’s intent to cause Julio’s

death. See Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981) (noting “where a deadly

weapon is fired at close range and death results the law presumes an intent to kill”); Evans v. State,

440 S.W.3d 107, 112 (Tex. App.—Waco 2013, pet. ref’d) (“If a deadly weapon is used in a deadly

manner, the inference of intent to kill is almost conclusive.”). Furthermore, shooting at the

minivan caused bodily injury to Jorge and threatened Alfredo with imminent bodily injury.

Therefore, from the testimony presented, a rational jury could have found that Dominguez was

guilty of murder and both counts of aggravated assault with a deadly weapon either individually

by shooting at the minivan or as a party assisting Garcia in shooting at the minivan. 3

                            ENGAGING IN ORGANIZED CRIMINAL ACTIVITY

         A person commits the offense of engaging in 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, the person commits or conspires to commit [the offense of]



3
  In discussing in his brief the aggravated assault on Alfredo, Dominguez focuses on the testimony that the passenger
in the Titan pointed a gun at Alfredo after the minivan had turned the corner and stopped. However, the jury could
have focused on the evidence that Alfredo was inside the minivan when the shots were fired at the minivan. See Pace
v. State, No. 02-14-00282-CR, 2015 WL 3855588, at *4 (Tex. App.—Fort Worth June 18, 2015, no pet.) (mem. op.,
not designated for publication) (noting “a rational jury could conclude that the occupants of the car—Suzanne and
Caylie—reasonably possessed a fear of imminent bodily injury when multiple shots from a firearm were fired at the
vehicle they occupied”).

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murder [or] aggravated assault.” TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2017); see

Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).

       In this case, Dominguez contends the evidence is legally insufficient to support his

conviction for engaging in organized criminal activity because the evidence is legally insufficient

to support his convictions for murder or for aggravated assault with a deadly weapon. Because,

as we have concluded, the evidence was sufficient to support Dominguez’s convictions for murder

and aggravated assault with a deadly weapon, we overrule this sufficiency challenge.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




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