                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                  __________

                                  No. 11-3220
                                  ___________

                      ISIDRO FLORES TEXIDOR, JR.,
                                    Appellant

                                       v.

               LOUIS S. FOLINO, Superintendent, SCI Greene;
         ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
              SCHUYLKILL COUNTY DISTRICT ATTORNEY
                            ______________

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                     (D.C. Civ. Action No. 4-10-cv-01884)
                District Judge: Honorable William W. Caldwell
                                ______________

                  Submitted Under Third Circuit LAR 34.1(a)
                               June 24, 2014
                              ______________

       Before: FUENTES, GREENAWAY, JR., NYGAARD, Circuit Judges.

                       (Opinion Filed: August 5, 2014)

                                 ______________

                                    OPINION
                                 ______________



GREENAWAY, JR., Circuit Judge.
       Isidro Flores Texidor, Jr. (“Texidor”) appeals from an order entered by the District

Court denying his petition for a writ of habeas corpus. For the reasons discussed below,

we will affirm the order and deny Texidor’s request for habeas corpus relief.



I. FACTUAL BACKGROUND

       Because we write primarily for the parties who are familiar with the facts and

procedural history, we recount only the essential facts.

       On January 10, 2004, at approximately 2:30 am, Christine Pribish (“Pribish”),

Ryan Winkler (“Winkler”), Christine Gearhart (“Gearhart”), Gearhart’s three children,

and a man named Maurice were at Gearhart’s residence in Shenandoah, Pennsylvania.

While Gearhart and Maurice were asleep upstairs and Gearhart’s children were asleep in

the living room, there was a knock at the door. Pribish, who was in the kitchen with

Winkler, approached the door and was told “Man” 1 was at the door. Pribish awoke

Gearhart upstairs, who then went downstairs and opened the door. Once the door was

opened, Nazaniel Flores (“Flores”) and David Ortega, Jr. (“Ortega”), with Texidor,

pushed their way into the residence. Once inside, Texidor immediately placed Gearhart

into a headlock and put a gun to her head. Gearhart and Pribish were then directed into

the kitchen and told to sit on the floor. Flores brought Winkler, who had previously gone

upstairs, back to the kitchen and told him to lie on the floor, while Flores placed his foot

on the back of Winkler’s head.



       1
           Gearhart knew Nazaniel Flores as “Man” from prior drug related transactions.
                                              2
       Ortega tied Pribish’s hands with duct tape and attempted to do the same with

Gearhart, but she refused. Texidor then held a gun to Gearhart’s head, to persuade her to

comply, but when she refused again, Texidor hit her in the head with his gun. After this,

Gearhart consented to be tied.

       Once Gearhart, Pribish, and Winkler were secured in the kitchen, Texidor and

Flores proceeded upstairs. Gearhart testified to hearing a struggle upstairs and then a

gunshot. It was later determined that the bullet lodged itself in the coach where one of

Gearhart’s children were sleeping. Because the child screamed, Gearhart chewed

through the duct tape around her hands, checked on her child, and then proceeded

upstairs. Once upstairs, Gearhart found Flores rummaging through her dresser drawers.

When Texidor and Flores found no money or safe, Texidor, Flores, and Ortega departed

the residence.

       Texidor was apprehended, tried before a jury, and found guilty of one count of

robbery, three counts of aggravated assault, three counts of aggravated assault with a

deadly weapon, three counts of simple assault, two counts of unlawful restraint, and

criminal conspiracy. (App. 343-44.) The Court of Common Pleas sentenced Texidor to

an aggregate term of 198 to 396 months of imprisonment. (App. 406.) After he was

sentenced, Texidor filed a pro se notice of appeal to the Superior Court of Pennsylvania.

The Superior Court affirmed Texidor’s judgment of sentence, and the Supreme Court of

Pennsylvania denied Texidor’s petition for allowance of appeal. Texidor filed a pro se

Post Conviction Relief Act (“PCRA”) petition, which raised the issue of ineffective

assistance of counsel. The PCRA court denied Texidor’s petition, and the Superior Court
                                             3
of Pennsylvania affirmed. Texidor filed a motion for allowance of appeal with the

Pennsylvania Supreme Court, which was also denied.

       On September 9, 2010, Texidor filed a petition for habeas relief in the District

Court for the Middle District of Pennsylvania. The District Court, largely adopting the

Report and Recommendation of Magistrate Judge Martin Carlson, denied the petition for

habeas relief. This Court granted a certificate of appealability on the question of

“whether sufficient evidence in the trial record supports Texidor’s conviction of two

counts of aggravated assault with a deadly weapon and two counts of aggravated assault

against victims Pribish and Winkler.” (App. 4.)



II. JURISDICTION AND STANDARD OF REVIEW

       Texidor brought this action under 28 U.S.C. § 2254. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253. On this appeal, we exercise plenary review over the

District Court’s legal conclusions. See Alston v. Redman, 34 F.3d 1237, 1242 (3d Cir.

1994). Furthermore, “inasmuch as the district court relied on the state court record in

concluding that the evidence was insufficient to support the convictions, we will exercise

plenary review of that conclusion.” Orban v. Vaughn, 123 F.3d 727, 729 (3d Cir. 1997).



III. ANALYSIS

       Texidor seeks to have this Court vacate the judgment of sentence for his

conviction of aggravated assault and aggravated assault with a deadly weapon against

Winkler and Pribish. Texidor argues that he is entitled to relief pursuant to 28 U.S.C.
                                             4
§ 2254 because there was insufficient evidence produced at trial to establish the elements

necessary for conviction under Pennsylvania law. 2

       “The evidence is sufficient to support a conviction whenever, ‘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.’” Parker v.

Matthews, 132 S. Ct. 2148, 2152 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). A state court decision rejecting a sufficiency challenge may not be overturned

on federal habeas review unless the “decision was ‘objectively unreasonable.’” Cavazos

v. Smith, 132 S. Ct. 2, 4 (2011) (quoting Renico v. Lett, 559 U.S. 766, 768 (2010)).

       On this appeal we determine “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.” See Jackson v. Virginia, 443 U.S. at

319. We must apply the above standard “with explicit reference to the substantive

elements of the criminal offense as defined by state law.” Id. at 324 n.16.

       Under Pennsylvania law, a person is guilty of aggravated assault if he “attempts to

cause serious bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the value of human


       2
           Appellees seek to have this Court exercise its discretion to decline to review
three of the four counts on the theory that “‘the defendant remains sentenced in any event
. . . .” (Appellees’ Br. 5 (quoting Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir.
1986).) Given the possibility that Texidor may suffer collateral consequences, we find it
prudent to address the substantive issues surrounding all four claims and decline this
invitation. See Jones v. Zimmerman, 805 F.2d at 1128 (“The fact that a defendant may
possibly suffer collateral consequences, such as impaired parole eligibility, has been cited
as an objection to use of the practice.”).
                                              5
life . . . .” 18 Pa. Cons. Stat. § 2702(a)(1). Attempt of a criminal act is attributed to the

person when “with intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa. Cons. Stat. § 901(a); see

also Commonwealth v. Lopez, 654 A.2d 1150, 1154 (Pa. Super. 1995) (stating that

attempt is established “when the accused intentionally acts in a manner which constitutes

a substantial or significant step towards perpetrating serious bodily injury.”).

Pennsylvania courts have employed “a totality of the circumstances test, to be used on a

case-by-case basis, to determine whether a defendant possessed the intent to inflict

serious bodily injury.” Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006).

       Here, the record shows that there was sufficient evidence presented at trial to

enable the jury to conclude that Texidor had the requisite intent to inflict injury upon

Winkler and Pribish. As to Winkler, Texidor held the gun to Winkler’s head while his

accomplice held him down with his foot on Winkler’s neck. (See App. 335 (“We

understand that Appellant did not inflict actual bodily injury to Winkler. However,

Appellant did hold the weapon to Winkler’s head while Flores held the victim down with

his foot on Winkler’s neck.”).). Pribish was directed to get on the floor, and had her

hands tied down with duct tape. Gearhart was merely ten feet away from Pribish when

Gearhart’s refusal to get her hands taped led to Texidor “pistol-whipp[ing]” her. (See

App. 425-26, 440.) These circumstances conform to the kinds of cases in which

Pennsylvania courts have found that defendants had the state of mind required to be

guilty of aggravated assault. See Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa.

2006) (“Regarding the attempt element, there was sufficient evidence for the fact-finder
                                               6
to conclude appellant took a substantial step towards inflicting serious bodily injury since

he pushed a loaded gun against Wachter’s throat . . . .”); see also Commonwealth v.

Daniels, 354 A.2d 538 (Pa. 1976) (defendant fired a gun into crowd killing one man and

injuring another); Commonwealth v. Laing, 456 A.2d 204 (Pa. Super. 1983) (defendant

drove car into a crowd after having aimed it at one individual and then hit two people).

       Evidence presented at trial was also sufficient to sustain Texidor’s conviction for

aggravated assault with a deadly weapon against Pribish and Winkler. Under

Pennsylvania law, a person is guilty of aggravated assault with a deadly weapon when he

“attempts to cause or intentionally or knowingly causes bodily injury to another with a

deadly weapon . . . .” 18 Pa. Cons. Stat. § 2702(a)(4). The Pennsylvania statute defines

deadly weapon to include “[a]ny firearm, whether loaded or unloaded . . . .” 18 Pa. Cons.

Stat. § 2301. The record here is abundantly clear that Texidor possessed a firearm during

the break-in, and fired it in the presence of children. (See App. 428 (“I heard a loud bang,

and my daughter screamed Mommy, and I just jumped and I looked at Christine [Pribish]

and I said that was a gunshot, wasn’t it, and she said yea. And I wept running to my

daughter.”); App. 429 (“The bullet was lodged in the back of the couch . . . that

[Gearhart’s] daughter had been sleeping on . . . .”).) Under these factual circumstances, a

rational jury could have found that Texidor attempted to cause bodily injury with a

deadly weapon to Winkler and Pribish. See Cavazos v. Smith, 132 S. Ct. at 4 (“[I]t is the

responsibility of the jury—not the court—to decide what conclusions should be drawn

from evidence admitted at trial.”).



                                             7
      Therefore, we find that the evidence was sufficient to sustain the four convictions

of Texidor.



IV. CONCLUSION

      For the foregoing reasons, we will affirm the order of the District Court.




                                            8
