                                                                                ACCEPTED
                                                                           04-14-00716-CR
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                      2/2/2015 11:48:31 PM
                                                                             KEITH HOTTLE
                                                                                    CLERK

                      IN THE COURT OF APPEALS
                  FOURTH SUPREME JUDICIAL DISTRICT
                         SAN ANTONIO, TEXAS                 FILED IN
                                                     4th COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                                                     2/2/2015 11:48:31 PM
                                                       KEITH E. HOTTLE
                               NO. 04-14-00716- CR           Clerk




                    FRANCISCO JAVIER AZUARA, JR.,
                              Appellant

                                       v.

                         THE STATE OF TEXAS,
                               Appellee

           APPEALED FROM 111TH JUDICIAL DISTRICT COURT
                       WEBB COUNTY TEXAS
                    CAUSE NO. 2014-CRM-389-D2
               Honorable Monica Z. Notzon, Judge Presiding


                         BRIEF FOR APPELLANT


ORAL ARGUMENT REQUESTED

OSCAR A. VELA, JR.
OSCAR A. VELA, JR., P.C.
1004 E. Hillside Rd., Ste. B
Telephone: (956) 568-0221
Facsimile: (956) 568-0052
State Bar No.: 24004967

Attorney for Appellant
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to the provisions of Rule 38.21(a), Texas Rules of Appellate

Procedure, a complete list of the names of all parties to this action and counsel are

as follows:

Appellant:                      Francisco Javier Azuara

Attorney for Appellant          Nathen Chu
At Trial:                       5517 McPherson Rd., Ste. 14
                                Laredo, Texas 78041

Attorneys for Appellant         Oscar A. Vela, Jr.
On Appeal:                      1004 E. Hillside Rd., Ste. B
                                Laredo, Texas 78041

Attorney for State:             Isidro R. Alaniz
                                Webb County District Attorney
                                1110 Victoria St., Suite 401
                                Laredo, Texas 78040

Trial Court:                    Honorable Monica Z. Notzon
                                District Court Judge
                                111th District Court
                                Webb County, Texas




                                         ii
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES...................................................................................... v

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED............................................................................................... 2

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 7

ARGUMENT
         I. Issue One: The evidence is legally insufficient to prove that Appellant
         committed the offense of aggravated assault with a deadly weapon “as a
         party by aiding” the shooting of each individual identified in Counts 1-7 of
         the Indictment or that he acted as a principal to such an offense. ................ 10

         II. Issue Two: The trial court erred by submitting an erroneous and defective
         jury charge on the law of parties without naming the principal or identifying
         the “aiding” conduct of Appellant ... ............................................................. 26

CONCLUSION ........................................................................................................ 29

CERTIFICATE OF SERVICE ................................................................................ 30




                                                         iii
                                   INDEX OF AUTHORITIES

CASES                                                                                                 PAGE

United States Supreme Court Decisions

Draper v. United States, 358 U.S. 307 (1959)......................................................... 11

Jackson v. Virgina, 443 U.S. 307 (1979) ................................................................. 10

Jacobellis v. Ohio, 378 U.S. 184 (1964) .................................................................. 10

United States Courts of Appeals Decisions

Clark v. Procunier, 755 F.2d 394 (5th Cir.1985) .................................................... 11

United States v. D’Amato, 39 F.3d 1249 (2nd Cir. 1994) ....................................... 11

United States v. Moreno, 185 F.3d 465 (5th Cir.1999),
cert denied, 528 U.S. 1095 (2000) ........................................................................... 11

State of Texas Decisions

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) ......................................... 10

Calvert v. Union Producing Co., 402 S.W.2d 221
(Tex.Civ.App.—Austin 1996, writ ref’d n.r.e.)....................................................... 11

Ervin v. State, 333 S.W.3d 187
(Tex.App.—Houston [1st Dist.] 2010, pet ref’d) .................................................... 24

Gross v. State, 380 S.W.3d 181 (Tex.Crim.App. 2012)…………………………..20
Mize v. State, 922 S.W.2d 175 (Tex.Crim.App.1996) ............................................. 22

Monroe v. State, 81 S.W. 726 (App.1904)……………………………………….19

Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App.2005)…………………….. 27


                                                      iv
Oaks v. State, 642 S.W.2d 174 (Tex.Crim. App.1982) .....................................19, 22

Pesina v. State, 949 S.W.2d 374 (Tex.App.-San Antonio 1997)…………………18
Rhyne v. State, 620 S.W.2d 599 (Tex. Crim. App. 1981)........................................ 22

Texas Employer’s Ins. Ass’n v. Goad, 622 S.W.2d 477
(Tex App.—Tyler 1981, no writ)............................................................................. 11

Valdez v. State, 92 S.W.3d 911…………………………………………………..19

Vasquez v. State, 389 S.W.3d 361 (Tex.Crim.App. 2012) ………………………29
Weaver v. State, 96 Tex. Crim. 506, 258 S.W. 171 (1924) ..................................... 11

Williams v. State, 410 S.W.3d 411 (Tex.App.-Texarkana 2013)………... 12, 19, 21
Wooden v., State, 101 S.W.3d 542
     (Tex.App.-Fort Worth 2013, pet. ref’d.) ……………………20, 2, 23, 24, 25

STATUTES                                                                                             PAGE

Tex. Code Crim. P. art. 36.13…………………………………………………12, 19
Tex. Penal Code Ann. § 7.02 .............................................................................19, 25

Tex. Penal Code Ann. § 22.01 ...........................................................................12, 23

Tex. Penal Code Ann. § 22.02 ...........................................................................12, 25




                                                      v
                           STATEMENT OF THE CASE

        On April 29, 2014, appellant pled not guilty to the offense of aggravated

assault with a deadly weapon. [CR1:22] [RR9:153].1 After a jury trial, Appellant

was found guilty of aggravated assault with a deadly weapon “as a party by

aiding.” [CR1:419-431, 432-436]. On July 28, 2014, Appellant was sentenced to

14 years and 6 months confinement in the Texas Department of Criminal Justice,

Institutional Division and a $2,500.00 fine per count of conviction. [CR1:454-456,

476].

        On October 6, 2014, Appellant’s motion for new trial was denied by the trial

court. [RR18:56]. On October 10, 2014, Appellant perfected this appeal by filing

his Notice of Appeal. [ CR1:622-623].




1 Appellant uses the following citations: Clerk’s Record will be cited as [CR#:#], where CR
refers to Clerk’s record, followed by volume number and the page number; Reporter’s
Record will be cited as [RR#:#], Where RR refers to the reporter’s record, followed by the
volume number and the page number; States Exhibit [SX#]; and Defendant’s Exhibit [DX#].


                                            1
                              ISSUES PRESENTED

                                           I.

      The evidence is legally insufficient to prove that Appellant committed the

offense of aggravated assault with a deadly weapon “as a party by aiding” the

shooting of each individual identified in Counts 1 – 7 of the Indictment or that he

acted as a principal to such an offense.

                                           II.

      The trial court erred by submitting an erroneous and defective jury charge on

the law of parties without naming the principal or identifying the “aiding” conduct

of Appellant




                                           2
                           STATEMENT OF FACTS

      On July 7, 2013, a shooting occurred outside D.J.’s Republic night club

(herein after the “Club”) located in Laredo, Texas. [RR9:153]. As a result of the

shooting, a total of Seven (7) individuals were injured by gun shots fired into a

crowd gathered outside the front entrance of the night club. [RR9:153].

      According to the facts of the case on July 7, 2013, at approximately 1:38

AM, Alfonso Carlos Tamez (herein after “Tamez”), Francisco Javier Azuara

(herein after “Azuara” and/or “Appellant”), and Jessica Ortega (herein after

“Ortega”) (sometime collectively referred to as the “Parties”) arrived together to

the Club in a white H2 Hummer (herein after “Hummer”). [RR11:198, 205, 209].

Appellant drove the Hummer to the Club and parked along the west side of the

Club on the sidewalk near the patio area. [RR10:206]; [RR11:205, 209, 218].

Upon parking the Hummer, the parties walked into the night club at 1:39 AM.

[RR11:198]. As the Parties walked through the Club, Ortega was hit on the head

with a beer bottle that someone threw. [RR9:154]. As Ortega, Azuara and Tamez

looked for the person responsible for throwing the bottle, another beer bottle hit

Tamez on the head. [RR9:184]; [RR10:149]. Shortly, thereafter, a fight broke out

and Tamez, Azuara and Ortega were escorted out of the Club. [RR11:73]. Azuara

was not alleged to have been involved in the fight. [RR9: 196]. A total of three

minutes elapsed between the time the Parties entered the Club and the time they



                                        3
were escorted out.    [RR11: 198]. During the same three minutes, several other

fights broke out and various other patrons were also being escorted out of the Club.

[RR9:184].

      Once outside the Club, several other fights broke out outside of the Club and

it was utter chaos. [RR9:187,189]; [RR10:150-151]. One of these fights occurred

“right by Molly Street” on the west side of the club. [RR10:151]. Punches were

being thrown by everyone and there were 10 to 15 people involved in the fight.

[RR10:241] [RR11:83]. However, the Parties were not involved in any of the

fights that took place outside the Club. [RR10:149]. At approximately 1:46 AM,

three (3) minutes after the Parties had been escorted out of the Club, shots rang out

and 7 people were injured. [RR11: 200]. 911 dispatchers received their first call at

1:51 AM. [RR9:174]. The gun shots allegedly came from the direction of Molly

Street which was located to the west of the Club and directly adjacent to the patio

area of the Club. [RR10:20, 93, 95, 104]; [SX108]. Several witnesses claimed the

shots came from an area to the west of the club near a parking lot across the street

(Molly Street) from the night club. [RR10:93, 95, 104]; [SX167]. Witnesses also

claimed the shots came from a dark SUV driving south on Molly street. [RR10:93,

95, 104]; RR11:16, 76-77, 87]. Additionally, several vehicles were identified as

being near the area where the shots were alleged to have originated. [RR10:45].

Witnesses identified a red dodge pickup, a white SUV, a dark colored SUV, and a



                                         4
yellow mustang. [RR9:157]; [RR10:45, 241]; [RR11:76-77, 181-182]; [SX3]. No

witnesses could identify the shooter, no witness saw a weapon, and no witness

positively identified any action committed by the Appellant.

      That same night at approximately 2:00 AM, a witness called Tamez to

inquire whether he was involved in the shooting. [RR10:80, 120]. Tamez denied

involvement and told the witness and officers that he wanted no problems and

wanted to clear his name. [RR10:121-123]. After this phone call, Tamez, Ortega,

and Appellant drove back to the club and met with law enforcement for over 6

hours to discuss the events that took place on the night of the shooting.

[RR11:179-180]. Appellant and the co-defendants drove back to the Club less than

1 hour from the time they had left the Club. [RR10: 120]. Appellant drove the

Hummer back to the Club and once they arrived, they all fully co-operated with

law enforcement officials. [RR10:76-77]. Appellant and the co-defendants were

padded down, searched and placed in separate patrol units for further investigation.

[RR10:76]. Appellant was cooperative, normal in disposition, and normal in

temperament. [RR10:108]. Appellant gave consent to search the Hummer and a

search was performed. [RR10:76-77, 107-108]. No weapons or other evidence was

found inside the Hummer or on the person of Appellant. [RR10:79]. Appellant and

the co-defendants submitted to questioning without counsel, they submitted to a

gun residue testing, they allowed law enforcement to inspect and search the



                                         5
Hummer, and they allowed law enforcement to search their homes. [RR: 11: 51-57,

179-193, 201-204, 247]. Additionally, Appellant and the co-defendant allowed law

enforcement to conduct a finger print analysis and gun residue test on the Hummer.

[RR11:136, 145]. At no time did Appellant or any of the co-defendants admit to

participating in the shooting made the basis of the indictment. At no time after the

shooting did anyone claim that Appellant was the shooter or a participant in the

shooting. See [RR9, 10, 11, 12].

      Appellant, Tamez, and Ortega were subsequently detained and transported to

the Laredo Police Department. [RR11:193]. Appellant was interviewed regarding

this incident. [RR11:193, 205-207] [SX165]. The interrogation lasted about an

hour and the interrogation revealed that Appellant was unaware that someone had

been shot or that he participated in the shooting. [RR11: 205-207]. After the

interrogation, Appellant gave investigators consent to search his home and nothing

was found. [RR11:51]. Appellant was subsequently allowed to return home and he

was not arrested.

      On March 26, 2014, a grand jury returned an indictment against all three

defendants. [CR1: 53]. Appellant was charged with aggravated assault with a

deadly weapon as a principal and as a party and was subsequently arrested.

[CR1:47-53].




                                         6
                      SUMMARY OF THE ARGUMENT

      This is a case of insufficient evidence. There is insufficient evidence in the

record to support a finding by the jury that the Appellant committed the act of

aggravated assault with a deadly weapon as a principal, and there is insufficient

evidence to find that Appellant used or knew that a gun was being used during the

commission of this offense. The record is also absent of evidence showing that

Appellant was aware a weapon was being possessed by any person in the vehicle

that he occupied or that any person would use a weapon during any alleged assault.

The record is further absent of evidence showing that Appellant was aware a

weapon was going to be used by any person in the vehicle he occupied.

      Additionally, there is insufficient evidence to support a conviction of

aggravated assault with a deadly weapon under a party liability theory. Under the

Texas law of parties, a person is criminally responsible for the acts of others when

that person acts with the intent to promote or assist the commission of the offense,

and solicits, encourages, aid, or attempts to aid the other person to commit the

offense. Tex. Pen. Code § 7.02. The record contains no indication that Appellant

knew the offense was occurring or was going to occur therefore negating the intent

element required to support the conviction of the offense. Although Appellant was

alleged to have been an occupant of the Hummer as it drove away from the Club,

Appellant did not have the requisite intent to be found criminally responsible for



                                         7
any of his co-defendants’ actions and there was no evidence that any of his co-

defendants committed any crime. In fact, his co-defendant Ortega was acquitted

on all counts. Additionally, no one could identify the shooter in the case and

neither co-defendant Tamez or Ortega were alleged to have possessed a gun, used

a gun, or shot any of the victims named in Count 1-7 of the amended indictment.

      Contrary to the conviction, there was no evidence that Appellant or his co-

defendants were involved in the shooting made the basis of the indictment. In fact,

originally during opening statements the State claimed that Appellant was alleged

to have been an occupant of the Hummer as the Parties left the Club and that an

occupant of the Hummer shot the victims named in the indictment. But as the trial

progressed, the State’s theory fell apart. At closing, the State abandoned their

original theory and now claimed that Appellant occupied a different vehicle and

was in fact the shooter. However, the record was devoid of any evidence that

showed Appellant was the shooter and there was no evidence that Appellant aided

a third party in any way. Additionally, had no motive or reason to commit the

crime of aggravated assault with a deadly weapon and he did not have any motive

to shoot anyone. Further, Appellant was not aware that a shooting was going to

take place, that a shooting took place, or that a weapon was present in the vehicle

he occupied. Additionally, there was no evidence that Appellant aided anyone in

any fashion as required for a conviction under the law of parties alleged by the



                                        8
State. In essence, this was a mere presence case and mere presence at the scene of

a crime is no evidence of guilt. As such, there is legally insufficient evidence to

support a conviction of Appellant as either a principal or under a party liability

theory.

        Further, the Court committed error in the jury charge by instructed the jury

that it could find Appellant guilty only under the law of parties and not as a

principal. The State nor the Court identified the principal in the jury charge and

did not identify how the Appellant aided any principal. As stated above, at closing

the State changed its theory and claimed Appellant was the shooter. However, the

State was mistaken and misstated the testimony of one witness who specifically

testified that Appellant had not shot her. Therefore, even the State was confused as

to the theory of their case and there representations doom the conviction in this

case.




                                          9
                                     ARGUMENT

I.    The evidence is legally insufficient to prove that Appellant committed
      the offense of aggravated assault with a deadly weapon by shooting the
      victims identified in the indictment or that he acted as a party to such
      offenses.

A.    Standard of Review

      The sole standard of review an appellate court should apply when

determining legal sufficiency of evidence to support a conviction is whether, after

viewing the evidence in the light most favorable to the State, 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. 307 (1979); Brooks v. State, 323 S.W.3d

893 (Tex.Crim.App.2010).

      In Jackson v. Virginia, the Supreme Court held that its previous “no

evidence” test was “simply inadequate to protect against misapplications of the

constitutional standard of reasonable doubt” because ‘“[a] mere modicum of

evidence may satisfy a ‘no evidence’ standard.”’ Jackson v. Virginia, 443, U.S. at

320, quoting Jacobellis v. Ohio, 378 U.S. 184, 202 (1964)(Warren, C.J.,

dissenting)).2 The question, then, is whether the evidence in this case is genuinely

legally sufficient, not whether there is some proof from which a conclusion of guilt

could be drawn.      If the evidence “gives equal or nearly equal circumstantial

2 A “mere modicum” of evidence was said to “include “any evidence that is relevant—that
has any tendency to make the existence of a crime slightly more probably that it would be
without evidence. Id.


                                            10
support to a theory of guilt and a theory of innocent of the crime charged, then a

reasonable jury must necessarily entertain a reasonable doubt.” Clark v. Procunier,

755 F.2d 394, 396 (5th Cir.1985); Weaver v. State, 96 Tex.Crim. 506, 258 S.W. 171

(1924); Texas Employer’s Ins. Ass’n v. Goad, 622 S.W.2d 477, 480 (Tex App.—

Tyler 1981, no writ); Calvert v. Union Producing Co., 402 S.W.2d 221, 227

(Tex.Civ.App.—Austin 1996, writ ref’d n.r.e.); See also United States v. Moreno,

185 F.3d 465, 471 (5th Cir.1999), cert denied, 528 U.S. 1095 (2000) (“While the

jury is free to choose among reasonable construction of the evidence, a verdict

cannot be affirmed if it is based on circumstantial evidence that is as consistent

with innocence as it is with guilt.”); United States v. D’Amato, 39 F.3d 1249, 1256

(2nd Cir. 1994) (evidence “at least as consistent with innocence as with guilt”

insufficient to support a guilty verdict) (internal question marks omitted). See also

Draper v. United States, 358 U.S. 307, 323-4 (1959) (Douglas, J., dissenting)

(“The law goes far to protect the citizen. Even suspicious acts observed

by…officers may be as consistent with innocence as with guilt.          That is not

enough, for even the guilty may not be implicated on suspicion alone.”)

B.    Principal liability

      Although the state abandoned their principal theory of liability by submitting

a jury charge which allowed a conviction against Appellant only under a party

theory of liability, Appellant addresses principal liability in abundance of caution.



                                         11
[CR1:419-431]. Although Appellant addresses the principal liability theory,

Appellant claims the Jury could not have convicted him as a principal in that the

jury charge permitted a conviction only under the law of parties as an aider. See

Tex. Code Crim. P. art. 36.13 (the jury is governed by the law it receives form the

Court); see also Williams v. State, 410 S.W.3d 411 (Tex.App.-Texarkana 2013)

(the jury is bound by the law it receives from the court).

      The offense of aggravated assault with a deadly weapon requires that a

person intentionally or knowingly commit the offense of assault as defined in

Section 22.01 of the Texas Penal Code and that the person: (1) causes serious

bodily injury to another, including the person’s spouse; or (2) uses or exhibits a

deadly weapon during the commission of an assault. Tex. Pen. Code §22.02 (a)(1),

(2). Section 22.01 of the Texas Penal Code provides that a person commits an

assault when a person (1) intentionally, knowingly, or recklessly causes bodily

injury to another, including the person’s spouse (2) intentionally or knowingly

threatens another with imminent bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with another when the

person knows or should reasonably believe that the other will regard the contact as

offensive or provocative.

      In this case, Appellant did not assault anyone nor did he use or exhibit a

deadly weapon (a firearm) during the commission of any assault. See [RR9,10,11,



                                          12
12]. Furthermore, the jury could not have found Appellant responsible as principal

because the Court instructed the jury only under a party theory of liability, namely

“a party by aiding”. See [CR1:419-432].

      After leaving the night club, there was no evidence that Appellant assaulted

anyone nor is there evidence that Appellant used or exhibited a deadly weapon

either individually or by aiding in the shooting of any of the victims in Counts 1-7

of the indictment.   During the trial, a total of 29 witnesses testified for the state

and not one witness identified Appellant as the shooter, nor did any witness

identify Appellant as using or exhibiting a deadly weapon during the shooting that

occurred on July 7, 2013. [RR9, 10, 11, 12].       The closest the State came to an

identification of Azuara as a principal was when a witness testified that a person

who may have exited a vehicle involved in the shooting resembled Azuara. In fact,

the State used Angel Cruz-Avitu’s testimony during closing arguments to claim

that Appellant was the shooter, but they were mistaken. [RR12:35].

      During his direct examination, Angel Cruz Avitu stated that he heard a

screeching sound, he saw a dark colored Expedition pull up, the passenger door

then opened, a person got out of the vehicle with a dark colored shirt wrapped

around his hand. Cruz-Avitu then stated that he turned around and then heard

shots fired. [RR11:76-78]. When asked by the prosecution what this person

looked like, Cruz-Avitu stated: “The person that I had described – I had said it was



                                         13
a Hispanic male. He was about, I believe, like kind of my height. He had a goatee,

mostly describing the gentleman right here.” [RR11:78]. Cruz-Avito then pointed

to Azuara and stated the person he was describing resembled Azuara. [RR11:78].

The state then ran with this statement and asked Cruz-Avitu: “And is that the same

Expedition that we’re talking about where you saw Mr. Azuara stepping out? Yes,

sir.”   However, Cruz-Avitu never stated that he saw Azuara stepping out of the

Expedition. [RR11:76-85]. Additionally, Cruz-Avitu responded “yes” in response

to the question if it was the same Expedition.

        The Defense clarified this point on cross examination when Mr. Amaya

asked Cruz-Avitu the following:

Mr. Amaya:         Okay. And are you sure it’s the gentleman that’s sitting here
                   that you saw, or you’re just saying that he looks like him?

Cruz-Avitu:        I’m just saying he looked like him.

Mr. Amaya:         And I want to get this right so that the Jury understands. You
                   are saying a Hispanic male about 5’9?

Cruz-Avitu:        Yes.

Mr. Amaya:         But you’re not saying it’s this gentleman?

Cruz-Avitu:        No.

[RR11:82].    Mr. Amaya went on and asked Cruz-Avitu about the person he

claimed exited the Expedition. Mr. Amaya asked the following:

Mr. Amaya:         Tell me if I get this wrong. He stops, the passenger door opens,
                   correct?

                                         14
Cruz-Avitu:       Yes.

Mr. Amaya:        A person gets up?

Cruz-Avitu:       Yes.

Mr. Amaya:        He had a gun? Did you see the gun?

Cruz-Avitu:       No, sir.

                  …

Mr. Amaya:        You never saw a gun flash?

Cruz-Avitu:       No. Not until I was hit already on the floor.

Mr. Amaya:        Okay. Then you turned around, correct?

Cruz-Avitu:       Uh-huh.

[RR11:84-85]. The Defense further asked Cruz-Avitu whether he saw any person

shoot at him. Mr. Chu asked the following:

Mr. Chu:          So you’re saying that somebody got out right here?

Cruz-Avitu:        Yes, sir.

Mr. Chu:          And was firing at you?

Cruz-Avitu:       No, sir.

Mr. Chu:          No?

Cruz-Avitu:       No. I didn’t say they fired. I said they had gotten off the
                  vehicle.

Mr. Chu:          Okay. But you’re not telling us or the Jury that that person that
                  got out fire a weapon?

                                        15
Cruz-Avitu:        Yes, sir. I’m not saying that.

Mr. Chu:           You don’t know who fired the weapon?

Cruz-Avitu:        No, sir. I don’t.

As for Cruz-Avitu’s statement that the person who exited the dark expedition had a

“goatee,” the Defense showed the Jury in SX163 (video file 0179) that neither

Azuara nor Tamez had a “goatee” on the night of the shooting. [RR12:56]. This

video was taken by surveillance cameras located at the front entrance of the Club

which captured Tamez, Azuara and Ortega as they entered the Club.        Therefore,

not only did Cruz-Avitu’s own testimony eliminate Azuara as the occupant of the

dark expedition, but so did the video surveillance taken at the Club because Azuara

did not have a “goatee.” [SX163, video file 0179].     In essence at the end of the

State’s case, there was no testimony that Azuara participated in the shooting in any

manner.

      As for the co-defendants, while several witnesses testified they thought co-

defendant Tamez was involved in the shooting, no witness testified that Tamez was

in fact the shooter. [RR9,10,11,12]. No witness testified to seeing any of the

occupants of the Hummer (Appellant, Ortega or Tamez) shooting, possessing a

firearm, or as using a firearm. [RR9:196-205]; [RR10:167, 184, 201-203, 241-

242]; [RR11:13-14]. Additionally, while the State initially claimed the shot were

fired from the Hummer or a vehicle ahead of the Hummer this theory was flawed.

                                         16
During their case in chief, the States claimed the Hummer was in the middle of

Molly Street when the shots were fired, but that was not true. The Hummer was

parked on the sidewalk adjacent to the patio area located to the west of the Club.

[RR10:206]. From this position it was impossible for the Hummer to have been

located in the middle of Molly Street when the shots were fired. See [SX 87, 108,

167]. Additionally, as stated in the statement of facts, Appellant and his co-

defendants returned to the scene of the crime less than 1 hour after they left the

Club. They returned because a witness called Tamez to inquire whether he was

involved in the shooting. [RR10:80, 120]. Tamez denied involvement and told the

witness and officers that he wanted no problems and wanted to clear his name.

[RR10:121-123]. After this phone call, Tamez, Ortega, and Appellant drove back

to the club and met with law enforcement for over 6 hours to discuss the events

that took place on the night of the shooting. [RR11:179-180]. Appellant drove the

Hummer back to the Club and once they arrived, they all fully co-operated with

law enforcement officials. [RR10:76-77]. Appellant and the co-defendants were

padded down, searched and placed in separate patrol units for further investigation.

[RR10:76]. Appellant was cooperative, normal in disposition, and normal in

temperament. [RR10:108]. Appellant gave consent to search the Hummer and a

search was performed. [RR10:76-77, 107-108]. No weapons or other evidence

was found inside the Hummer or on the person of Appellant. [RR10:79].



                                        17
Appellants also submitted to questioning without counsel, they submitted to a gun

residue testing, they allowed law enforcement to inspect and search the Hummer,

and they allowed law enforcement to search their homes. [RR: 11: 51-57, 179-193,

201-204, 247]. Additionally, Appellant and the co-defendant allowed law

enforcement to conduct a finger print analysis and gun residue test on the Hummer.

[RR11:136, 145]. At no time did Appellant or any of the co-defendants admit to

participating in the shooting made the basis of the indictment and at no time did

law enforcement claim that Appellant was the shooter or a participant in the

shooting. See [RR9, 10, 11, 12].

      Subsequently, Appellant, Tamez, and Ortega were transported to the Laredo

Police Department and interviewed regarding the shooting. [RR11:193, 205-207]

[SX165]. The interrogation lasted about an hour and the interrogation revealed

that Appellant was unaware that someone had been shot or that he participated in

the shooting. [RR11: 205-207]. After the interrogation, Appellant gave

investigators consent to search his home and nothing was found. [RR11:51].

Appellant was subsequently allowed to return home and he was not arrested.

      Clearly, under the facts of this case, the record is absent of evidence that

Appellant possessed a gun, used a gun, saw any of the other defendants possess a

gun, use a gun, or even that he knew a gun was possessed by either of his co-

defendants.   Additionally, the victims testified that they did not witness who the



                                        18
shooter was and did not identify Appellant as a shooter or as a participant.

Accordingly, there is insufficient evidence to support a conviction of aggravated

assault with a deadly weapon under a principal liability theory. Pesina v. State,

949 S.W.2d 374 (Tex.App.-San Antonio 1997) (finding insufficient evidence of

direct liability where there was no direct evidence supporting the allegations that

appellant intentionally or knowingly and acting along or as a primary actor stabbed

the victim).

C.     Party Liability

       There is also insufficient evidence to support a conviction under the law of

parties.   To convict under this party theory, the State was required to prove

Appellant was criminally responsible by showing he was acting with intent to

promote or assist the commission of the offense, by soliciting, encouraging,

directing, aiding, or attempting to aid the other person in committing said offense.

Tex. Pen Code. § 7.02(a)(2). Additionally, under the law of parties, the State was

required to show more than mere presence to establish participation in a criminal

offense.   Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. 1981). Mere

presence or even knowledge of an offense do not make one a party to the offense.

Oaks v. State, 642 S.W.2d 174, 177 (Tex.Crim.App.1982); Monroe v. State, 81

S.W. 726, 727 (App.1904). (holding mere fact defendant who was present but did




                                        19
not participate or aid in homicide, concealed the offense for a time or failed to

report killing, did not make him guilty of any offense).

      In this case, the State chose to try Appellant on a theory of party liability and

submitted a jury charge reflecting criminal responsibility only on a party theory of

liability. [CR1:423-426].    By limiting itself and submitting a party theory of

liability the Jury could only convict Appellant if they found him responsible “as

party by aiding.” See Tex. Code Crim. P. art. 36.13 (the jury is governed by the

law it receives form the Court); see also Williams v. State, 410 S.W.3d 411

(Tex.App.-Texarkana 2013) (the jury is bound by the law it receives from the

court). However, the evidence was insufficient to support a conviction under the

law of parties. Additionally, the evidence was also insufficient because the

application paragraph of the jury charge contained not third party who Appellant

aided in the commission of the crime.         Without naming the third party that

Appellant aided, there was no manner for which the jury could convict Appellant

as an aider.

      As stated previously, the State established Appellant’s presence at the scene

of crime prior to the shooting. However, the state failed to establish that Appellant

was present during the shooting or that he participated in the shooting. No witness

identified Appellant as a party to the offense and no witness identified Appellant as

an aider.      There was no evidence that Appellant aided any principal in the



                                         20
commission of the offense. Gross v. State, 380 S.W.3d 181 (Tex.Crim.App. 2012)

(finding evidence insufficient to support conviction for murder under law of

parties; although defendant was present at the crime scene and possessed the

murder weapon, there was no evidence that indicated that defendant anticipated

that the person he was with would shoot the victim, there was no evidence that the

defendant assisted or encouraged the shooting, and there was no evidence of or

prior or contemporaneous plan to commit the murder); Wooden v. State, 101

S.W.3d 542, 547 (Tex.App.-Fort Worth 203, pet. ref’d) ( the evidence was legally

insufficient to support the defendant’s conviction as a party to aggravated robbery,

and thus, the defendant was entitled to an acquittal as there was no evidence that

the defendant knew a gun was in the car or that the defendant aided or encouraged

another passenger to threaten the witness with a gun, the defendant testified that he

did not see any weapons when the defendant and accomplices were looking around

the truck they attempted to rob); Williams v. State, 410 S.W.3d 411 (Tex.App.-

Texarkana 2013) (reversing and rendering judgment of acquittal when the evidence

failed to show that Williams committed aggravated assault either as a principal or

as a party to crime committed by Ramirez).

      While Appellant associated with co-defendants prior to and subsequent to

the shooting, his association with the co-defendants is no proof that Appellant

committed the crime of aggravated assault with a deadly weapon. Additionally,



                                         21
there is no evidence whatsoever that Appellant knew that any of his co-defendants

committed the crime charged or that his co-defendants committed any crime

whatsoever. To the contrary, the evidence shows that Appellant did not participate

in the shooting, he was not present when the shooting occurred, he did not possess

a firearm, he did not reach for a gun, he did not pass a gun to someone, he did not

shoot anyone, and he did not aid in any shooting. In fact, after learning that the

police suspected co-defendant Tamez committed the crime, Appellant and his co-

defendants returned to the scene of the shooting and submitted themselves to

police investigation. Additionally, no witness identified Appellant as a participant

in the shooting.   Without participation, Appellant could not have aided in the

shooting of any victim. His mere presence with the co-defendants prior to the

shooting is no evidence of guilt.   In essence, Appellant was merely present and

was an occupant of a vehicle that may have been associated with the shooting that

took place on the night of July 7, 2013.     There is no evidence that Appellant

assisted in the shooting, that an offense would be committed or that an offense was

committed. On the record of this case, there insufficient to convict Appellant of

aggravated assault with a deadly weapon as a party to that offense. “Standing

alone, proof that an accused was present at the scene of the crime or assisted the

primary actor in making his getaway is insufficient [to hold the accused criminally

responsible for the conduct of another].” Wooden v., State, 101 S.W.3d 542, 546



                                        22
(Tex.App.—Fort Worth 2003, pet. ref’d). The record lacks any evidence that

Appellant acted with the intent that any of the victims named in the indictment be

shot and his mere presence, if any, is insufficient to sustain a guilty verdict. Mize v.

State, 922 S.W.2d 175, 176 (Tex.Crim.App.1996); Oaks v. State, 642 S.W.2d

174,177 (Tex.Crim. App.1982); Rhyne v. State, 620 S.W.2d 599, 601

(Tex.Crim.App. 1981), Wooden, at 546.           The State failed to prove Appellant

intended to promote or assist any person by aiding any person in committing the

act of aggravate assault with a deadly weapon. See Wooden, at 546. The evidence

is therefore legally insufficient under this party liability theory as well.

D.    Aggravated Enhancement

      Lastly, there is no evidence that shows that Appellant knew a weapon was

being used or exhibited at any time while any other person committed the offense.

Neither did Appellant intend to cause bodily injury or know that any victim had

sustained any type of injury during the shooting.

      The offense of aggravated assault with a deadly weapon requires that the

actor intentionally or knowingly assault another person with the intent to inflict

serious bodily injury on him and uses or exhibits a deadly weapon during the

commission of the offense. Tex. Pen. Code 22.02. The record lacks any evidence

showing that Appellant himself ever used, exhibited, or even possessed a deadly

weapon. No witness identified him as the shooter in this case.                 No witness



                                           23
identified any other person as the shooter in this case. It is clear from the record

that there was no gun during Appellants presence at the scene of the crime and

there is no evidence that Appellant was a participant in the shooting.

      Additionally, no evidence was introduced to show that Appellant knew or

saw that any person had a deadly weapon or that Appellant was even aware of the

existence of a weapon in any vehicle he occupied.        The only eye-witness, the

victim, failed to testify about Appellant’s involvement with, or possession of, any

gun. As such the State failed to prove the necessary actions and intent required of

Appellant.

      There is also insufficient evidence to support a conviction under a party

liability theory. Aggravated offenses present the same standard under Texas case

law. “In order to convict a defendant as a party to an aggravated offense, the State

must prove that the defendant was criminally responsible for the aggravating

element.” Wooden at, 547-48 (Tex.App.—Fort Worth 2003, pet. ref’d); See also

Ervin v. State, 333 S.W.3d 187, 201 (Tex.App.—Houston [1st Dist.] 2010, pet

ref’d). Appellant claims that there was no evidence that he or any of the other co-

defendant’s possessed or used a weapon.         The evidence does not show that

Appellant knew anything about a gun. In fact, the record is devoid of any evidence

that show any of the defendants possessed a gun. Even if a rational jury could

have inferred that Appellant knew something had gone wrong or that someone had



                                         24
been shot, the evidence clearly does not show that he had knowledge of what the

object of the crime was or that he participated in it. The fact that Appellant may

have been an occupant of the Hummer is no evidence of a crime. Evidence at trial

did not reveal any evidence regarding Appellant’s knowledge of a weapon during

the incident. Without evidence suggesting his knowledge of a gun, possession of a

gun, or the disposal of a gun, a rational trier of fact could not have concluded

beyond a reasonable doubt that Appellant’s actions promoted or assisted any third

party with the use of a weapon or the commission of the crime of aggravated

assault with a deadly weapon. Tex. Pen. Code 22.02 (a)(1), (2); Tex. Pen Code. §

7.02(a)(2).

      Reading the criminal responsibility statute in conjunction with the

aggravated assault / enhancement statute, Appellant’s actions as charged to the jury

would have had to aid a third party in committing aggravated assault with a deadly

weapon. If Appellant’s act of simply being an occupant in the Hummer could not

have constituted being a party to aggravated assault with a deadly weapon, it

logically follows that he could not have assisted or promoted by aiding in the use

of a deadly weapon. See Wooden, at 546. Evidence did not show that Appellant

possessed a weapon or that he even knew a weapon existed. Without evidence

showing that Appellant somehow assisted or promoted a third party in causing

serious bodily injury to the victims, or the he had knowledge of a gun, a rational



                                        25
jury could not have found this essential element of assisting or promoting this

offense by aiding.

II.   The trial court erred in instructing the jury on the law of parties
      without identifying the principal actor.

      Jury charge errors are reviewed by considering two questions: (1) whether

error existed in the charge; and (2) whether sufficient harm resulted from the error

to compel reversal.. The degree of harm necessary for reversal under the second

inquiry depends on whether the appellant preserved the error. Id. at 743. If the

appellant objected to the charge, we will reverse if there is “some harm.” Id. If the

appellant failed to object, we will reverse only if there is “egregious harm.” Id. at

743-44. In this case, the jury charge error was preserved. [RR12:4-10].

      The trial submitted the case to the jury under the law of parties. [CR1:419-

432]. However, the jury charge was deficient because the charge failed to instruct

the jury correctly.   The trial court failed to name the principal in the application

paragraph of the jury charge. Additionally, the state admitted and conceded during

the charge conference that they did not know who the shooter was. (RR 11: 254).

STATE:       We just cannot – we don’t have direct evidence as to saying that it
             was for sure, in fact, one of the individuals. [RR 11:254]
…
COURT:       If you’re going to put the law of parties in, I’m going to require you
             put the mode in.
STATE:       Okay, Which is as to the specific factual scenario of which we’re s
             saying she aided, for instance, the codefendant Jesse Ortega?


                                         26
CHU:           All of them.
COURT:         All of them.
STATE:         Okay. Yeah, I know, but as to her, it has to be a factual – like for
               instance, let’s say the driver, with the codefendant aiding by being the
               driver.
COURT:         Whatever the facts are
…
COURT:         But whatever the facts are that are supported by the record has to be
               linked based upon the case. And I did see that they raised that motion
               the first day, so that has to happen.
STATE:         Okay. That’s fine, you Honor. That’s fine. We’ll provide that in more
               detail.
[RR 12:6-9].


       During the charge conference on the third version of the jury charge, the

Parties requested the state narrow the scope of it law of party’s theory. In the

Fourth and final draft of the jury charge, the state narrowed the scope of the law of

party’s theory by stating:

       “Now, if you find from the evidence, beyond a reasonable doubt, that
       on or about the 7th of day July, 2013, in Webb County, Texas, the
       defendant, Francisco Javier Azuara, Jr., as a party by aiding, did then
       and there intentionally, knowingly, or recklessly cause bodily injury
       to Angel Avitu-Cruz and did then and there use or exhibit a deadly
       weapon, to-wit: a firearm, during the commission of said assault, you
       will find the defendant guilty of aggravated assault with a deadly
       weapon as charged in the indictment.

The same application paragraph was repeated for each victim identified in the

indictment in counts 1-7. (CR1:423-426). Because a jury charge is the instrument



                                           27
by which the jury convicts, it must contain an accurate statement of the law and

must set out all the essential elements of the offense. Vasquez v. State, 389

S.W.3d 361 (Tex.Crim.App. 2012). By failing to name a third party or listing a

third party who the Appellant aided, the Jury could not have returned a verdict

under the law of parties. See, e.g., Vasquez v. State, 389 S.W. 3d 361 (Tex. Crim.

App. 2012) (commenting that although the trial judge did not name the principals

in the application paragraph, there was no dispute at trail that those two men were

the ones who actually carried guns, threatened Jenny and Zulma, and stole money

and other property from the women, and defendant admitted he acted as the driver

for his roommates, after they hatched the robbery scheme. From the confession, a

reasonable jury cold infer the appellant was the one who solicited, encourages, or

directed the others to commit the crime, and that he aided his roommates to carry

out the robbery). Here there was no third party named, no evidence of third party

action, and no admissions. The jury could therefore, not convict under the law of

parties.




                                        28
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

this Court to reverse his conviction and enter an order of acquittal. See Rule 80,

Tex.R.App.Pro. Alternatively, Appellant respectfully prays that this Court reverse

his conviction and remand the case to the trial court for further proceedings.

                                              Respectfully submitted,

                                              /s/ Oscar A. Vela, Jr.
                                              Oscar A. Vela, Jr.
                                              State Bar No. 24004967

                                              THE LAW OFFICE OF
                                              OSCAR A. VELA, JR., P.C.
                                              1004 E. Hillside Rd., Ste. B
                                              Laredo, Texas 78041
                                              Telephone: (956) 568-0221
                                              Facsimile: (956) 568-0052
                                              ovela@thevelafirm.com

                                              Attorney for Appellant




                                         29
                        CERTIFICATE OF SERVICE

      By affixing my signature above, I hereby certify that a true and correct copy

of the foregoing was hand-delivered/faxed to the Webb County District Attorney’s

Office 1110 Victoria Street, Suite 401, Laredo, Texas 78040, on February 2, 2015.

                                             /s/ Oscar A. Vela, Jr.




                                        30
