                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
 SERGIO RENE MONTEJANO,                                          No. 08-12-00235-CR
                                                 §
                   Appellant,                                          Appeal from the
                                                 §
 v.                                                               168th District Court
                                                 §
 THE STATE OF TEXAS,                                           of El Paso County, Texas
                                                 §
                   Appellee.                                     (TC# 20090D05687)
                                                 §

                                         OPINION

       Sergio Montejano appeals his conviction on one count of murder and five counts of

aggravated assault by threat stemming from a shooting spree in the Segundo Barrio

neighborhood of South El Paso. In six issues, Montejano challenges the evidence underpinning

each count of the jury’s verdict as legally insufficient. We affirm.

                                       BACKGROUND
                                      FACTUAL HISTORY
                                Confrontations on Seventh Street

       On October 4, 2009, Guadalupe De La Pena and his sister-in-law Carmen Marquez De La

Pena were walking Guadalupe’s dog along Seventh Street toward a bakery on St. Vrain Street in

South El Paso when both were approached from behind by an unfamiliar man. De la Pena later

identified the man as Appellant at trial. Appellant appeared to be holding something in his
pocket. Appellant asked De La Pena in Spanish “what neighborhood?” De La Pena responded

that he was “from nowhere.” Appellant responded he was from Alta Vista, and that meant you

“do shit and eat it.” Both Guadalupe and Carmen De La Pena testified that they thought

Appellant appeared to be drunk or somehow intoxicated. Eventually, Guadalupe and Carmen De

La Pena continued on to the bakery.

       A short time later, Luis Vera was unloading groceries at his home when he saw a man he

identified at trial as Appellant sitting about 15 feet away from him, cleaning a black gun. Vera

stated that Appellant looked like he had been drinking. Appellant stood up, pointed the gun at

Vera, and attempted to pull the trigger. Vera testified he heard the gun make three clicking

sounds, but that no bullets came out. Appellant became upset, said “fuck, it didn’t come out,”

and began reloading the gun. Vera testified that he felt horrible when Appellant had pointed the

gun at him, and that he thought about his wife and children. His wife then pulled him inside

their house.

       Following Vera’s encounter with the man he identified as Appellant, Norma Gonzalez De

Santos and her husband Juan Santos also encountered a young, light-skinned Hispanic man as

they attempted to walk down Seventh Street to the grocery store following Juan’s birthday dinner

in Ciudad Juarez, Mexico. Norma Gonzalez De Santos identified the man as Appellant in open

court. She also testified that she subsequently identified Appellant as the man she saw on the

street that day in a police photo lineup, although an El Paso Police Department detective denied

that she ever made an affirmative identification. Gonzalez De Santos testified that Appellant

approached her and her husband while holding a gun. He then pointed the gun at Norma before

aiming it at her husband and firing three rounds. Appellant then aimed the gun back at Norma

after her husband fell to the ground before lowering the gun and running away.



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        Guadalupe and Carmen De La Pena testified that they both heard gunshots, and that when

they looked outside, they saw a woman screaming in the street and a man lying on the ground.

Juan Santos was rushed to a nearby hospital, where he died of his injuries.

                                   Attack on SUV Near Armijo Park

        Earlier that same evening, Jose Mendoza and Ernesto Vargas had been spending time

with friends Roberto Rodriguez and Omar Muniz at Armijo Park, located on Seventh Street.

Mendoza testified that at one point, a man he later identified as Appellant came up to him at the

park, stood beside him without saying anything, and then left. At some point between 9 p.m. and

9:30 p.m., Mendoza and Vargas got into Mendoza’s car and talked for a while before deciding to

leave Armijo Park. Mendoza testified1 that as he drove away from Armijo Park on Florence

Street, he saw Appellant a second time walking down the street. Mendoza slowed down,

thinking that Appellant wanted to cross the street. Appellant then pointed a gun at the SUV and

without warning, fired two shots. Mendoza sped off, parked the SUV a few blocks away, and

then decided to return to Armijo Park to see if his friends were okay.

                               Shooter’s Flight through Segundo Barrio

        Carlos Enciso testified that he was playing basketball with a friend at Armijo Park.

Enciso further testified he saw a man with a gun nearby. The man then pointed the gun at Enciso

and said, “don’t get too close to me. If you come close, I’m going to hit you.” Then Appellant

ran toward some apartments, at some point throwing the gun away between Florence and

Campbell Streets. Enciso and some friends chased after Appellant in a white van in order to find

out where he was going. Enciso did not contact police until three days later. Enciso repeatedly

gave inconsistent testimony about whether only Appellant had a gun, or whether someone else in


1
 Although Ernesto Vargas was listed as the complaining witness in Count IV, Vargas did not testify at the trial
because he was on active duty with the United State military in Kuwait.

                                                      3
the van had a gun as well. Enciso admitted to taking three separate medications to help him

concentrate.

                              Appellant’s Arrest and Interrogation

       Following his arrest, Appellant gave a video recorded statement to police.             The

interrogation takes place entirely in Spanish. The trial court admitted, without objection, a

Spanish-language transcript of the interrogation with a side-by-side English translation, and

instructed the jury to use the video to judge Appellant’s demeanor and the English translation

transcript to assess the content of his testimony. In the video, following a waiver of his Miranda

rights, Appellant confessed to shooting a man who was walking with a woman near Armijo Park.

Appellant stated that he crossed into the United States from Ciudad Juarez, Mexico, using the

Santa Fe Street Bridge, which connects Juarez directly to Downtown El Paso. He was armed

with a .40 caliber black Taurus handgun he purchased for 1,000 pesos in Juarez that was

apparently not detected by customs agents when he crossed the international border. Appellant

explained to officers that his friend had been killed in Juarez, and Appellant decided he wanted

to know what it felt like to shoot somebody. He also denied being intoxicated at the time of the

interrogation, stating that he “sobered up.”

                               Police Investigation and Forensics

       During the course of the investigation, police spoke with Jorge Araiza, who resided on

Ochoa Street nearby. Araiza knew Appellant because Araiza’s uncle raised Appellant as an

adoptive son in Juarez. Araiza testified twice at trial. During his initial testimony, which he

gave in English, Araiza initially denied telling police that Appellant admitted to shooting a man

on the street when confronted with a written copy of his statement to police. Later, Ariaza

returned to the stand with appointed counsel and, speaking through a translator in Spanish,



                                                4
confirmed that he did tell police Appellant had approached him after the shootings and confessed

to being the shooter. According to Araiza, Appellant said that after the shootings, he had

changed his clothes, urinated on his hands to get rid of gunshot residue, and thrown the gun

away. Araiza testified that he did not see Appellant on a regular basis, but that he knew

Appellant regularly used alcohol, marijuana, and Rohypnol. Araiza also testified that he was

worried he would be charged with perjury if he did not change his testimony.

       Detective Deanne Hicks testified that police were initially looking for a white SUV

because a witness had complained that four individuals in an SUV had stopped him on the streets

and asked among themselves if “it was him” before driving off. The witness also thought he

may have seen a long gun in the car and heard the sound of a shotgun being racked. However,

Detective Hicks testified that once Araiza came forward with information about Appellant,

police stopped looking for the white SUV and instead focuses solely on Appellant as a suspect in

the murder.

       Forensic experts testified that all bullets collected from the area by investigators were

fired from the same gun. Fingerprints found on the cartridge casings did not contain enough

ridge detail to allow for a positive identification. Investigators never retrieved the gun.

                                      PROCEDURAL HISTORY

       The jury returned guilty verdicts on all six counts and assessed punishment at 25 years’

imprisonment for the murder charge in Count I, 10 years’ for Count II, 5 years’ each for Counts

III and IV, 2 years’ for Count V, and 10 years” for Count VI. The trial court entered judgment

on the verdict and ordered Appellant to pay $200,000.00 in restitution to Norma Gonzalez De

Santos and to Juan Santos’ son, Juan Jose. Montejano appealed.

                                           DISCUSSION



                                                  5
       In six issues, Appellant challenges the legal sufficiency of his convictions for murder and

aggravated assault. We find that the jury’s verdict rested on legally sufficient evidence.

                                       Standard of Review

       “In assessing the legal sufficiency of the evidence to support a criminal conviction, we

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.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-

89, 61 L.Ed.2d 560 (1979). We determine whether the inferences necessary to sustain conviction

are reasonable after reviewing “the combined and cumulative force of all the evidence” -- direct

or circumstantial, properly or improperly admitted -- as “viewed in the light most favorable to

the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). Where evidence

supports conflicting inferences, we presume the jury resolved any conflicts in favor of the State.

Id. “Each fact need not point directly and independently to the guilt of the appellant, as long as

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

conviction.” Hooper, 214 S.W.3d at 13. “We do not resolve any conflict of fact, weigh any

evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of

fact.” Saucedo v. State, No. 08-07-00147-CR, 2009 WL 1119596, at *3 (Tex.App.--El Paso Apr.

23, 2990, no pet.)(not designated for publication).

       In a case such as this one in which video evidence is present, we may review the

“‘indisputable visual evidence’ contained in [the] videotape” de novo. State v. Duran, 396

S.W.3d 563, 570 (Tex.Crim.App. 2013), citing Carmouche v. State, 10 S.W.3d 323, 332

(Tex.Crim.App. 2000)(appellate court need not defer to fact finder where “indisputable visual



                                                 6
evidence contradicting” testimony appears in record). However, “the appellate court must defer

to the trial judge’s factual finding on whether a witness actually saw what was depicted on a

videotape or heard what was said during a recorded conversation.” Duran, 396 S.W.3d at 570-

71.

                                    Murder of Juan Santos

       In Issue One, Appellant contends that the State failed to establish that Appellant

murdered Juan Santos by legally sufficient evidence. Specifically, he argues that a rational jury

could not find him guilty beyond a reasonable doubt because (1) Appellant was intoxicated in the

interrogation video shown to the jury, making his statements unreliable; (2) his statements to

police did not lead them to find the murder weapon, showing his confession was not credible;

and (3) police failed to follow up on other potential leads, including a lead on a white truck

spotted in the area, after Araiza told police Montejano had confessed to the shooting. The State

counters that Appellant’s confession was credible and its veracity a matter for the jury, but it

maintains that even apart from his confession and purported admission of guilt to Araiza, the

evidence is legally sufficient because eyewitness Norma Gonzalez De Santos identified

Appellant as her husband’s shooter. We agree.

                                     Elements of Murder

       We measure the legal sufficiency of a conviction against a “hypothetically correct” jury

charge setting out all the elements of a certain crime. Villarreal v. State, 286 S.W.3d 321, 327

(Tex.Crim.App. 2009).     As is relevant to this case, a person commits murder if he (1)

“intentionally or knowingly causes the death of an individual,” or (2) “intends to cause serious

bodily injury and commits an act clearly dangerous to human life that causes the death of an

individual . . . .” TEX.PENAL CODE ANN. § 19.02(b)(West 2011).



                                                7
                                            Analysis

       Although we take the evidence presented in the aggregate and not piecemeal, three

particular pieces of evidence adduced at trial support the legal sufficiency of the jury’s verdict.

First, during interrogation, Appellant confessed to shooting a man on the street because he

wanted to know what it felt like. These statements clearly evince that Appellant, by shooting

Santos, intended to either intentionally or knowingly cause his death, or else establish that he

intended to engage in conduct clearly dangerous to human life that led to Santos’ death.

       Appellant’s counsel argues that Appellant’s statement to police is not credible because it

contains inconsistencies and did not lead police to find the gun. It is the province of the jury to

weigh the testimony and resolve such conflicts. We note that during his confession, Appellant

used a great deal of detail in describing the gun as an automatic Taurus he purchased in Juarez

for 1,000 pesos, he admitted his presence in the general vicinity, and he confessed to

approaching a man and a woman in Segundo Barrio and shooting the man. Those factors

militate in favor of viewing the jury’s verdict as rational. Appellant’s counsel further maintains

that Appellant’s confession is unreliable because Araiza testified he believed Appellant was

drunk and high on Rohypnol at the time of the shootings, and the video evidence shows

Appellant was still intoxicated at the time of the interrogation. Although a copy of Appellant’s

interrogation video appears in the record, the video evidence on that point is ambiguous.

Appellant behaves somewhat strangely toward the beginning of the video, but when asked

directly if he is intoxicated during the interrogation, Appellant answers “No. Ya se me bajó.”

[Emphasis added]. In English, as the State’s transcript states, “No, I sobered up.” Given that the

video evidence is equivocal on the issue of intoxication, we defer to the jury in determining the

video evidence’s weight and veracity. See Duran, 396 S.W.3d at 570-71 (deference to jury in



                                                8
video assessments unless video evidence is incontrovertible). We cannot say that if the jury

believed Appellant’s confession, their choice to convict him of murder would be an irrational

decision unsupported by evidence beyond a reasonable doubt.

       Second, apart from Appellant’s confession to police, the jury could have believed

Araiza’s testimony that Appellant admitted to shooting a man. Although Araiza gave starkly

contradictory testimony at trial, the jury could have believed that Araiza told the full truth when

he was recalled to the stand due to his fear of being charged with perjury.            Appellant’s

confession as relayed through Araiza also weighs in favor of the verdict’s legal sufficiency.

       Finally barring Appellant’s confession to police and Araiza’s testimony, Norma Gonzalez

De Santos identified Appellant as her husband’s shooter in open court. Appellant correctly

points out that although Gonzalez De Santos testified that she identified Appellant in a police

photo line-up, Detective Pennington unequivocally stated that Gonzalez De Santos failed to

identify Appellant in a photo line-up immediately after the shooting. It was the jury’s province

to weigh this evidence and resolve the conflict between Gonzalez De Santos’ testimony and

Detective Pennington’s testimony, as well as the apparent inconsistencies within Gonzalez De

Santos’ own identification. Given Gonzalez De Santos’ identification of Appellant in open

court, we cannot say the jury’s verdict was irrational, since the testimony of a single eyewitness,

if believed by the jury, may constitute legally sufficient evidence supporting a conviction.

Jackson v. State, No. 08-09-00212-CR, 2011 WL 63109, at *4 (Tex.App.—El Paso Jan. 5, 2011,

no pet.)(not designated for publication).

       Appellant complains that police did not fully investigate reports of the white SUV or van

in the area at the time and argues that the presence of possible other shooters vitiates proof of

Appellant’s guilt beyond a reasonable doubt. However, the report of the white van in the area is



                                                9
consistent with Enciso’s testimony that he and friends searched for Appellant in a white van after

the shootings. Even considering this alternate theory, taking the force and weight of all record

evidence in the aggregate and resolving conflicts in the verdict’s favor, we cannot say that the

jury’s murder verdict was legally insufficient under the Jackson standard.

       Issue One is overruled.

                                      Aggravated Assaults

       In Issues Two through Six, Appellant maintains that the evidence is legally insufficient to

show he committed aggravated assault against Norma Gonzalez De Santos, Jose Mendoza,

Ernesto Rodriguez Vargas, Carlos Enciso, and Luis Vera, respectively. Specifically, Appellant

asserts that the State failed to offer sufficient evidence that each named party actually perceived

a threat of imminent bodily harm. We disagree.

                                 Elements of Aggravated Assault

       A person commits aggravated assault by threat if he or she (1) intentionally or knowingly

threatens another with imminent bodily injury, and (2) used or exhibited a deadly weapon during

the commission of the assault. See TEX.PENAL CODE ANN. §§ 22.01(a), 22.02(a)(2)(West 2011

& West Supp. 2014).

                                            Analysis

       Appellant contends that the aggravated assault by threat conviction counts were legally

insufficient vis-à-vis the above-named individuals because the State failed to prove each of these

individuals actually, explicitly testified that they perceived a threat.     However, a victim’s

subjective perception of the threat is not dispositive in an aggravated assault by threat case.

Instead, the operative question is whether the defendant’s conduct would be perceived as

objectively threatening under the circumstances. See Olivas v. State, 203 S.W.3d 341, 346-47



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(Tex.Crim.App. 2006). In McGowan v. State, 664 S.W.2d 355, 357 (Tex.Crim.App. 1984), the

Court of Criminal Appeals held that there was legally insufficient evidence of a threat in an

aggravated assault by threat case where the perpetrator stabbed the victim in the back of the head

because the victim had not perceived a threat. However, as the court in Olivas noted, McGowan

is a case that is limited to its own facts. See 203 S.W.3d at 346-47. In McGowan, any person

stabbed from behind under those circumstances would not perceive a threat, rendering that

element of the crime legally insufficient under the circumstances. Id.

       The case at bar is easily distinguishable from McGowan. All witnesses testified that

Appellant either deliberately aimed a gun at them or fired or attempted to fire the gun at them.

Numerous cases from this Court and our sister courts have held that display of a deadly weapon,

the deliberate aiming of a gun at a person, or the firing of a deadly weapon may all be perceived

as threatening under certain circumstances. See, e.g., Danko v. State, No. 02-09-00386-CR, 2011

WL 167071, at *3 (Tex.App.--Fort Worth Jan. 20, 2011, pet. ref’d); Sosa v. State, 177 S.W.3d

227, 231 (Tex.App.--Houston [1st Dist.] 2005, no pet.); Fagan v. State, 362 S.W.3d 796, 799

(Tex.App.—Texarkana 2012, pet. ref’d).

       As demonstrated below, the evidence was legally sufficient to show Appellant committed

aggravated assault by threat against each victim.

                             Count Two: Norma Gonzales De Santos

       Norma Gonzalez De Santos testified that Appellant pointed the gun at her, then aimed at

her husband instead and shot him several times before re-aiming the gun back at her. As we

previously stated with regard to purported conflicts in her testimony regarding whether she

identified Appellant in a police photo line-up, it was the province of the jury to resolve those

conflicts and to decide how to weigh that evidence in relation to her identification of Appellant



                                                11
in open court. Based on the evidence presented, we believe a rational jury could have found that

Appellant committed aggravated assault by threat against Gonzalez De Santos beyond a

reasonable doubt.

          Issue Two is overruled.

                                      Count Three: Jose Mendoza

          Jose Mendoza testified that while he and his friend Ernesto were in Mendoza’s SUV,

they witnessed Appellant step out in front of the vehicle. Thinking that he was attempting to

cross the street, Mendoza slowed down. Appellant then stepped up to the window and shot

twice.     A rational jury could have believed the act of firing a weapon was objectively

threatening.

          Issue Three is overruled.

                               Count Four: Ernesto Rodriguez Vargas

          Vargas did not testify at trial, since he was deployed to Kuwait with the U.S. military.

Appellant maintains that no evidence in the record exists to show whether Vargas was awake or

asleep in the SUV at the time of the shooting. Since consciousness would affect a person’s

ability to objectively perceive a threat, and since the State had the burden of proof, Appellant

contends that no proof beyond a reasonable doubt exists to show Vargas’ ability to perceive a

threat.

          Jose Mendoza testified that after he and his friends decided to leave Armijo Park,

Mendoza and Vargas got into the SUV and talked for a while before eventually driving off. The

shooting occurred a short time later. Based on this evidence, a rational jury could infer that

Vargas was still conscious at the time of the shooting sufficient to perceive the objectively

threatening conduct and thus find that the aggravated assault by threat was consummated.



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       Issue Four is overruled.

                                   Count Five: Carlos Enciso

       The record testimony with regard to Enciso shows that Appellant pointed a gun at Enciso,

then ran away. Appellant argues that Enciso could not have felt threatened by Appellant’s

conduct because Enciso chased after him following their encounter.            Again, subjective

perception of the threat is not determinative; rather conduct that a reasonable person would

consider objectively threatening under the same circumstances establishes the “threat” element in

an aggravated assault by threat case. The offense is consummated by engaging in threatening

conduct without regard to any specific result.      Landrian v. State, 268 S.W.3d 532, 536

(Tex.Crim.App. 2008). Enciso’s behavior following the crime’s consummation is irrelevant to

the question of whether Appellant committed that crime. Id.

       Issue Five is overruled.

                                      Count Six: Luis Vera

       Luis Vera testified that Appellant pointed the gun at him and “shot three times, but the

bullets didn’t come out. I could just hear the click, click.” Appellant then became upset and

said, “Fuck, it didn’t come out.” Assuming as we must that the jury believed Vera’s testimony,

Appellant’s conduct would be objectively perceived as threatening under the circumstances by

any reasonable person.

       Appellant maintains that the jury could not have reasonably credited Vera’s testimony

because the incident occurred at nighttime, Vera misidentified the type of gun used, and because

Vera did not immediately report the incident to police. Given the proximity of Vera in relation

to Appellant and the stressful circumstances, these factors do not stand as a bar rendering

Appellant’s testimony incredible or the jury’s inferences derived therefrom irrational.      The



                                               13
evidence is legally sufficient as to the aggravated assault against Vera.

       Issue Six is overruled.

                                            Restitution

       Although Appellant failed to object in the trial court or bring the issue to this Court’s

attention in his brief, the State has requested in its brief that we vacate the trial court’s

$200,000.00 restitution judgment rendered against Appellant on Count I of the indictment, i.e.

the murder charge. The State reasons that the trial court lacked the statutory authority to grant

restitution to Juan Santos’ wife Norma and his son Juan Jose because there is no factual basis in

the record to support the restitution award, and because they are not “victims” eligible for

restitution under TEX.CODE CRIM.PROC. ANN. art. 56.01 (West Supp. 2014).

       We agree with the State’s assessment that under the statute as it is currently written,

Santos’ wife and son would not qualify as “victims” eligible for restitution, despite the emotional

hardship and pain they undoubtedly experienced from the death of their loved one. “In addition

to any fine authorized by law, the court that sentences a defendant convicted of an offense may

order the defendant to make restitution to any victim of the offense . . . .”           TEX.CODE

CRIM.PROC.ANN. art. 42.037 (West Supp. 2014). “The amount of restitution must be just, and it

must have a factual basis within the loss of the victim.” Campbell v. State, 5 S.W.3d 693, 696

(Tex.Crim.App. 1999)[Emphasis added]. A victim as contemplated by statute is the person

against whom the criminal conduct as charged in the indictment was committed. See TEX.CODE

CRIM.PROC.ANN. art. 56.01(a victim is “a person who is the victim of sexual assault, kidnapping,

aggravated robbery, trafficking of persons or injury to a child, elderly individual, or disabled

individual, or who has suffered bodily injury or death as a result of the criminal conduct of

another”).



                                                 14
       In this case, the victim of the murder entitled to restitution was Juan Santos, since he

suffered the direct consequences of the criminal conduct as charged in Count I of the indictment.

Id. As a technical matter, the trial court should have ordered restitution paid to Juan Santos’

estate before his wife and son could claim the proceeds through probate, assuming they were

legal heirs who were so entitled under his will or through intestacy. See Lemos v. State, 27

S.W.3d 42, 49 (Tex.App.--San Antonio 2000, pet. ref’d). Because the trial court failed to follow

this procedural step and instead awarded restitution directly to Norma and Juan Jose, who were

not the direct “victims” of the conduct charged in the murder count, the trial court’s restitution

order constituted legal error. We appreciate the State’s candor in bringing this issue to the

Court’s attention.

       However, this Court will not reform the trial court’s judgment to eliminate the award of

restitution. As with other legal errors, failure to object to a restitution award to the family

member of a crime victim when the family member is not a “victim” as defined by statute results

in waiver of the complaint on appeal. See id. at 47 (where trial court ordered restitution of

ambulance and treatment costs for aggravated robbery victim’s wife who experienced shock after

seeing her husband mortally wounded, appellant waived valid basis for deletion of that portion of

restitution by failing to object). Because Appellant failed to object to the award, error has been

waived, and this Court cannot alter the restitution judgment. Id. Thus, the trial court’s order

granting Norma Gonzalez De Santos and Juan Jose Santos will stand as-is.

                                        CONCLUSION

       Appellant’s Issues One through Six and the State’s cross-point on restitution are

overruled. The judgment of the trial court is affirmed.




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September 17, 2014
                                           YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J. (Not Participating)

(Do Not Publish)




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