                          NUMBER 13-14-00002-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

FRANCISCO JAVIER GONZALEZ,                                             Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 370th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Perkes and Longoria
             Memorandum Opinion by Justice Longoria
      By one issue, appellant Francisco Javier Gonzalez challenges the sufficiency of

the evidence supporting his conviction for first-degree murder. See TEX. PENAL CODE

ANN. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.). Appellant asks us to reform
the judgment to the lesser-included offense of manslaughter. See id. § 19.04 (West,

Westlaw through 2013 3d C.S.). We affirm.

                                       I. BACKGROUND

       In June of 2011, Javier Vargas lived in a residence on Daniel Road in Palmview,

Texas with his girlfriend, their children, Vargas’s sister Julissa Ramos, his niece, and his

nephews Adrian Salinas and Jonathan Ramos. At the time, Adrian was seventeen years-

old and Jonathan, the decedent, was sixteen. Vargas testified that Julissa moved out of

Vargas’s house and into appellant’s house when they began dating in October of 2010.

Julissa and appellant, who goes by the name “Indio,” later moved back into Vargas’s

house.   Shortly afterwards, Vargas asked appellant to move out because appellant

allegedly physically assaulted Julissa. Appellant moved to a nearby house on Daniel

Road where he lived with his grandmother and various other family members.

       On the evening of June 26, 2011, Jonathan and Adrian were on the back porch of

Vargas’s house drinking wine and smoking marijuana. Vargas asked them to come in

when Vargas went to bed at some point between 9:00 and 10:00 p.m. Adrian testified

that around 1:00 a.m., “[w]e were already going to bed, but John[athan] left for something.

For - - to see a girl, I think, and he came back yelling that someone - - that ‘Indio’ was

there.” Adrian testified that Jonathan took off running down the street towards the house

where appellant lived because appellant “was calling us out and everything from the

street.” Vargas testified that Adrian banged on Vargas’s door, woke him up, and they

both ran after Jonathan to calm him down. Vargas testified that appellant was “taunting”

Jonathan and “telling him to come and do something about it.” According to Vargas,

appellant then entered his van and went in the opposite direction of Vargas’s house.



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Vargas and Adrian caught up with Jonathan around the intersection of Daniel and King

Fisher Road and calmed him down. Appellant stopped the van at the intersection of

Daniel and Tordillo and continued taunting Jonathan with phrases such as “Come get me.

I’m going” and “I’ll kick your ass.” Jonathan ran in appellant’s direction again until Vargas

caught up to Jonathan and physically grabbed him. Vargas, Jonathan, and Salinas began

walking back to Vargas’s home while appellant reentered his van and began “revving his

engine.”

       According to Vargas and Adrian, they were walking on the left shoulder with Adrian

and Jonathan a short distance in front. Vargas did not see the van strike Jonathan, but

“heard a loud thump. The van was right next to us. I heard a loud thump, and saw

something land in the bushes.” Adrian testified that he heard “tires screeching” and the

van “was already coming full speed.” One of the van’s side mirrors narrowly missed

striking Vargas’s shoulder. Vargas found Jonathan face-down on the grass, with a “very

light pulse.” After striking Jonathan, the van flipped over, hit the fence on the side of the

road, and righted itself. Vargas ran towards the van as it was backing up, reached in

through the broken window, and grabbed appellant by his shirt. Vargas related that the

“window seal” caught Vargas’s arm, spun him around, and tossed him to the ground

where he was almost run over by the back tire. Vargas testified that he did not see anyone

in the van other than appellant. After Vargas fell off of the van, it drove away at a high

rate of speed. Marie Villarreal, a neighbor of both appellant and Jonathan’s family,

testified that she was sitting on her porch at the time. She observed appellant make the

U-turn and drive “straight at” where Jonathan and Adrian were walking. The remainder

of her testimony was substantively similar to the testimony of Vargas and Adrian.



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       After the van left, several neighbors came up and loaded Jonathan into the bed of

a pickup truck to take him to the hospital while Vargas ran back to his house to call police.

Jonathan died of his injuries on the way to the hospital. Police obtained a warrant for

appellant’s arrest. On July 8, 2013, the Border Patrol apprehended appellant when he

attempted to reenter the country from Mexico.

       Appellant gave a statement to Hidalgo County Sherriff’s Department Investigator

Juan Jose Vasquez that on the night of Jonathan’s death, appellant drove his friend Rigo

to appellant’s grandmother’s house because Rigo wanted to see his wife, who is

appellant’s cousin. When driving Rigo home, appellant made a U-turn where the street

terminated in a dead-end and drove back past his grandmother’s house. Appellant states

that the following occurred at that time:

       I heard loud noises like someone was throwing rocks or something at our
       van. I ducked down, kept driving and then I felt like I ran over some type of
       bump or something. Then I looked up and I was losing control of the van
       because it was going side to side and then I crashed into a fence. I looked
       around and I did not see Rigo in the van. The van turned off, so I turned it
       on, I backed up and drove away.

Appellant parked the van in a store parking lot near the Reynosa International Bridge and

crossed into Mexico.1 After serving a prison term in Mexico, he returned to the United

States.

       The State charged appellant by indictment with first-degree murder. Id. Appellant

pleaded not guilty, and the State tried the case to a jury. The jury returned a verdict of

guilty and assessed punishment at imprisonment for seventy years in the Texas

Department of Justice—Institutional Division, no fine, and court costs.

                                      II. SUFFICIENCY OF THE EVIDENCE


       1   The State’s brief informs us that police never located the van.

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         By his sole issue, appellant argues that the evidence is insufficient to establish that

he had the conscious intent or desire to strike Jonathan with the van to cause Jonathan’s

death.

         A. Standard of Review and Applicable Law

         In a legal-sufficiency review, we view all the evidence in the light most favorable to

the jury’s verdict and determine whether, based on that evidence and reasonable

inferences drawn from it, any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Anderson v. State, 416 S.W.3d 884, 888 (Tex.

Crim. App. 2013). We may not usurp the jury’s role by substituting our own judgment for

that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). It is

the responsibility of the jury, acting as the trier of fact, to resolve conflicts in the testimony,

weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Juries may draw “multiple

reasonable inferences” from the evidence so long as each inference is supported by the

evidence, but may not draw conclusions based only on speculation. Anderson, 416

S.W.3d at 888.       However, if the record merely supports conflicting inferences, we

presume the jury resolved any conflicts in favor of their verdict and defer to that resolution.

Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012).

         We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge for the case. Yzaguirre v. State, 394

S.W.3d 526, 528 (Tex. Crim. App. 2013) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)). The hypothetically correct charge is one that is authorized by the

indictment, accurately sets out the law, does not unnecessarily increase the State's



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burden of proof or unnecessarily restrict its theories of liability, and adequately describes

the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009). The hypothetically correct jury charge in this case would

require the State to prove that appellant: (1) intentionally or knowingly, (2) caused the

death of Jonathan; (3) by striking him with a deadly weapon, a motor vehicle. See TEX.

PENAL CODE ANN. § 19.02(b)(1).

        A person acts with intent with respect to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result. See Trevino

v. State, 228 S.W.3d 729, 755–56 (Tex. App.—Corpus Christi 2006, pet. ref'd); TEX.

PENAL CODE ANN. § 6.03(a) (West, Westlaw through 2013 3d C.S.). A person acts

knowingly with respect to a result of his conduct when he is aware that his conduct is

reasonably certain to cause the result. See Trevino, 228 S.W.3d at 756; TEX. PENAL CODE

ANN. § 6.03(b) (West, Westlaw through 2013 3d C.S.).                         Intent is most frequently

established via circumstantial evidence. Thompson v. State, 423 S.W.3d 475, 479 (Tex.

App.—San Antonio 2014, no pet.). The jury “may infer intent from any facts that tend to

prove its existence, such as the acts, words, and conduct of the defendant.” Id.; see

Trevino, 228 S.W.3d at 756.

        B. Discussion

        By his sole issue, appellant argues that the evidence is insufficient to establish that

he intentionally or knowingly acted to cause Jonathan’s death, but concedes that the

evidence does establish that he acted recklessly. 2 Appellant asks us to reform the


         2 See TEX. PENAL CODE ANN. § 6.03(c) (West, Westlaw through 2013 3d C.S.) (“A person acts

recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances
exist or the result will occur”).

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judgment of conviction to manslaughter, (which was one of the lesser-included offenses

submitted to the jury), vacate his sentence, and remand for a new punishment hearing.

See Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014) (reforming

judgment to lesser-included offense is available to the court of appeals as an alternative

to acquittal in some cases). We disagree with appellant’s argument and decline his

invitation to reform the judgment.

       Our review of the record revealed that the jury had the following circumstantial

evidence from which it could infer appellant’s intent: (1) appellant and Jonathan had a

history of conflicts over appellant’s alleged assaults of Jonathan’s mother; (2) appellant

taunted and invited Jonathan to fight several times that night, including when appellant

stopped his van almost immediately before appellant made a U-turn and struck Jonathan;

(3) testimony from several witnesses that immediately after taunting Jonathan, appellant

made a U-turn and accelerated at a “high rate of speed” down the road where he knew

Jonathan, Vargas, and Salinas were walking; (4) testimony from Villarreal that appellant

drove “straight at” Jonathan and Adrian while they were walking on the side of the street;

and (5) the fact that appellant fled from the scene despite Vargas’s efforts to stop him

and, by appellant’s own admission, fled to Mexico the same night and remained there for

over a year. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (providing

that a jury can draw inference of guilt from flight in some circumstances); see also

Almaguer v. State, No. 13-12-00605-CR, __ S.W.3d __, 2014 WL 1415182, at *17 (Tex.

App.—Corpus Christi Apr. 10, 2014, no pet.) (observing in the context of a harmless error

analysis that the defendant’s flight to Mexico immediately after the victim’s death “can be




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taken as consciousness of guilt”).3 Based on the foregoing evidence, we conclude that a

rational trier of fact could find beyond a reasonable doubt that appellant acted intentionally

or knowingly. See Anderson, 416 S.W.3d at 888. We overrule appellant’s sole issue.

                                              III. CONCLUSION

        We affirm the judgment of the trial court.




                                                          NORA L. LONGORIA
                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
28th day of August, 2014.




        3 Appellant cites to two cases with similar facts where the court of appeals upheld convictions for

manslaughter. However, neither case is relevant to his argument because both involved whether there
was sufficient evidence of recklessness to sustain a conviction for manslaughter. See Griffith v. State, 315
S.W.3d 648, 652 (Tex. App.—Eastland 2010, pet. ref'd); Dotson v. State, 146 S.W.3d 285, 295 (Tex. App.—
Fort Worth 2004, pet. ref'd).

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