                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 JESUS MARCIAL LUNA, JR.,                       §
                                                                No. 08-13-00084-CR
                             Appellant,         §
                                                                   Appeal from the
 v.                                             §
                                                                 243rd District Court
 THE STATE OF TEXAS,                            §
                                                              of El Paso County, Texas
                             Appellee.          §
                                                                 (TC# 20110D05260)
                                                 §


                                          OPINION

       Appellant Jesus Marcial Luna was charged with engaging in organized criminal activity as

a member of a criminal street gang (Count I) and aggravated assault with a deadly weapon (Count

II). On appeal, he challenges the sufficiency of the evidence to support his conviction for each

offense and complains the trial court erroneously failed to submit assault as a lesser-included

offense of aggravated assault. We conclude the evidence was sufficient to support the jury’s

verdict on both counts, and that the trial court did not abuse its discretion in refusing to submit

assault as a lesser-included offense. Accordingly, we affirm the trial court’s judgment.

                                         BACKGROUND

       This case arises from the stabbing and shooting of Jesus Gomez by members of the Barrio

Azteca gang at a bar known as “Shooters.” Jesus Gomez had once been a member of the Surenos
gang and Mexican Mafia gang. Gomez, whose face is heavily tattooed, testified he is often

identified as an active gang member. On October 30, 2011, he went to Shooters to have a drink

with a co-worker. When Gomez was in the restroom, Appellant and Juan “Giant” Villegas – both

of whom were identified as Barrio Azteca gang members – blocked the door and informed

Appellant he was on “their land.” Gomez denied he was a Sureno and was allowed to leave the

restroom.

           Later that evening, Appellant, “Giant,” and others, some with knives, approached Gomez.

Gomez saw Appellant was holding a knife and asked Appellant whether he was going to “shank”

him. Gomez testified Appellant stabbed him twice, and when everyone began fighting, he felt

himself being stabbed again. Gomez began “throwing punches,” and felt something trip him; he

fell “sitting down,” and then grabbed someone’s knife, which sliced his fingers, and began

“hacking away.” He remembered being punched and kicked before blacking out. Emergency

medical personnel and police were dispatched to the bar, and Appellant, “Giant,” and another

Barrio Azteca member, Matthew Barajas, were arrested for the attack on Gomez.

           Appellant was charged in a two-count indictment. Count I alleged Appellant, with the

intent to participate as a member of the Barrio Azteca criminal street gang, committed aggravated

assault with a deadly weapon, a knife. See TEX. PENAL CODE ANN. § 71.02(a)(1)(West Supp.

2014). Count II alleged Appellant committed aggravated assault with a deadly weapon by

intentionally, knowingly, or recklessly causing bodily injury to Gomez by stabbing him with a

knife.1 See TEX. PENAL CODE ANN. § 22.02(a)(1)(West 2011). The jury found Appellant guilty

on both counts.



1
    The indictment also alleged aggravated assault by use of a firearm. That charge was not submitted to the jury.
                                                           2
                                         DISCUSSION

          Sufficiency of the Evidence of Engaging in Organized Criminal Activity

       In Issue One, Appellant contends the evidence is legally insufficient to support his

conviction for engaging in organized criminal activity because the State failed to prove that he

collaborated with a group in a continuing course of criminal activity. Appellant concedes the

evidence proved he committed a single act of assault with others “who happen to belong to the

same street gang.” But, he contends the evidence failed to establish he and the others conspired to

commit other crimes together in a continuing course of criminal activity. Appellant’s argument is

misplaced.

       A person commits the offense of engaging in organized criminal activity “if, with the intent

to establish, maintain, or participate in a combination or in the profits of a combination or as a

member of a criminal street gang, the person commits or conspires to commit” one or more

specified criminal acts. TEX. PENAL CODE ANN. § 71.02(a). Appellant’s contention that the

State was required to prove a continuing course of criminal activity is based on the statutory term

“combination.”    Section 71.01(a) defines a “combination” as three or more persons who

collaborate in carrying on criminal activities. TEX. PENAL CODE ANN. § 71.01(a)(West 2011).

The Court of Criminal Appeals has construed this language to require proof of a “continuing

course of criminal activities.” Nguyen v. State, 1 S.W.3d 694, 697 (Tex.Crim.App. 1999). It

involves more than the intent to merely commit an enumerated offense, a plan to commit a single

act, or proof of working jointly to commit a single crime—it requires proof of continuity. Hart v.

State, 89 S.W.3d 61, 63–64 (Tex.Crim.App. 2002); Nguyen, 1 S.W.3d at 696–97.

       The State, however, did not charge Appellant with participating “in a combination or in the


                                                3
profits of a combination.” Rather, the State’s indictment alleged that Appellant, “as a member of

a criminal street gang,” committed aggravated assault with a deadly weapon. Participating “in a

combination” or “as a member of a criminal street gang” are alternative ways of proving the

offense of engaging in organized criminal activity. Under the plain language of Section 71.02,

the State can establish a defendant engaged in organized criminal activity if it proves the defendant

committed the underlying criminal offense with the intent to establish, maintain, or participate (1)

in a combination, or (2) in the profits of a combination, or (3) as a member of a criminal street

gang. Curiel v. State, 243 S.W.3d 10, 15 (Tex.App – Houston [1st Dist.] 2007, pet. ref’d).

       Accordingly, the State was required to prove only that Appellant committed aggravated

assault with the intent to participate as a member of a criminal street gang; it was not required to

prove that Appellant intended to act in a combination or in the profits of a combination. See id.

(State was required to show appellant had the intent to establish, maintain, or participate as

member of a criminal street gang, but was not required to show appellant intended to act in a

combination, or in the profits of a combination, because those are alternative ways of proving the

offense of engaging in organized criminal activity). It follows that the State also was not required

to prove that Appellant collaborated with others in a continuing course of criminal activity.

       Appellant presents no argument or analysis regarding the sufficiency of the evidence to

support his conviction of engaging in organized criminal activity “as a member of a criminal street

gang.” The State argues Issue One is inadequately briefed, presents nothing for our review, and

has been waived. The State correctly asserts that we are barred from crafting Appellant’s legal

arguments for him. For purposes of this decision, however, we will assume the issue has not been

waived, and will proceed to examine the sufficiency of the evidence to support Appellant’s


                                                 4
conviction for engaging in organized criminal activity as a member of a criminal street gang, as

indicted.

                                       Standard of Review

       In conducting our legal sufficiency review, we view the evidence in the light most

favorable to the verdict to determine whether, based on that evidence and reasonable inferences

therefrom, a rational juror could have found the essential elements of the offense beyond a

reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App. 2011) (citing Jackson v.

Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We recognize that “our

role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility

of the record evidence and thereby substitute our judgment for that of the fact-finder.” Isassi v.

State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010) (quoting Dewberry v. State, 4 S.W.3d 735, 740

(Tex.Crim.App. 1999)). Rather, we defer to the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Isassi, 330 S.W.3d at 638. This same standard applies equally to circumstantial

and direct evidence. Id.; Laster v. State, 275 S.W.3d 512, 517–18 (Tex.Crim.App. 2009). “Our

role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act

rationally[.]” Laster, 275 S.W.3d at 517; see Isassi, 330 S.W.3d at 638. We will uphold the

verdict unless a rational fact finder must have had reasonable doubt as to any essential element.

Laster, 275 S.W.3d at 517-18.

                                             Analysis

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




                                                 5
hypothetically correct jury charge.2 Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.

2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)).                                     Under a

hypothetically correct jury charge, the State was required to prove beyond a reasonable doubt that

Appellant committed aggravated assault3 with a deadly weapon,4 a knife, “with the intent5 to

establish, maintain, or participate … as a member of a criminal street gang.” See TEX. PENAL

CODE ANN. § 71.02(a); Curiel, 243 S.W.3d at 16. Based on the evidence and the reasonable

inferences therefrom, we conclude a rational jury could have found Appellant committed

aggravated assault with a deadly weapon with the intent to participate as a member of Barrio

Azteca, a criminal street gang.

         First, the evidence was sufficient to show that Barrio Azteca was a criminal street gang.

The Texas Penal Code defines “criminal street gang” as three or more persons having a common

identifying sign or symbol or an identifiable leadership who continuously or regularly associate in
2
  A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried. Villarreal, 286 S.W.3d at 327. The
law, as authorized by the indictment, means the statutory elements of the charged offense as modified by the charging
instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).
3
 Aggravated assault is one of the enumerated offenses that can form the basis of engaging in organized criminal
activity. TEX. PENAL CODE ANN. § 71.02(a)(1)(West Supp. 2014). A person commits aggravated assault if the
person commits assault as defined in Section 22.01 and: (1) causes serious bodily injury to another, or (2) uses or
exhibits a deadly weapon during the commission of the assault. Id. at § 22.02(a)(1),(2)(West 2011). A person
commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. Id. at §
22.01(a)(1)(West Supp. 2014). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical
condition.” Id. at § 1.07(a)(8)(West Supp. 2014). “Serious bodily injury” is defined as “bodily injury that creates a
substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Id. at § 1.07(a)(46).
4
  A “deadly weapon” means “anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” Id. at § 1.07(a)(17)(B).
5
  Neither the indictment nor the jury charge required proof of intent to participate as a member of a criminal street
gang. In our review of the sufficiency of the evidence, however, we will determine whether the evidence is legally
sufficient to prove intent. See Fisher v. State, 887 S.W.2d 49, 55–58 (Tex.Crim.App. 1994), overruled on other
grounds, Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) (where indictment and jury charge are similarly
defective, hypothetically correct jury charge should allege all elements as set forth in the controlling penal statute in
order not to unconstitutionally broaden basis on which State may obtain conviction).
                                                           6
the commission of criminal activities. TEX. PENAL CODE ANN. § 71.01(d).

           Detective Andres Sanchez, a 25-year veteran of the El Paso Police Department, who had

been embedded in the gang unit for more than 12 years at the time of trial, testified that Barrio

Azteca is the primary gang he investigates. He described the history of the Barrio Azteca gang,

which was created in 1985 as a prison gang and now has street operations, and explained its ties to

El Paso, where the gang is also known as “El Chuco” and whose members refer to themselves as

“Indios.” The gang has a constitution as well as a command structure consisting of captains,

lieutenants, sergeants, soldiers, prospects, and “esquinas,” who are persons who assist the gang.

In 1993, the Texas Department of Corrections designated Barrio Azteca as a “true prison gang or a

security threat group.” Detective Sanchez testified that the members of Barrio Azteca are active

in drug trafficking, extortion, and money laundering. Barrio Azteca members commonly use and

are identified by Aztec symbols such as Aztec gods, goddesses, and headpieces, the sun, pyramids,

feathers, and the number “21” (representing the letters “B” for “Barrio,” and “A” for “Azteca”),

which are evident in imagery found in their homes and on their persons, often in the form of

tattoos.

           This evidence was sufficient to establish that Barrio Azteca is a criminal street gang. See

Gomez v. State, No. 08-12-00001-CR, 2014 WL 3408382, at *11 (Tex.App. – El Paso July 11,

2014, no pet.) (not designated for publication) (noting that “the FBI considers [Barrio Azteca] the

most problematic gang in the El Paso region”).

           Second the evidence was sufficient to allow the jury to reasonably infer that Appellant

intended to participate as a member of Barrio Azteca in assaulting Gomez. Detective Sanchez

discussed the criteria by which an individual may be identified as belonging to a criminal street


                                                    7
gang and, based on that criteria, identified Appellant, Juan “Giant” Villegas, and Matthew Barajas,

as Barrio Azteca gang members. Detective Sanchez specifically determined Appellant was a

member of the Barrio Azteca gang based on: Appellant’s non-judicial admission that he is a

member of a criminal street gang; his identification as a member of a criminal street gang by

another reliable individual; evidence that he has on five separate occasions frequented a

documented area of a criminal street gang and associated with known criminal street gang

members; his use of hand signals in more than an incidental manner; his relevant tattoos; and that

Appellant has four times been arrested or taken into custody with known gang members.

       Among the many photographs the jury had before it were photographs of Appellant using a

Barrio Azteca “21” hand sign and of his tattoos bearing Barrio Azteca imagery. The jury also

heard circumstantial evidence that Appellant had been housed with other Barrio Azteca gang

members after he was booked into the El Paso County Detention Facility.

       Detective Sanchez also opined that the assault on Gomez was gang related because there

were “three confirmed Barrio Azteca members associating with one another during the incident,”

and there were “derogatory comments against the Sureno gang, which . . . [considering] the

amount of violence that took place . . . is very [conclusive] of what Barrio Azteca does and what

they’re about.” Sanchez explained that incidents between Barrio Azteca and Surenos have been

ongoing since 2008. Further, Gomez, whose face is heavily tattooed, testified he is often

misidentified as an active gang member, and that when Appellant initially confronted him,

Appellant told him he was in Barrio Azteca “territory.” Gomez testified that protection of a

gang’s territory is vital to a gang’s ability “to succeed and make money,” and explained that to

protect its territory a gang may kill, extort, or kidnap to intimidate members of another gang.


                                                 8
       This evidence was sufficient to permit the jury to reasonably infer that Appellant was a

member, and acted with the intent to participate as a member, of the Barrio Azteca criminal street

gang in assaulting Gomez. See Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002)(direct

evidence of intent not required as jury may infer intent to commit aggravated assault as member of

criminal street gang from facts that tend to prove its existence, including acts, words, conduct, and

method of committing offense); Curiel, 243 S.W.3d at 17.

       Third, the evidence was sufficient to show that Appellant committed aggravated assault

with a deadly weapon. During his testimony, Gomez identified Appellant as the individual who

confronted him in the restroom and twice stabbed him with a knife, and stated that the attack left

him with permanent scars. The State presented evidence that Gomez suffered multiple stab

wounds to his abdomen, evisceration of the bowel, a stab wound to his right thigh, multiple

lacerations to his head and face, a laceration to his hand, as well as other injuries. Photographs of

Gomez’s wounds were admitted into evidence, and Gomez also testified that he suffered nine stab

wounds and had 12 inches of his intestines removed.

       Although a knife is not a deadly weapon per se, it can be a deadly weapon if the manner of

its use or intended use is capable of causing death or serious bodily injury. TEX. PENAL CODE

ANN. § 1.07(a)(17)(B)(West Supp. 2014); see Thomas v. State, 821 S.W.2d 616, 619

(Tex.Crim.App. 1991)(knife is not a deadly weapon per se); Tucker v. State, 274 S.W.3d 688,

691-92 (Tex.Crim.App. 2008)(a victim’s injuries alone may be sufficient to find that a deadly

weapon was used). Here, Gomez’s testimony that Appellant stabbed him, coupled with the

evidence of Gomez’s injuries, were sufficient for the jury to find Appellant used the knife as a

deadly weapon.


                                                 9
         Having measured the evidence by the elements of the offense as defined by a

hypothetically correct jury charge, we conclude the evidence is sufficient and permitted the jury to

reasonably find that Appellant, with the requisite intent and as a member of Barrio Azteca a

criminal street gang, committed aggravated assault on Jesus Gomez with a deadly weapon, a knife,

and used the knife in a manner capable of causing death or serious bodily injury. Issue One is

overruled.

                          Sufficiency of the Evidence of Aggravated Assault

         In Issue Two, Appellant contends the evidence is insufficient to support his conviction for

aggravated assault with a deadly weapon because the State failed to prove he acted as a party to the

stabbing of Jesus Gomez. Appellant supports his assertion with evidence that witness Perez

testified he searched Appellant when he arrived at Shooter’s and did not find or see Appellant with

a knife, and evidence that witness Ebarguen testified he saw nothing in Appellant’s hands at the

time of the attack. We understand Appellant to be arguing that he cannot be held directly

responsible for the stabbing because the two witnesses testified they did not observe Appellant in

possession of a knife, and that he cannot be held criminally responsible for the conduct of another

because the evidence is insufficient to show he acted with the intent to promote or assist the

stabbing by soliciting, encouraging, directing, aiding, or attempting to aid another person in the

commission of the offense.6 But, in addition to the evidence noted by Appellant, the State

presented other evidence that supports the jury’s finding that Appellant himself stabbed Gomez.

6
  The charge instructed the jury that a person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See TEX.
PENAL CODE ANN. § 7.01(a)(West 2011). It further instructed the jury that each party to an offense may be charged
with the commission of the offense, and that a person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the commission of the offense, he encourages, directs,
aids, or attempts to aid the other person to commit the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2)(West 2011).
The charge also instructed that mere presence at the scene of an offense will not make a person a party to an offense.

                                                         10
Gomez testified that Appellant was among the persons who initially accosted him in the restroom,

and stated that he later observed Appellant holding a knife when he was again confronted.

Gomez testified that after he asked Appellant whether he was going to “shank” him, Appellant

stabbed him twice. This is direct evidence from which the jury could have reasonably concluded

that Appellant, by his own conduct, committed the criminal offense of aggravated assault with a

deadly weapon as alleged in Count II of the indictment. Direct evidence of a fact is always legally

sufficient to support a finding of the fact. Goodman v. State, 66 S.W.3d 283, 286 (Tex.Crim.App.

2001).    Because this evidence supports the jury’s finding that Appellant’s own conduct

constituted aggravated assault with a deadly weapon, we need not address Appellant’s challenge to

the sufficiency of the evidence to support his conviction as a party criminally responsible for the

conduct of another. Issue Two is overruled.

                               Assault as a Lesser-Included Offense

         Appellant requested the trial court charge the jury on “simple” assault as a lesser-included

offense of aggravated assault with a deadly weapon as alleged in Count II of the indictment. In

Issue Three, Appellant contends the trial court erroneously denied his request. We conclude the

trial court did not abuse its discretion in denying the request, because the conduct constituting

simple assault was not the same as the conduct alleged in the indictment for aggravated assault.

                                         Standard of Review

         We conduct a two-step Aguilar/Rousseau analysis to determine whether the trial court

should have given the jury a lesser-included offense instruction. State v. Meru, 414 S.W.3d 159,

162 (Tex.Crim.App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012). First,

we must determine as a matter of law whether the requested instruction is indeed a lesser-included


                                                 11
offense of the offense charged. Meru, 414 S.W.3d at 162; Cavazos, 382 S.W.3d at 382; Hall v.

State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). To do this, we compare the elements of the

offense as alleged in the indictment with those of the requested lesser offense. Meru, 414 S.W.3d

at 162. Second, before the lesser offense should be submitted, there must be some evidence in the

record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of

the lesser offense. See Meru, 414 S.W.3d at 162-163 (citing Hall, 225 S.W.3d at 536); Guzman v.

State, 188 S.W.3d 185, 188–89 (Tex.Crim.App. 2006).

                                                    Analysis

        The Court of Criminal Appeals has made clear that simple assault7 is not necessarily a

lesser-included offense of aggravated assault.8 While simple assault may be a lesser-included

offense of aggravated assault in some cases, to constitute a lesser-included offense of aggravated

assault, the conduct constituting the assault must be the same as the conduct alleged in the

indictment for the aggravated assault. Irving v. State, 176 S.W.3d 842, 845–46 (Tex.Crim.App.

2005); see TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006) (“An offense is a lesser included

offense if … it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged[.]”). For instance, in Irving the Court held a simple assault

stemming from grabbing the victim and eventually falling on top of her, was not a lesser-included

offense of the alleged aggravated assault of attacking the victim and causing serious bodily injury

by hitting her with a baseball bat. Irving, 176 S.W.3d at 845–46.

7
 A person commits the offense of “simple” or misdemeanor assault if he, among other things, “intentionally,
knowingly, or recklessly causes bodily injury to another, including the person's spouse[.]” TEX. PENAL CODE ANN. §
22.01(a)(1).
8
  A person commits aggravated assault if he commits assault and “causes serious bodily injury to another, including
the person’s spouse” or “uses or exhibits a deadly weapon during the commission of the assault.” TEX. PENAL CODE
ANN. § 22.02(a)(1, 2).
                                                        12
        Here, like the appellant in Irving, Appellant is asking for a lesser-included offense

instruction based on facts not required to establish the commission of aggravated assault as

charged. That is, Appellant requested an instruction based on conduct different from the conduct

alleged in the indictment for aggravated assault. The relevant portion of the indictment for

aggravated assault alleged Appellant committed aggravated assault against Gomez by “stabbing

him about the body with a knife” and by causing Gomez serious bodily injury by stabbing him

with a knife. Here, Appellant is asking for an instruction for simple assault based on evidence

that Appellant only punched and kicked Gomez “with everyone else,” and that one witness

testified he did not see Appellant with a knife in his hands.

        The kicking and punching conduct which Appellant promotes on appeal as a basis for the

lesser-included instruction on assault is not the same conduct necessary to prove aggravated

assault by stabbing Gomez with a knife as alleged in the indictment. See Irving, 176 S.W.3d at

845–46. Where the conduct constituting the offense of assault that forms the basis for the

requested instruction is not the same as the conduct charged in the indictment for aggravated

assault, it is not a lesser-included offense of aggravated assault. Id. at 846 (“assault by means of

grabbing the victim and eventually falling on top of her is not a lesser-included offense of

aggravated assault by striking the victim with a bat” as alleged in the indictment). Because

assault by kicking and punching Gomez is not a lesser-included offense of aggravated assault by

stabbing Gomez with a knife, Appellant has not satisfied the first prong of the Aguilar/Rousseau

test.

        Therefore, the trial court did not abuse its discretion in denying the requested instruction.

Issue Three is overruled.


                                                 13
                                        CONCLUSION

       The trial court’s judgment is affirmed.



                                             STEVEN L. HUGHES, Justice

April 29, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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