                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS



                                                  §
  JUAN ANTONIO GONZALEZ,                                          No. 08-14-00293-CR
                                                  §
                         Appellant,                                   Appeal from
                                                  §
  v.                                                              346th District Court
                                                  §
  THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                  §
                         Appellee.                               (TC # 20120D05048)
                                                  §

                                     DISSENTING OPINION

       I, respectively, dissent. I would hold Appellant’s murder conviction is legally insufficient,

however, I do find the evidence supports a conviction for manslaughter. Accordingly, I would

reform the judgment to reflect a manslaughter conviction and order the trial court to conduct a new

punishment hearing.

       First, the majority acknowledges the nature of Molina’s injury in and of itself does not

demonstrate intent. The fact that Molina fell to the ground does not demonstrate the mens rea for

intentionally or knowingly causing a death. Further, Molina’s fatal head injury was caused by a

fall upon a sidewalk that was “irregular, having bumps, cracks” and a part which “jutted up like a

teepee.” Moreover, while the record reflects that Appellant and his friend, Medrano, at a friend’s
house, in a bedroom or living room, would practice a move involving taking a person down by

grabbing their legs, two or three times a week. The State failed to present any evidence that either

Appellant, Medrano or anyone else was injured or that they contemplated such a “move” was an

act clearly dangerous to human life. In fact, their repeated practices proved the opposite, that

particular “move” did not cause injury let alone a fatal head injury. But for the jutted concrete

teepee that Molina’s head made contact with, he may not have suffered the injury that caused his

death. Medrano and Appellant’s repeated practices of the “move” upon each other with no injury

shows Appellant did not intend to cause serious bodily injury, because he was unaware that it could

cause serious bodily injury. Arguably, the “move” alone is not fatal, only in conjunction with an

uneven concrete jutted surface. In my view, the “move” joined with an uneven, dangerous surface

created an unacceptable risk. This conscious risk creation is manslaughter. Lewis v. State, 529

S.W.2d 550, 553 (Tex.Crim.App. 1975).

       The majority also points to Appellant’s flight as indicia of his guilt. While there is no

question Appellant fled, his flight does not prove he is guilty of murder as opposed to manslaughter

or criminally negligent homicide. It allows an inference of guilt for to support a finding of any of

those three alternatives, murder, manslaughter or negligent homicide.

       Last, the majority relies on Appellant’s striking Molina while on the ground and leaving

Molina injured without rendering assistance to shore up the sufficiency of the murder conviction.

The majority cites to Phillips for the proposition leaving a victim helpless supports intentionally

and knowingly committing murder. In Phillips, the facts are brief:

               The record reflects that on the night of September 23, 1947, S. T.
               Sanders, Hubert Phillips, and the deceased, Leroy Farrabee, were
               together and had been drinking beer and whiskey. Late that night
               they purchased some more beer and drove out several miles East of
               Wichita Falls. After they had driven several miles they stopped,
               drank some more beer, and while thus entaged, [sic] appellant and

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               the deceased became involved in a difficulty, which resulted in
               Farrabee being knocked to the ground. Sanders and Phillips then
               returned to Wichita Falls leaving the deceased lying helpless and
               unconscious or semi-conscious on the side of the highway. The next
               morning the lifeless body of Leroy Farrabee was discovered in the
               barrow ditch.
Phillips v. State, 216 S.W.2d 213, 214 (Tex.Crim.App. 1948).

       Turning to the case at hand, Appellant’s encounter with Molina occurred late September,

in the afternoon, between 5 and 6, in a residential area. While the road can be heavily trafficked,

it was not on this day. Based on the record, the passing motorists that witnessed the incident and

stopped were Mario Ramos; Laura Mena; and Erin Lile. Another witness that passed away prior

to trial was a woman siting on the porch of an adjacent house who Molina told “call the cops, call

the police.” Other witnesses include Lile’s daughter that was in the car with her and a male

neighbor who were never called to testify.

       Ramos testifies that other cars had pulled over as Appellant and his friends walk away and

he calls 911. Once Ramos gets out of his car, there were several individuals standing around.

Mena stops and gets out of her car, as the teenagers walk off and as they are about two houses

away, she asks them to return. Mena immediately calls 911 as she observes Molina on the

sidewalk. Mena also informs 911 that Molina has a gun. Lile also stops and gets out from her car

with her daughter to call 911, but orders the girl back to the car when she sees Molina’s gun tucked

into his pants as he lies on the ground. Lile tells the person (Mena) on the phone with 911 to let

them know that the victim, Molina, has a gun. As Lile stands next to Molina he repeatedly

attempted to get up and she told him not to move.

       Phillips and this case are readily distinguishable. In Phillips, three individuals are drinking

late at night in a rural area, engage in a fist-a-cuffs in which the victim is left on the side of the

road to be discovered in the morning. Here, in the late afternoon, on a well-travelled road in a


                                                  3
residential area, in plain view of neighbors and drivers along the road, Appellant and Molina come

to blows. A woman on the porch of a nearby house is instructed to call the police, two of the

witnesses actually call 911, all the while Molina is attempting to get up with a gun tucked into the

back of his pants. The question is not whether any one of these witnesses could render assistance,

but rather was the victim left in a precarious medical state and in a place that was not easily

discoverable. The answer is no and Phillips does not apply.

       Ramos sees one punch, Appellant and Molina fall together, then Appellant gets up, all

within ten seconds. Mena relates she see the three teenagers and Molina appear as if they are

engaged in a confrontation, then after her u-turn, she sees the teenagers walking away with Molina

on the ground. According to Lile, while driving, she observed in her rearview mirror, Appellant

run into Molina causing him to fall. Under direct examination, Lile testifies she also sees Appellant

on top of Molina “pummeling” him. However, during cross-examination, she testifies to one

punch, the fall and after she makes a u-turn, observes Appellant get up and walk away. Medrano,

Appellant’s friend, testifies as soon as Molina falls, Appellant gets on top of him and punches him

twice. According to Ramos, the time between the fall and Appellant and his friends walking away

was ten seconds. Medrano relates that Appellant is on top of Molina no more than two to three

seconds, just enough time to throw 2 quick punches. The Appellant testified he punched Molina

twice and then knocked him down, in self-defense after Molina had hit him. Appellant fell on top

of Molina, feeling Molina trying to kick, Appellant punched him two times more and then got up.

Medrano and Appellant corroborate each other as to the number of times Molina is punched after

his fall, twice. Lile testifies to punches by Appellant while Molina is on the ground, but she does

not specify the number. This record offers little support that upon Molina’s fall he was instantly

unconscious and helpless. Lile’s testimony is that when she arrived upon the scene after the



                                                 4
teenagers had left, Molina was moving and turning, in an effort to get up, to such a degree that she

was able to observe the gun tucked in his back. In fact, she was so alarmed by the presence of the

gun, she ordered her daughter away.

       Appellant’s subsequent actions do not rise to the level that the mens rea of intentionally

and knowingly murder can be inferred on this record. Further, Appellant’s pulling Molina’s legs

out from under him does not constitute an act clearly dangerous to human life or support an

inference that Appellant acted with a conscious desire to create a substantial risk of death by

causing serious bodily injury.


April 10, 2019
                                      YVONNE T. RODRIGUEZ, Justice




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