                                    NUMBER
                                 13-11-00372-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JOHN ANTHONY TREVIÑO A/K/A “CHUKE”,                                      Appellant,


                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 24th District Court
                        of Victoria County, Texas.


                        MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Garza
      A jury convicted appellant, John Anthony Trevino a/k/a “Chuke,” of murder, a

first-degree felony, see TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West 2011), and

engaging in organized criminal activity, a first-degree felony, see id. § 71.02(a), (b)
(West Supp. 2011).           The jury imposed punishment at (1) life imprisonment and a

$10,000 fine for murder and (2) fifty years’ imprisonment and a $10,000 fine for

engaging in organized criminal activity.               The court ordered both sentences to run

consecutively to a prior twenty-year sentence imposed in 2005. By a single issue,

appellant contends the evidence is insufficient to support his convictions. We affirm.

                                             I. BACKGROUND

       The indictment alleged that appellant, a member of the criminal street gang

known as “Hermanos Pistoleros Latinos” (“HPL”), participated with other gang members

in the drive-by murder of Tim Hunt late in the evening on June 8, 2002 in Victoria,

Texas.1 Other HPL members alleged to have participated in the murder were Joe

Mendoza a/k/a “Loco,” Gilbert Llamas, Ramiro Eddie Salas a/k/a “Moose,” Oscar

Ramirez, and a person known only as “Roach.”2 Pursuant to agreements with the

State, Ramirez and Salas testified at trial.                 In addition, the State presented the

testimony of ten other witnesses.

       Appellant contends the evidence is insufficient to support his conviction because

of alleged inconsistencies in Ramirez’s testimony.                     Specifically, appellant notes the

following:     (1) Ramirez could not recall specifics regarding when the first drive-by

occurred and how many people were outside; (2) the firearm appellant was given for the

shooting was a pistol and Ramirez testified he cannot distinguish between a pistol shot

and a rifle shot; and (3) the vehicle in which Ramirez and appellant were riding had

tinted windows, suggesting that Ramirez could not see the intended target of the


       1
           Appellant was tried with a co-defendant, Gilbert Llamas a/k/a “Kilo G.”
       2
           Oscar Ramirez identified this individual as “Jeff Roach.”


                                                      2
shooting. After raising these questions about Ramirez’s testimony, appellant states in

his brief that he “respectfully submits that given the situation as the State’s own star

witness [Ramirez] described, [a]ppellant would be unable to engage in any organized

criminal activity, including murder, under these circumstances.”        Appellant’s brief

contains no further explanation or argument regarding how these questions about

Ramirez’s testimony render the evidence insufficient to support his conviction.

                     II. STANDARD OF REVIEW AND APPLICABLE LAW

      The court of criminal appeals has held that there is “no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard” and that the Jackson standard “is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.

2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,

we review claims of evidentiary insufficiency under “a rigorous and proper application of

the Jackson standard of review.” Id. at 906–07, 912. Under the Jackson standard, “the

relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99 (characterizing the Jackson standard as: “Considering all of the evidence in

the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt”). The fact-finder is the exclusive judge of the credibility of

witnesses and of the weight to be given to their testimony. Anderson v. State, 322



                                            3
S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the

evidence is within the fact-finder's exclusive province. Id. (citing Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies in the

testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000)).

       In reviewing the legal sufficiency of the evidence, we look at events occurring

before, during, and after the commission of the offense, and we may rely on actions of

the appellant that show an understanding and common design to do the prohibited act.

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point

directly and independently to the appellant’s guilt, so long as the cumulative effect of all

the incriminating facts are sufficient to support the conviction. Id.

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

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that 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 v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

       Section 71.02(a) of the penal code states, in pertinent part:

       § 71.02 Engaging in Organized Criminal Activity

       (a) A person commits an offense if, with the intent to establish, maintain,
           or participate in a combination or in the profits of a combination or in

                                              4
          the profits of a combination or as a member of a criminal street gang,
          the person commits or conspires to commit one or more of the
          following:

       (1) murder . . . .

TEX. PENAL CODE ANN. § 71.02(a)(1). Section 71.01 of the 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 the commission of

criminal activities.” Id. § 71.01(d) (West 2003). Thus, under section 71.02(a), to prove

that a defendant engaged in organized criminal activity, the State must prove that the

defendant committed a specific offense that is listed under that chapter—here,

murder—and that the defendant committed that offense “with the intent to establish,

maintain, or participate . . . as a member of a criminal street gang.”           See id. §

71.02(a)(1).

       A person commits murder if he “intentionally or knowingly causes the death of an

individual” or “intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual.” See id. § 19.02(b).

       We note that the jury charge contained an instruction on the law of parties. See

id. § 7.01(a) (West 2003) (stating that a person is guilty 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”). 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 solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense.”       Id. § 7.02(a)(2).   In determining whether an

individual is a party to an offense and bears criminal responsibility, the court may look to



                                             5
events before, during, and after the commission of the offense. Beardsley v. State, 738

S.W.2d 681, 684 (Tex. Crim. App. 1987). Circumstantial evidence may be sufficient to

show that one is a party to an offense. Id.

                                            III. DISCUSSION

       We first note that appellant’s brief neither makes a “clear and concise argument”

nor cites authority in support of his assertion that alleged inconsistencies in Ramirez’s

testimony render the evidence insufficient to support appellant’s his conviction. See

TEX. R. APP. P. 38.1(i). Nonetheless, in our sole discretion, we address his issue out of

an abundance of caution to ensure that appellant’s rights are protected. See Garza v.

State, 290 S.W.3d 489, 492 (Tex. App.—Corpus Christi 2009, pet. ref’d) (addressing

appellant’s sufficiency challenge “out of an abundance of caution”).

       As the State notes, reconciliation of conflicts in the evidence is within the fact-

finder’s exclusive province. Anderson, 322 S.W.3d at 405. Ramirez testified that he

drove the vehicle in the drive-by shooting, that appellant and Salas were in the back

seat, and “the guys in the back [seat] were shooting.” Ramirez testified that Llamas

ordered them to kill Fred Valdez,3 but they killed Tim Hunt instead.                    According to

Ramirez, after the killing, he and appellant were promoted within HPL from “prospecto”

status to “carnals.”

       Salas testified that he and appellant were in the back seat and Ramirez and

Roach were in the front seat during the drive-by shooting. According to Salas, appellant

was given a nine millimeter pistol to use in the shooting. Salas testified that appellant

fired the pistol multiple times out the back window in the direction of the house where


       3
           Valdez was ordered to be killed because he testified against another HPL member.


                                                    6
the intended victim had been seen. Salas stated that after the shooting, Ramirez and

appellant were promoted from the status of “prospecto” to “carnal” within HPL.

       Marcus Perez, another HPL member, testified that Joe Mendoza, another HPL

member, told him that appellant, Salas, and Ramirez were ordered to carry out the

drive-by shooting and that appellant was one of the shooters. Perez was also at the

HPL meeting when Ramirez and appellant were promoted as “carnals.” According to

Perez, the promotions were because Ramirez and appellant killed Hunt.

       We conclude the evidence is legally sufficient to support appellant’s convictions

for engaging in organized criminal activity and for committing murder under the law of

parties.

                                     IV. CONCLUSION

       We overrule appellant’s sole issue and affirm the trial court’s judgment.



                                                DORI CONTRERAS GARZA
                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
2nd day of August, 2012.




                                            7
