                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00716-CR

                                    Francisco Javier AZUARA Jr.,
                                              Appellant

                                                 v.
                                            The STATE of
                                         The STATE of Texas,
                                               Appellee

                     From the 111th Judicial District Court, Webb County, Texas
                               Trial Court No. 2014-CRM-000389-D2
                           Honorable Monica Z. Notzon, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 5, 2015

AFFIRMED

           Francisco Javier Azuara Jr. was convicted by a jury of aggravated assault with a deadly

weapon causing bodily injury. On appeal, Azuara contends (1) the evidence is insufficient to

support his conviction, (2) the jury charge was defective, and (3) the trial court abused its discretion

in admitting hearsay testimony. We affirm the trial court’s judgment.

                                            BACKGROUND

           Just before closing time, a fight broke out inside a nightclub, and the bouncers escorted

those involved from the nightclub. Azuara and his two co-defendants, Alfonso Carlos Tamez and
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Jessica Ortega, arrived at the nightclub together a few minutes before the fight began, and several

witnesses testified that Tamez was involved in the fight. The video surveillance recording shows

Tamez, Azuara, and Ortega leave the nightclub together when the bouncers broke up the fight.

Around the same time, another fight broke out in the parking lot of the nightclub involving several

of the same participants. This fight was close to an exit from the nightclub’s parking lot to a street.

A few minutes later, gunshots were fired from the street.

           Several witnesses reported the gunshots were fired by the front-seat passenger in a white

Hummer. A few witnesses identified Tamez as the shooter. Other witnesses reported seeing a

dark-colored SUV and the white Hummer, and one witness testified that the shooter was a man

who exited the dark-colored SUV. It is undisputed that Tamez owned a white Hummer.

           Tamez and Azuara were each indicted for aggravated assault with a deadly weapon as both

a principal and as a party. 1 The indictment contained seven counts with a separate count for each

of the seven victims who was shot. The jury found both men guilty.

                                                    SUFFICIENCY

           In his first issue, Azuara contends the evidence is insufficient to support his conviction as

either a principal or a party.

A.         Standard of Review

           In reviewing the sufficiency of the evidence, “we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011). “This standard recognizes the trier of fact’s role as the sole judge of

the weight and credibility of the evidence . . . .” Id. The reviewing court must also give deference



1
    Ortega also was indicted but was acquitted by the jury.

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to the jury’s ability “‘to draw reasonable inferences from basic facts to ultimate facts.’” Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “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.” Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1985)).

       We measure evidentiary sufficiency with reference to the elements of the offense as defined

by the hypothetically correct jury charge for the case. Adames, 353 S.W.3d at 860–61. “[A]

hypothetically correct jury 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.’” Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) (quoting

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The law “‘as authorized by the

indictment’” consists of “‘the statutory elements of the offense . . . as modified by the charging

instrument.’” Id. (alteration in original) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.

App. 2000)).

B.     Elements of the Offense

       The offense of aggravated assault with a deadly weapon causing bodily injury is committed

if a person (1) “intentionally, knowingly, or recklessly causes bodily injury to another” and (2)

“uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN. §§ 22.01(a) (West 2011), 22.02(a)(2)

(West Supp. 2014); accord Ex Parte Denton, 399 S.W.3d 540, 546–47 (Tex. Crim. App. 2013);

see also Graves v. State, 452 S.W.3d 907, 916 (Tex. App.—Texarkana 2014, pet. ref’d); Zapata

v. State, 449 S.W.3d 220, 224–25 (Tex. App.—San Antonio 2014, no pet.). The indictment

authorized Azuara’s conviction if he acted alone or as a party. Generally, a person is criminally

responsible as a party if the person, acting with intent to promote or assist the commission of the
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offense, solicits, 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 abstract portion of the charge

in the instant case incorporated this definition of a party. The application paragraphs of the jury

charge, however, narrowed the specific mode of party liability to “aiding.” See Vasquez v. State,

389 S.W.3d 361, 368 (Tex. Crim. App. 2012) (holding, upon request, defendant is entitled to

narrowing of specific modes of conduct that constitute party liability to those supported by the

evidence). Because the jury charge narrowed the specific mode of conduct to aiding, Azuara could

be convicted as a party only if the evidence supported a finding that he aided another in committing

the offense.

C.     Analysis

       As previously noted, the evidence is undisputed that Tamez owned a white Hummer. In

addition, in Azuara’s own statement to the investigating officers, he admitted he arrived at the

nightclub in a white Hummer with Tamez and Ortega. In addition to Azuara’s admission, the

surveillance recording shows the three entering and exiting the nightclub together. Furthermore,

in their statements to the investigating officers, both Tamez and Azuara stated Azuara drove the

Hummer to the nightclub, and both initially testified that Azuara was driving when they left the

nightclub. Although Azuara subsequently stated Tamez was driving, the jury was the sole judge

of the weight to be given this change in Azuara’s statement. See Adames, 353 S.W.3d at 860.

Finally, Tamez, Azuara, and Ortega later returned to the nightclub in the white Hummer after

receiving a phone call from the wife of one of the victims accusing Tamez of being involved in

the shooting. When they returned to speak with the detectives, Azuara was again driving.

       Alejandro Carreon testified the shots were fired from the street. Officer Aldo Alaniz

testified Maria Santos told him an individual who had been involved in the fight inside the



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nightclub fired the shots from a white SUV. 2 Both Carreon and Leonel Perez testified Tamez was

involved in the fight inside the nightclub. Perez heard the gunshots fired from the street and saw

a hand wrapped in a white shirt shooting from the front passenger window of a white Hummer. 3

Jose Arturo Garcia also testified he saw a white Hummer drive away after the shooting. Finally,

Jonathan Santos, one of the victims, gave a statement in which he stated Tamez shot him and then

left in a white Hummer. At trial, Jonathan Santos only testified that the “girl at the door,” who

was Maria Santos, told him Tamez was the one shooting, not that he saw Tamez shooting. The

jury, however, is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Adames, 353 S.W.3d at 860. Jonathan Santos also testified he received threats from

Tamez’s girlfriend.

         Although there was conflicting evidence about the involvement of a dark-colored SUV and

the passenger of that vehicle exiting and shooting, the jury could have chosen to disbelieve this

testimony. Moreover, although the test results for gunshot residue on Tamez, Azuara, and the

white Hummer were negative, the jury was required to weigh the time that elapsed between the

shooting and their return to the scene of the crime. The jury also was required to weigh the

evidence that the shooter’s hand was wrapped in a white shirt, the evidence that Tamez is shown

in the surveillance video as removing his white shirt while exiting the nightclub, and the evidence

that Tamez and Azuara showered and changed clothes before returning to the scene.

         Based on the foregoing, we conclude the evidence—and the reasonable inferences the jury

could draw from the evidence—is legally sufficient to support a finding that Tamez was the




2
  During her testimony, Maria Santos denied making these statements to the officer, but the jury is the sole judge of
the credibility of the witnesses. Adames, 353 S.W.3d at 860.
3
  Although defense counsel attempted to impeach Perez based on details omitted from his initial statement, the jury is
the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.

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shooter, and Azuara aided Tamez in his commission of the offense. Accordingly, the evidence is

sufficient to support Azuara’s conviction.

                                          JURY CHARGE

       In his second issue, Azuara contends the trial court erred in submitting a jury charge that

failed to (1) name the principal he aided as a party and (2) identify the conduct by which he aided

the principal. The State responds the application paragraph is not required to identify the principal

actor, and it would be improper for the trial court to identify the facts establishing aiding in the

jury charge.

A.     Standard of Review

       We apply a two-step analysis to an issue asserting jury charge error. Kirsch v. State, 357

S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether error existed in the jury

charge. Id.; Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Second, we determine

whether sufficient harm was caused by the error to require reversal. Kirsch, 357 S.W.3d at 649;

Ngo, 175 S.W.3d at 744.

B.     Naming of Principal

       Azuara first asserts the trial court erred in failing to name the principal in the application

paragraph of the jury charge. The trial court is not, however, required to identify the parties to a

crime by name in a law of parties charge. See Moore v. State, 983 S.W.2d 15, 21 (Tex. App.—

Houston [14th Dist.] 1998, no pet.); Green v. State, 930 S.W.2d 655, 659 (Tex. App.—Fort Worth

1996, pet. ref’d); Gordon v. State, 714 S.W.2d 76, 77 (Tex. App.—San Antonio 1986, no pet.).

Accordingly, this contention is overruled.

C.     Identifying Conduct by which Principal was Aided

       Azuara next asserts the jury charge failed to identify the conduct by which the principal

was aided. In support of this assertion, Azuara primarily relies on Vasquez v. State, 389 S.W.3d
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361 (Tex. Crim. App. 2012). In Vasquez, however, the Texas Court of Criminal Appeals held, on

a defendant’s request, the trial court must narrow the statutory modes of conduct that constitute

party liability to those supported by the evidence. Id. at 368. The statutory modes referred to by

the court are the bases upon which a defendant may become a party, i.e., by soliciting, encouraging,

directing, aiding, or attempting to aid the other person. Id.; see also TEX. PENAL CODE ANN.

§ 7.02(a)(2). In this case, the trial court complied with Vasquez because the jury charge narrowed

the statutory mode of conduct in the application paragraph of the charge to aiding.

       Azuara appears to be arguing that the trial court was required to identify the specific facts

in the case that would support a finding of aiding and incorporate those facts into the jury charge.

A jury charge is not permitted to comment on the weight of the evidence, sum up the testimony,

or discuss the facts. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Kirsch, 357 S.W.3d at

651. A jury charge identifying the evidence by which a party aided a principal violates each of

these prohibitions because the trial court would be commenting on the weight of the evidence in

support of a finding of aiding, summarizing the testimony, and discussing the facts. See Walters

v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007) (noting a trial court comments on the weight

of the evidence where the charge focuses the jury’s attention on the specific type of evidence that

may support a required finding); Lacaze v. State, 346 S.W.3d 113, 118 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d) (noting a trial court comments on the weight of the evidence if the jury

charge “directs undue attention to particular evidence” (internal quotation marks omitted)).

Accordingly, Azuara’s assertion that the jury charge should have identified the conduct by which

he aided the principal is incorrect. See Kirsch, 357 S.W.3d at 651.

       Azuara’s second issue is overruled.




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                                             HEARSAY

       In his final issue, Azuara contends the trial court abused its discretion in admitting hearsay

testimony. The State responds the testimony was properly admitted under the excited utterance

exception to the hearsay rule.

A.     Standard of Review

       We review a trial court’s ruling regarding the admissibility of evidence under an abuse of

discretion standard. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim. App. 2012). Under this

standard, a reviewing court may not reverse the trial court’s ruling unless it falls outside the zone

of reasonable disagreement. Id. We will uphold the trial court’s decision if it is supported by the

record and is correct under any theory of applicable law. Martin v. State, 173 S.W.3d 463, 467

(Tex. Crim. App. 2005).

B.     General Hearsay Rule and Excited Utterance Exception

       A statement that a declarant does not make while testifying in court which is offered to

prove the truth of the matter asserted in the statement is hearsay and is generally inadmissible. See

TEX. R. EVID. 801(d), 802; Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). An

exception to this general rule exists, however, for excited utterances. See TEX. R. EVID. 803(2);

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Gonzalez v. State, 155 S.W.3d 603,

606 (Tex. App.—San Antonio 2004), aff’d, 195 S.W.3d 114 (Tex. Crim. App. 2006). An excited

utterance is “[a] statement relating to a startling event or condition, made while the declarant was

under the stress of excitement that [the event or condition] caused.” TEX. R. EVID. 803(2); see also

Coble v. State, 330 S.W.3d 253, 294 (Tex. Crim. App. 2010). The critical question in applying

the excited utterance exception is “whether the declarant was still dominated by the emotion caused

by the startling event when she spoke.” Coble, 330 S.W.3d at 294.



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C.     Hearsay Testimony

       During trial, one of the investigating officers listed the individuals at the scene who

provided information to him. The officer stated the individuals were all employees of the club and

were all frightened or shaken up by the event. The officer then testified as follows:

       Q. Now, what about Maria Santos — how did she appear to you at the time?
       A. Pretty frightened, shaking, everybody was like scared.
       Q. Now, from the time that you arrived and you were able to make contact with
          Maria Santos, approximately how much time had elapsed from the time that
          you arrived to the time that you spoke to her?
       A. Maybe 10 or 15 minutes.
       Q. You say it was fairly close to the time of the shooting?
       A. Yes.
       Q. Now, Officer Alaniz, did she, in her frightened state, did she say anything to
          you as to what she might have heard or what she saw?
            [Defense counsel]: Objection, hearsay, Your Honor.
            THE COURT: Overruled. You can answer.
       A. She stated to me that she had seen a white SUV that committed—that fired the
          shots.
       Q. And did she say anything else to you?
       A. (Reviewing report) That the individuals that had shot at the civilians were
          involved in a fight inside the bar.

D.     Analysis

       In this case, Maria Santos watched as multiple victims—many of whom were her fellow

employees—were shot and then collapsed in the parking lot. The officer testifying was the first

officer on the scene and arrived only minutes after the shooting. The officer stated he spoke with

Maria Santos ten or fifteen minutes after his arrival while she was still frightened, shaking, and

scared. Based on this testimony, we conclude the trial court could have found that Maria Santos

“was still dominated by the emotion caused by the [shooting] when she spoke.” Coble, 330 S.W.3d




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at 294. Accordingly, the trial court did not abuse its discretion in admitting the officer’s testimony

under the excited utterance exception to the general hearsay rule.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                    Patricia O. Alvarez, Justice

DO NOT PUBLISH




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