Lopez v. State
| Decision Date | 17 November 2020 |
| Docket Number | No. 08-17-00240-CR,08-17-00240-CR |
| Citation | 615 S.W.3d 238 |
| Parties | Raul LOPEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
ATTORNEY FOR APPELLANT: Alexandria Serra, 718 Myrtle Ave., El Paso, TX 79901.
ATTORNEY FOR STATE: Jaime E. Esparza, District Attorney, El Paso County Courthouse, 500 E. San Antonio, Suite 201, El Paso, TX 79901.
Before Alley, C.J., Rodriguez, and Palafox, JJ.
GINA M. PALAFOX, Justice As a member of a street gang, Raul Lopez was indicted for three counts of engaging in organized criminal activity (EOCA), alleging underlying charges of assault and aggravated assault, against two victims, enhanced by two previous convictions. The charges also alleged that Lopez used or exhibited a deadly weapon, a firearm, during the commission of or during immediate flight from the offenses. The charges arose out of a beating and subsequent shooting that took place outside a bar where people had gathered to listen to music and raise funds for a charitable cause. The first EOCA-count alleged that Lopez, as a member of the Barrio Azteca street gang, committed aggravated assault against complainant Raul Morales. The second and third EOCA-counts alleged that Lopez, as a Barrio Azteca, committed aggravated assault and assault, respectively, against complainant Carlos Bustillos.
The record established that both complainants were ex-members of the Barrio Azteca gang. Complainant Bustillos testified at trial, but Morales failed to appear. Lopez thus moved for a directed verdict on count one of the charges pertaining to Morales, which was not opposed by the State. The trial court entered a directed verdict on that count. Thereafter, the jury found Lopez guilty of the remaining two counts pertaining to charges committed against Bustillos. During the punishment phase, the jury found both enhancement paragraphs alleged on counts two and three to be true, and the jury assessed Lopez's punishment at 50-years' confinement and a $10,000 fine on count two, and 20-years' confinement and a $10,000 fine on count three. The trial court sentenced Lopez accordingly and ordered the sentences to run concurrently.
In multiple issues raised in this appeal, Lopez challenges pretrial rulings, evidentiary rulings, jury charge issues, as well as the legal sufficiency of the evidence to support the convictions. Mindful that we must first address those issues that could afford the greatest relief, we address Lopez's issues out of order from how they are listed by his briefing. Finding no error, we affirm the trial court's judgment.
About 50 people were gathered at the Adventureros bar for a nighttime fundraising event to assist in paying the funeral costs of a young woman who had passed away from cancer. A longtime on-air radio broadcaster for radio station 92.3 KOFX and disc jockey, Mike Guerrero, played oldies for the attendees. Carlos Bustillos and Raul Morales were at the bar that evening with friends to include Lorenzo Palacios and others. All were ex-members of the Barrio Azteca street gang. The Barrio Azteca gang is one of the major gangs in the El Paso area with an estimated 3,000 members. Ordinarily, joining the gang entails a lifetime commitment. As punishment for leaving the group, gang leaders are known to have demanded that current members assault or even kill ex-members on sight.
Raul Lopez, who was known by his moniker, "Garfield," was also at the bar that evening along with his wife, Maria Hernandez, and other members of the Barrio Azteca, including one member who went by the moniker of "Shy Boy." The event at Adventureros was going well until about 11 p.m. that evening. At that point, the evidence at trial produced two different accounts of the incident: one portraying Lopez as having no involvement in the assault on Bustillos or in a subsequent shooting; and another portraying Lopez as an aggressor who proceeded to viciously assault Bustillos before pulling out a gun then shooting while fleeing the scene. The State's presentation of evidence at trial in support of the charged offenses was complicated by a few factors: (1) Morales did not appear at trial; (2) Bustillos' trial testimony included responses that provided exculpatory information about Lopez; and, (3) a 911 caller, who had been at the bar that evening, testified at trial, but her trial testimony contradicted statements she had made in her call, as well as others she gave to police during their later investigation. Trial witnesses also included a detective familiar with the Barrio Azteca street gang who testified that witnesses are reluctant to testify in court against gang members due to the likelihood of being threatened or retaliated against.
Bustillos testified that, at some point during the evening, he noticed one of his friends arguing with Lopez inside the bar. As Bustillos approached, Lopez asked him, "What the f*** are you doing here?" As a current member of Barrio Azteca, Lopez argued with Bustillos based on Bustillos' status as an ex-member. Bustillos testified that he told Lopez, "Let's go throw down one-on-one," that Lopez agreed, and that the ensuing physical confrontation amounted to mutual combat. But once the two headed outside and Bustillos reached the doorway, he got knocked out without seeing who hit him. Bustillos also testified at trial that, alternatively, he remembered Shy Boy running towards him, hitting him, and then everything going black. He testified he did not see Lopez join in the assault. The next thing that Bustillos remembered was waking up on the ground, getting up, and running away from the bar towards the street. Bustillos was able to flee with his life but had injuries "[e]verywhere" on his face, eyes, mouth, neck, back, arms, and hand. Photos of his injuries were admitted into evidence.
Witnesses testified about an argument breaking out amongst multiple men with one of those men attempting to provoke a fight. Bar employees forced at least one patron to leave, and shortly thereafter, a fight began outside the front door. About 10 feet away from the door, two men were hitting and kicking a third man who was on the ground covering himself. One witness testified that the assault continued for a minute, at most, and, at the same time, someone called 911. As people were saying that police were coming, the two men who were hitting and kicking suddenly ran towards some cars at the park across the street from the bar and separated from each other. This witness also saw three or four people run over to a car at the park, saw someone open the car door, saw someone fire some shots, and saw the group drive away quickly. This witness recalled about 10 or more people being in the vicinity when the shots were fired but did not see where the person who had been assaulted on the ground had gone.
In his defense, Lopez also brought multiple witnesses to testify that he had been inside the bar when the shooting occurred and had not been involved in the fight outside the bar. Lopez's wife, Maria, also testified that she saw a man across the street from the bar pull out a gun, but as the man pointed it at her, the gun appeared to have "got stuck." She was then able to flee to her car where, as she got inside, she heard about nine shots fired. From there, she called 911. While she was on the phone, Lopez and two of his friends, Eddie Mendoza and Robert Mercado, got into the car with her. Maria then drove off before officers stopped her car shortly afterwards.
Three 911 calls were placed within about a minute of each other and were admitted into evidence. Although one caller was unidentified, the other two calls were made by witness Corina Holguin and Lopez's wife, Maria Hernandez. In the anonymous call, the caller stated that he heard five or six gunshots, that he did not see who shot or if anyone got shot, and that everyone at the scene was running. In Holguin's call, she stated that there was a "gang-related" fight, that "everyone just started pulling guns out and shooting," and that "one of the guys who started it," although she did not know his name, "he was one of them that started shooting" and "he is called Garfield." In Maria's call, she stated that two men were shooting at the bar. At the end of Maria's 911 call, Lopez can be heard saying,
Shortly after Maria drove away from Adventureros, El Paso Police Department Officers Maldonado and Gomez conducted a felony traffic stop on her vehicle because it matched a description broadcast over the police radio. After the four occupants exited the vehicle, they all gave the officers consent to search their persons and their vehicle, and the officers did not find any weapons, blood, or other evidence of a crime. None were arrested at that time for the fight or shooting at Adventureros. An inventory search was later performed on the vehicle, but no weapons were found.
Meanwhile, more than a dozen El Paso Police Department officers were dispatched to Adventureros. Multiple cars had been damaged and had bullet holes in them, and the bar itself had a bullet hole through its wall. Upon the officers' arrival, Bustillos' friend, Palacios, hesitantly waved over Officer Barajas and told him that an Azteca named Garfield "shot the place up" and left in a car, but once the officers contained the scene, other witnesses were evasive and said they did not know anything about what happened. In addition, the security cameras at Adventureros were not working that night. And, although the officers found two bullets and eight spent cartridges at the scene, as well as a gun at the foot of a tree across the street from Adventureros, the Texas Department of Public Safety Crime Laboratory in El Paso determined, based on caliber...
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