Rodriguez v. State
| Decision Date | 11 July 2018 |
| Docket Number | No. 08-16-00118-CR,08-16-00118-CR |
| Parties | LUIS ENRIQUE RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Court of Appeals of Texas |
Appeal from the 34th District Court of El Paso County, Texas
(TC#20120D05089)
By indictment, Appellant Luis Enrique Rodriguez1 was charged with capital murder and two counts of engaging in organized criminal activity with regard to the death of Luis Fierro and Roberto Renteria. Following a trial, a jury acquitted Appellant of the murder of Fierro and one count of engaging in organized criminal activity, but found him guilty of engaging in organized criminal activity with regard to the murder of Renteria. As punishment, the jury assessed, and the court imposed, a sentence of confinement for a period of 99 years and a maximum fine of $10,000.
On appeal, Appellant argues he was prosecuted under a fatally flawed indictment that carried forward its defect to the court's charge to the jury. Both instruments, he claims, were flawed in their omission of an intent element required by the charge of organized criminal activity.2In addition, Appellant argues that his constitutional rights were violated in that his conviction resulted from his mere membership in a criminal street gang; that the evidence was legally insufficient to support his conviction; that the trial court failed to properly respond to questions submitted by the jury; and that the trial court erred by ruling against his claim of spousal privilege. We affirm.
At trial, Appellant and others testified he was a member of the Barrio Azteca street gang that operates widely in the El Paso area. Similarly, evidence showed that victim Luis Fierro3 was also a Barrio Azteca member. Victim Roberto Renteria,4 however, who was Fierro's son-in-law, was not a member, but instead, appeared to be an unfortunate individual who found himself at the wrong place at the wrong time.
During the trial, Detective Andres Sanchez of the El Paso Police Department, who had specialized training and experience with investigations of gang activity, testified about the Barrio Azteca gang, its organizational structure, and its operations. Originally, the Barrio Azteca formed to protect Hispanic inmates of El Paso who were in need of protection from gangs operating in Texas prisons. Eventually, it expanded outside of prisons and began operating in the streets of El Paso. Sanchez described the gang as a highly-structured organization, formed with a constitution, that followed rules and a para-military structure; "captains" or "capos" are at the highest level ofits leadership, followed by "lieutenants," "sergeants," and lastly, "soldiers." The captains are responsible for assigning a "rank" for each member. At the time of Appellant's trial, four of the five captains of the gang were serving time in various prisons throughout the country. Despite being imprisoned, captains coordinated operations by using cell phones smuggled into prisons and by sending coded messages through calls and letters to outsiders.
Detective Sanchez and others testified that the gang sustained itself, in part, by a form of extortion, in which they imposed a "tax," or "cuota," on others who sold drugs in the area. The Barrio Azteca divided the city into "sections," then required members to collect taxes from dealers operating in respective sections. Tax money collected was routinely placed in a "box," which was kept by a person of "trust," who would then make distributions to other members and include those who were incarcerated. In essence, the holder of the box acted as a banker, or "treasurer," of gang operations. Occasionally, the box included information about individuals who were believed to be "snitches," or who had otherwise made incriminating statements against members facing legal proceedings. By use of the box, information was routinely passed from lower to higher-ranking members.
At trial, Veronica Cera testified as a witness who had knowledge of gang activities from her personal history of helping gang members sell drugs and collect taxes.5 Cera was considered a "trusted courier," or an "esquina," which is someone, such as a girlfriend, who helped the gang but was not a member. In 1998, at twenty-one or twenty-two years of age, Cera began dating a Barrio Azteca member and often went with him as he collected tax money from dealers in the area.Over time, she too started selling cocaine for gang operations. When her boyfriend was arrested, Cera dated another member and helped him distribute heroin for a period of a year and a half. After her new boyfriend was arrested, she continued selling without him to keep his business going. Other gang members objected because she was not a member. By its rules, Barrio Azteca did not allow women to be members, Cera explained. For a year and a half, she then worked at a restaturant. Once again, however, she started dating another member who was nicknamed "Filo." He too was arrested after being charged with capital murder. Cera then started dating Luis Fierro and eventually became his wife.
As for Fierro, Cera testified he worked his way up from being a soldier to being, at one point, one of the gang's higher-ranking lieutenants in charge of an area. As a soldier, Fierro's lieutenant was Ricardo Zuniga,6 who was also known as "Nano." After a warrant was issued for his arrest, Zuniga moved from El Paso to Juarez. Often taking her children with her, Cera would cross to Juarez to pick up drugs and deliver the Barrio Azteca box to Zuniga. Eventually, Zuniga called Fierro and Juan Espino,7 another member, and asked them to go to Juarez to speak with him. Because he needed help collecting taxes, Zuniga elevated each of their rank to sergeant.
Cera testified she would help Fierro with his new responsibilities which included collecting taxes from dealers, writing checks for gang members in the prison system, delivery of money to Zuniga in Juarez, and payment of lawyer fees for members that were incarcerated. On a daily basis, Cera had contact with other members, who came and went picking up drugs or bringingmoney to Fierro. Of these members, she described Appellant as being calm and quiet, but others, she said, were "bossy, obnoxious, [and] real mean," referring to members Juan Cornejo8 and Eddie Noriega.9
While Zuniga operated from Juarez, Cera kept going across the border to take him money and information Fierro received from other members including those who were incarcerated. Occasionally, information she took included copies of criminal cases which revealed witnesses who had "snitched" against gang members in legal proceedings. One day, she and Fierro received information at their home about the trial of her former boyfriend Filo.10 The information left on her doorstep included a statement she herself had given to authorities. Cera burned the information. Soon, however, she and Fierro received a sealed envelope, which they opened, that again included statements of the Filo trial and other items intended for Zuniga. They removed only her statement, resealed the envelope, then she delivered it in Juarez. When Zuniga read the information in the envelope references remained about her having accused Filo of a murder in El Paso. Cera testified that after Zuniga saw the information, he told her she needed to be "checked," meaning that Fierro needed to slap her around for having made such a mistake. Although Fierro never did hit her, she told other members that he actually had.
Sometime later, Fierro went to a party at Zuniga's house and called her to take them some beer and cocaine. While she was there, she saw Appellant, Cornejo, Noriega, Espino, Zuniga,and another member, all talking in a group. She overheard Cornejo say, "Somebody's going to die." She felt nervous and asked Fierro to leave with her, and he did. From that point forward, Fierro told Zuniga he had an outstanding warrant and could no longer meet him in Juarez, although he was not telling the truth. Cera continued to go for Fierro.
After Zuniga was arrested, he talked to Fierro about taking over his responsibilities, referred to as "passing on his muscle shirt," explaining he would be too restricted while he was incarcerated. Zuniga then elevated Fierro from sergeant to lieutenant. With new responsibilities, Fierro, in turn, elevated the rank of Appellant, Cornejo, and Noriega, all of whom were raised to sergeants. Due to his calm nature, Fierro gave Appellant responsibility for the box.
Cera testified that friction arose between Fierro, her husband, and other gang members. Fierro, she explained, was an addict, and he began taking heroin without paying for it, and was not performing his gang responsibilities effectively. Also, Fierro owed money to Zuniga and his father. To make matters worse, gang members continued to suspect Cera had snitched to authorities on Filo and later on Zuniga.
A few weeks before the murders occurred, various gang members, including Appellant and Espino, held a meeting at which Fierro's rank was "parked," meaning that Fierro no longer had the authority to participate in the gang's activities and no longer had control of the box. Detective Sanchez testified that local law enforcement working with an FBI task force had many members of the gang under surveillance at the time. Through their surveillance, authorities learned thatboth Fierro and Cera had been "green lighted," which meant that a high-ranking member of the gang had given orders to execute them.11
Cera testified that Fierro had previously written a letter to a prison capo named Manuel Tolon Cardoza ("Tolon"), complaining about his situation after the other gang members had parked his rank and had taken the box away from him. She recalled that on August 22, 2012, the day of his murder, Fierro received a letter in the mail from Cardoza informing him that he had his "blessing," and that he was...
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