Samaripas v. State

• Citation: 446 S.W.3d 1
• Decision Date: 17 January 2013
• Docket Number: No. 13–11–00442–CR.,13–11–00442–CR.
• Parties: David SAMARIPAS Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

446 S.W.3d 1

David SAMARIPAS Jr., Appellant

v.The STATE of Texas, Appellee.

No. 13–11–00442–CR.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Jan. 17, 2013.

Discretionary Review Granted May 8, 2013.

Richard E. Wetzel, Austin, for Appellant.

Bill R. Turner, Dist. Atty., Jeffrey Garon, Asst. Dist. Atty., Bryan, for Appellee.

Before Justices RODRIGUEZ, BENAVIDES, and PERKES.

OPINION¹

Opinion by Justice PERKES.

Appellant, David Samaripas Jr., appeals his conviction for the offense of engaging in organized criminal activity, habitual offender. See Tex. Penal Code Ann. § 71.02(a) (West 2011).² The jury found appellant guilty of the offense and that he used or exhibited a deadly weapon, namely a firearm, during its commission. Enhanced by two prior offenses,³ the jury assessed punishment at fifty-three years confinement in the Texas Department of Criminal Justice, Institutional Division. By four issues, appellant contends that: (1) the evidence is insufficient to prove that the offense was committed with the intent to establish, maintain, or participate as a member of a criminal street gang; (2) the trial court abused its discretion in limiting appellant's voir dire examination of a veniremember; (3) the trial court erred by instructing the jury on the law of parties; and (4) appellant's sentence was improperly enhanced with a state jail felony conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:30 a.m. on October 7, 2007, Onelia Lara exited the house located at 1605 South College in Bryan, Texas. Immediately after closing the door, Lara felt uneasy because she saw a Chevrolet Suburban on the street and “a little black car” with its headlights turned off directly behind the Suburban. Lara walked toward her green Toyota Avalon. Suddenly, gunshots were fired in rapid succession from the front passenger side of the Suburban. Lara ducked behind her car as several shots were fired in her direction, hitting the house and a car parked in front of the house.

Inside the house, Joe Luis Lopez heard the gunshots and the bullets “going through the house.” Lopez looked out the window and observed a “light-color SUV” driving away with its passenger side facing the house. Lopez ran outside. A police car arrived within seconds, and Lopez told the officers in which direction the Suburban had driven. The officers drove away in that direction.

Officers Steve Spillars and Mahoney⁴ were the officers in the police car. They were patrolling in that part of town because of recent gang violence in the area. The two most prominent street gangs in Bryan, Texas at that time were the “Surenos” and the “Latin Kings.” The two gangs were rivals. The residence at 1605 South College was considered “a known gang member house.” Andrew Lopez–Lucio, a Surenos member, lived at 1605 South College. Lara, who was “associated” with the Surenos, was his girlfriend, and Lopez, also a Surenos member, was his brother.

Just hours before this shooting, a Latin Kings member shot four Surenos members or affiliates, who were taken to the emergency room at Bryan's Saint Joseph's Hospital. An injured member of the Latin Kings was also at the hospital. Lucio had shot him a few days earlier. At approximately 11:00–11:30 p.m. that night, a different Surenos member was shot while leaving the hospital. The police were notified that a black car was connected to that shooting.

Officer Spillars is a member of Bryan's Police Department's “Directed Deployment Team” (DDT), a vice unit that investigates street gangs and keeps databases of known gang members. On the night of October 6, Officers Spillars and Mahoney were assigned to patrol certain areas of town, including the 1600 block of South College in Bryan. At approximately 1:30 a.m. on October 7, the officers were about three blocks away from 1605 South College. Upon hearing the gunshots, they rushed toward the 1600 block of South College.

Lopez described the Suburban to Officer Spillars and told him the direction in which it drove away. Driving in that direction, the officers saw a Suburban matching Lopez's description about a half mile away. The officers, now joined by another police unit, “initiated a traffic stop by turning on our overhead lights.” The Suburban did not stop.

Officers Spillars and Mahoney pursued the Suburban as it made frequent turns, ran a red light, drove through residential areas of town, and then drove on a highway heading toward Burleson County at speeds “[r]ang[ing] from 60 miles an hour to 90 miles an hour.” As the Suburban crossed the bridge over the Brazos River, Officer Spillars saw “something” get thrown out the front passenger window, over the rail, and toward the Brazos River. The chase continued into Burleson County, but dispatch had already informed deputies in that county that the chase was “fast approaching their location.” The deputies placed “stop sticks”⁵ on the highway. The Suburban ran over the stop sticks and eventually came to a stop. Jeronimo Guedea Jr. (a/k/a Gudea)⁶ was the driver, and appellant was the front seat passenger.

On the following day, Officer William Joseph Cross of the Bryan Police Department was dispatched to the Brazos River near the bridge to recover the item that had been thrown from the Suburban during the chase. Officer Cross found a black zipper bag with the words “ConvaTec Ostomy

Care” on it on a bank of the river. Officer Cross opened the colostomy bag and found a black nine-millimeter Beretta handgun, three firearm magazines, a cell phone, and two quarters.

The colostomy bag

belonged to appellant. He had been shot about one month before this event during an altercation between Surenos and Latin Kings members. As a result of his injury, appellant began using a colostomy bag. A police investigation into appellant's injury resulted in Lucio's arrest and subsequent indictment for engaging in organized criminal activity. The underlying offense for that charge was Lucio's assault on appellant. Appellant informed the investigating officer that Lara had also been present at that altercation. Detective Lance Matthews, a detective with the Criminal Investigations Division at the Bryan Police Department, was the investigating officer in that shooting, and he provided testimony at appellant's trial regarding the details of that investigation.

Officer Mike Kneese works in the Criminal Intelligence Unit at the Bryan Police Department. He testified as an expert on criminal street gangs and told the jury that appellant was a member of the Latin Kings. Emil Carlos Garza Sr., a “Program Supervisor One with the Security Threat Management Office” at the TDCJ, also testified that appellant was a member of the Latin Kings. Detective Stephen Fry, who works in the Major Crimes Unit in the Criminal Investigations Division of the Bryan Police Department, testified to what appellant told him during appellant's post-arrest interview.⁷ Among other things, appellant told Detective Fry that Guedea was not involved in the offense.

Officer Jean Guzman works in the Patrol Division of the Bryan Police Department. She testified that she found eleven cartridge cases on the side of the street where 1605 South College was located—the side of the street that the passenger side of the Suburban had faced. Jamie Becker, a firearm and tool mark examiner working as a senior criminalist at the Tarrant County Medical Examiner's Office, testified that the Beretta handgun shot the bullets and ejected the cartridge cases recovered from the crime scene. A DVD recording, which was recorded by a camera in Officer Spillars's patrol unit, was played for the jury. Guedea testified, claiming all responsibility for the shooting and flight from the police.

The jury found appellant guilty of engaging in organized criminal activity. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his second issue,⁸ appellant argues that the evidence was insufficient to prove that the offense was committed with the intent to establish, maintain, or participate as a member of a criminal street gang. We disagree.

A. Standard of Review

“The standard for determining whether the evidence is legally sufficient to support a conviction 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.’ ” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex.Crim.App.2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (emphasis in original); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex.Crim.App.2010) (plurality op.). 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 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) ).

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.2009) (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. Id.

A person commits the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he...