Zuniga v. State
| Decision Date | 21 September 2016 |
| Docket Number | No. 08-14-00153-CR,08-14-00153-CR |
| Parties | RICARDO ZUNIGA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from 205th District Court of El Paso County, Texas
(TC # 20130D04852)
In 2009, brothers Jesus and Jose Vargas died after they were beaten, stabbed, and shot at the A&M Bar in Socorro, Texas. Members of the Barrio Aztecas gang were present, including Appellant, Ricardo Zuniga. Immediately after the killings, Appellant fled to Mexico and was not arrested until 2012, three years after the murders. In a three-count indictment, Appellant was charged with capital murder (Count I), and two counts of engaging in organized criminal activity (Counts II and III). Appellant was tried before a jury, which returned a verdict of guilty on all three counts. Because the State did not seek the death penalty, Appellant's punishment for the capital murder charge (Count I) was set by law at confinement for life without parole. See TEX.PEN.CODE ANN. § 12.31(a)(West 2015). For Counts II and III, the jury returned punishment verdicts of sixty years' confinement. The trial court imposed the sentence in accordance with the jury's verdicts and Appellant filed this timely appeal.
FACTUAL SUMMARY
The primary focus of this appeal is the prosecution's efforts to tie Appellant to the Barrio Azteca gang. The Barrio Aztecas originated within the Texas prison systems around 1986. Several original founding members of the gang were born and raised in El Paso, Texas. They officially signed their "Constitution" in 1987, which contained written rules and regulations that all members must follow. The gang is involved in various forms of criminal activity including high-level narcotics, murder, assassinations for hire, and retaliation.
Gang Turf
The Barrio Aztecas claim the entire El Paso-Juarez region as their "turf," or exclusive territory. If another gang in the El Paso-Juarez region sells narcotics, it is required to pay a "cuota," or a percentage, to the Barrio Aztecas. Police officers assigned to gang cases in the area also refer to cuotas as extortion money. If a rival gang member fails to pay the cuota, the Barrio Aztecas implement several forms of discipline, which may include killing that member. To them, not receiving their cuota payment is a sign of weakness to other gangs in the area.
Extensive testimony was elicited to establish the process by which the El Paso Police Department classifies a person as a gang member. The police are required to follow Chapter 61 of the Texas Code of Criminal Procedure when classifying someone as a gang member. Several of the Code's criteria include self-admission, information obtained from a reliable informant, evidence of a known gang sign or symbol, and being arrested with other known gang members. In addition to the Code, the Texas Department of Criminal Justice (TDCJ) and its correctional facilities have also established their own gang confirmation process. The confirmation process incorporates a point-based approach to classifying gang members within its correctional facilities. TDCJ considers several of the same criteria as the police do under the Texas Code ofCriminal Procedure, but also conducts interviews and extensive research. The police department considers TDCJ's gang membership confirmation process to be a credible source of information because its classification system is more stringent than what the police are required to follow. TDCJ confirmed Appellant's membership in the Barrio Aztecas in September 2004. Several of the people arrested with Appellant at the A&M Bar, including Joe Alarcon, Jose Cordero and Victor "Nacho" Gomez, were also confirmed Barrio Aztecas members.
The Barrio Campestre Locos gang is a traditional regional street gang established in the Socorro area of El Paso, Texas. The gang considers Socorro their turf. They are similarly involved in several forms of criminal activity, including murder, aggravated assaults, robberies, narcotics trafficking, and retaliation. Both of the Vargas brothers were confirmed members of the Barrio Campestre Locos gang.
Events of the Confrontation
Aide Samaniego
On Sunday, June 21, 2009, Aide Samaniego arrived at the A&M Bar at approximately 10:00 or 10:30 p.m., after she left the horse races in Clint, Texas. Her childhood friend, Jose Cordero, arrived with Appellant shortly thereafter. Appellant and Cordero joined Samaniego at a table in the bar. Samaniego knew of Appellant but had never formally met him before. She knew him by the street name "Nano." At approximately 11:30 p.m., Appellant and Cordero briefly left the table and made their way toward the entrance of the bar where they appeared to engage in a confrontation with another group of individuals. They then returned to the table. Later that evening, Samaniego stepped outside to smoke a cigarette. She noticed three other men walk inside the bar to join Appellant and Cordero. These men, whom she described as "gangsters" and "cholos," exited the bar with Appellant and Cordero a few minutes later.Samaniego returned to the bar, but a fight outside had already begun. According to Samaniego, there were ten or fifteen people punching and kicking two individuals on the ground. She could not identify the victims. Someone yelled out, "cops," and everyone began to scatter. Appellant and another person got into Appellant's car, but before they could leave, someone threw a bottle at the back windshield, which shattered. Appellant then got out of his car, opened his trunk, and pulled out a gun. Samaniego ran away from the bar after she saw Appellant walking toward the fight scene with the gun. He held his gun sideways and was pointing it directly in front of him. Approximately forty-five seconds later, she heard two gunshots.
Several days later, the authorities contacted Samaniego and asked her to identify some individuals involved in the altercation. She identified Appellant, referring to him as "Nano," Jose Cordero, and Victor "Nacho" Gomez as persons in the group that assaulted and murdered the Vargas brothers.
Samaniego did not positively identify Appellant in court. The State attempted to introduce evidence to show that she was afraid to do so. Appellant objected and the trial court sustained his objection, limiting Samaniego's testimony to the fact that she was subpoenaed to appear in court and was not participating voluntarily. Subsequently, the trial court permitted Samaniego to testify that she feared for her safety as a result of testifying in court, however, the trial court still did not permit testimony concerning the reason for her fear.
Cecilia Estrada
Cecilia Estrada arrived at the A&M Bar with her two aunts at approximately 10:00 or 11:00 p.m. She saw Samaniego, Cordero (whom she previously dated for six months), and Appellant, all sitting together at a table. She had met Appellant a few months before the murders and knew him by the name "Nano." When the fight broke out, Estrada ran outside to see whatwas happening. She saw five to seven men kicking and beating two men lying face down on the ground. She identified Appellant and Cordero as two of the assailants. She remembered seeing someone throw a glass bottle. As she began to run away, she also heard two gunshots. When she looked back at the fight scene, she saw Appellant with a gun in his hand but she did not actually see the shooting. As she and her aunts drove away from the scene, she noticed two bodies on the ground in the parking lot. Two days later, Estrada positively identified Appellant and Cordero in photo line-ups. Like Samaniego, Estrada identified Appellant as "Nano." She specifically testified that the person she identified in the photo line-ups as "Nano," was the same person she saw holding a gun after she heard the two gunshots. Estrada did not identify Appellant in court, but like Samaniego, was subpoenaed to testify.
Flor Reyes
Flor Reyes was bartending the evening of June 21, 2009. Unlike Samaniego and Estrada, Reyes positively identified Appellant in court and testified that he was present at the bar the night the Vargas brothers were murdered. Earlier in the evening, before the fight broke out, Reyes heard Appellant tell "Sparky," that he (Sparky) had to do his job. Sparky told Appellant no.
When the fight broke out, several individuals came in and told her to call the police. She ran outside to the fight scene and found the Vargas brothers lying face down on the ground. There were several other bystanders attempting to help them, but Reyes saw Appellant along with three to four other men, whom she did not know, controlling the crowd and bystanders by waving and pointing their guns at them, and telling them "not to get close." She heard Cordero yell "[shoot] at him some more." Reyes approached one of the brothers but Appellant shoved her out of the way. He then pulled out his gun and shot one of the brothers in the head. Shecouldn't immediately tell which brother had been shot because they were both still face down. She later referred to the brother that Appellant shot as "Caveman." According to Reyes, after Appellant shot Caveman in the head, he then shot him two more times in the back, for a total of three shots. Appellant then walked away, got into his car, and drove off. Reyes did not witness anyone else fire a gun and she testified that the three gunshots were the only ones she heard. Reyes also identified Appellant, "Nacho" Gomez, and Cordero in photo-lineups.
Reyes testified through an interpreter. She identified Appellant in court as the same person whom she saw shoot one of the Vargas brothers. When the State asked Reyes if Appellant looked the same in court as he did at the time of the murders, she responded, "Well, if he's the one I'm talking about, he was a little bit more robust." She then went on to explain that Appellant appeared to have lost a significant amount of weight since the murders in 2009. During cross-examination, Appella...
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