Gonzalez v. State, 08-19-00062-CR

JAVIER GONZALEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-19-00062-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

December 22, 2020

Appeal from the 34th Judicial District Court of El Paso County, Texas

(TC# 20170D04716)

OPINION

A jury convicted Appellant Javier Gonzalez of one count of "Engaging in Organized Criminal Activity-Murder" and three counts of "Engaging in Organized Criminal Activity-Aggravated Assault," and sentenced him to 56 years' in prison. Appellant raises three issues on appeal, contending that there was insufficient evidence of his intent to commit murder, that the jury had no rational basis for rejecting his claims of self-defense or the defense of others, and that he was denied the effective assistance of counsel at trial. Finding no reversible error, we affirm the trial court's judgment.

I. BACKGROUND

On the evening of July 30, 2017, a deadly confrontation occurred at an El Paso nightclub between two rival motorcycle gangs in which Appellant, the El Paso chapter vice-president of the "Kinfolk" gang, admittedly shot and killed Juan Martinez, the chapter president of the "Bandidos" gang. Appellant also seriously wounded two other Bandidos members, Ballardo Salcido and David Villalobos, as well as Juan Vega-Rivera, a member of a Bandidos "support club." Appellant initially fled the scene, and he was subsequently apprehended. He admitted to the shooting in a recorded police interview, but he claimed both during the interview and through his testimony at trial that he lacked any intent to kill or cause serious bodily injury to any of his victims. Rather, he claimed that he acted in self-defense or in defense of others at the time of the shooting.

According to Appellant, he had been at another bar prior to the shooting with four other Kinfolk members, including Manny Gallegos and Derek Mercado. Appellant claimed that he had been unaware that Mercado and Gallegos had left the bar until he received a frantic phone call from Mercado saying that he and Gallegos needed help, as they were either being attacked or were about to be attacked at a nearby club known as "Mulligan's Chopped Hog." As Mulligan's was known to be frequented by Bandidos members, Appellant assumed that the Bandidos were responsible for the attack. Appellant recalled telling two other Kinfolk members who were at Jake's with him that he was leaving on an "emergency," and the two members followed him on their motorcycles to Mulligan's. According to Appellant, he went to Mulligan's with the intent to "defuse" the situation after receiving Mercado's phone call claiming to be under attack.

The jury had the benefit not only of Appellant's testimony, but also several video cameras that recorded what happened at Mulligan's. One camera captured the bar area, another the entryway from the inside, and a third the outer entrance. Based on those videos and on phone records, it was apparent that Mercado made the phone call to Appellant as Mercado and Gallegos were walking into Mulligan's, and well before any confrontation had taken place. The footage further demonstrated that after Gallegos and Mercado entered the club and ordered a drink, the Club's manager approached them and appeared to be asking them to leave, while several Bandidos members began forming a circle around the two men. Although it is unclear what, if anything,may have provoked him--none of the videos have audio--Gallegos punched Martinez and a fight immediately broke out, with as many as eight Bandidos members encircling Gallegos, punching him, and pushing him into a corner of the bar. The fight ended shortly thereafter, and the video footage shows Mercado attempting to help Gallegos off the ground, as the various Bandidos members involved in the fight began dispersing and walking away.

Just at that time, Appellant, along with two other Kinfolk, are seen on the video footage entering the club. Appellant is wearing a helmet with a plastic visor. As he is entering the building, and before he has a view of what is going on inside, he appears to be pulling a gun out and holding it with both hands in a ready position. Although Appellant admitted at trial that the video footage revealed that the fight was over when he entered the club, he testified that he nevertheless took his gun from his pocket when entering the club out of fear for his own safety and that of Gallegos and Mercado.¹ Appellant further claimed in both his interview and at trial that when he entered the club, he saw Gallegos and Mercado on the ground in a corner of the bar, pinned down and being beaten on by the Bandidos members, and believed they were already dead or in grave danger. But the video belies that he could have seen them in the corner given his vantage point at the entryway of the bar.

Appellant also testified that he believed the Bandidos members had knives and were about to stab Gallegos and Mercado. Appellant claimed that almost instantaneously, several of the Bandidos members approached him in a threatening manner, yelling that they were going to kill all of them. He further recalled that one of the approaching Bandidos members had a knife in his hand and another appeared to be reaching for a knife in his vest pocket. According to Appellant, he warned them to stop, but they lunged at him with their knives, screaming and making "deathsigns," and he claimed that he therefore fired his gun in order to protect himself and his fellow Kinfolk members. The video footage appears to show one bandito member throwing a punch and lunging toward a Kinfolk, but no knife is visible on the video.² At that time, Appellant began firing his handgun at the Bandidos.

Although Appellant could not recall how many times he fired his weapon, a subsequent autopsy revealed that Martinez, who died from his gunshot wounds, had been shot seven times. As well, the record revealed that Appellant also shot and seriously wounded three other victims.

Immediately after the shooting, Appellant ran from the club, but was tackled outside by two Bandidos members. Appellant was able to break free, and fled the scene, first going to Gallegos' house, and later driving his truck to Arizona. Upon his return, Appellant was arrested and later indicted on one count of "Engaging in Organized Criminal Activity-Murder," and three counts of "Engaging in Organized Criminal Activity-Aggravated Assault."

At trial, Appellant repeatedly stated that he had no intent to murder the victims when he walked into the club, and that he only fired his weapon in order to protect his own life and the lives of his fellow Kinfolk members. The State, however, posited a different theory of the case, arguing that the shooting was part of a calculated plan to kill Martinez, in which Gallegos and Mercado went to Mulligans to provoke a fight so that Appellant could then claim that he came to the club to defend them or to otherwise set up a claim of self-defense as a pretext for the shooting.

At the close of trial, the jury was instructed on the law of self-defense and the defense of others, but the jury apparently rejected those defensive theories and found Appellant guilty of all four counts in the indictment, sentencing him to 56 years' incarceration in prison, and a $10,000.00 fine.

II. ISSUES ON APPEAL

Appellant raises three issues on appeal. In his first two issues, which we address together, Appellant contends that the evidence was legally insufficient to support a finding that he acted with the intent to murder Martinez, and that no rational jury could have rejected his claim of self-defense or the defense of others. In his third issue, Appellant argues that he received ineffective assistance of counsel at trial, as his trial counsel did not request any instructions on the lesser included offenses of manslaughter and "deadly conduct," and further failed to request a "multiple assailants" instruction.

III. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

The constitutional guarantee of due process requires that every conviction must be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). In a legal sufficiency challenge, we focus solely on whether the evidence, when viewed in the light most favorable to the verdict, would permit any rational jury to find the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 912 (establishing legal insufficiency under Jackson v. Virginia as the only standard for review of the evidence).

Applying that standard, we recognize that our system designates the jury as the sole arbiter of the credibility and the weight attached to the testimony of each witness. Metcalf v. State, 597 S.W.3d 847, 855 (Tex.Crim.App. 2020); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Only the jury acts "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 319. In doing so, the jury may chooseto believe or disbelieve that testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008). The jury remains at liberty to believe "all, some, or none of a witness's testimony." Metcalf, 597 S.W.3d at 855. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443 U.S. at 319.

In conducting our review, we also keep in mind that circumstantial evidence is just as probative as direct evidence in establishing guilt, and that circumstantial evidence alone may be sufficient to sustain a conviction. Dobbs, 434 S.W.3d at 170. Each fact need not point directly and independently to the guilt of the defendant, so long as the cumulative force of all the incriminating circumstances...