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Court of Appeals of Texas,Austin.

John Michael REINA, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00514-CR.

Decided: February 27, 1997

Before CARROLL, C.J., and KIDD and B.A. SMITH, JJ. David H. Reynolds, Austin, for Appellant. Ronald Earle, District Attorney, Philip A. Nelson, Jr., Assistant District Attorney, Austin, for Appellee.

Appellant John Michael Reina, Jr., tried jointly with co-defendant Charles Carlson, was convicted of attempted murder and engaging in organized criminal activity.   See Carlson v. State, 940 S.W.2d 776 (Tex.App.-Austin 1997).   The jury found Reina used a deadly weapon during the commission of the offenses.   Because we conclude the evidence does not factually support the jury's verdicts against Reina on either offense, we will reverse the judgment of conviction and remand the cause for a new trial.   Because we remand the cause for a new trial, we will address Reina's double jeopardy challenge to being tried for both attempted murder and engaging in organized criminal activity.   We need not reach the other assignments of error.1


On the night of January 10, 1995, Ricardo Davila, a homeless person, was severely beaten and set afire.   The police arrested appellant, Charles Carlson, and Mike Brown in connection with the offense.   Reina and Carlson were indicted for engaging in organized criminal activity, attempted murder, and aggravated assault.   See Tex. Penal Code Ann. §§ 15.01, 19.02, 22.02, & 71.02 (West 1994 & Supp.1997).   The following facts were revealed at their joint trial.

Sometime during the evening of the offense, Reina, Carlson, and Brown went to a convenience store.   There Carlson and Brown encountered Davila and, for reasons not revealed in the record, got into an argument.   Davila, Carlson, and Brown ended up in an alley behind the store in a physical confrontation.   Carlson and Brown kicked and stomped on Davila.   They threw bottles and a bag of hardened cement at him.   Immediately after the beating, Brown went into the store and bought a bottle of lighter fluid.   Brown returned to the alley and doused Davila with the fluid.   Carlson then set Davila afire.

Scott Ferris, who was walking up the stairs at an apartment complex next to the convenience store, witnessed parts of the assault.   When he went to investigate, he saw two young men leaving the scene, whom he later identified as Carlson and Brown.   He watched them get into the passenger side of a car that was backed into an apartment parking lot space near the end of the fence.   Although the car left quickly, Ferris was able to write down the license plate number of the car.

Immediately afterward, Ferris walked down the alley and saw Davila engulfed in flames.   When neither Ferris nor Davila could extinguish the flames, Davila ran across the street to a gas station.   Customers at the gas station eventually extinguished the flames using blankets and a fire extinguisher.

Officer Robert Hester of the Austin Police Department was dispatched to investigate the incident.   Before emergency medical personnel arrived, Davila told Hester two males had assaulted him.

After Reina, Carlson, and Brown left the scene, they met a friend, Bradley Livingston, on Sixth Street.   Brown and Livingston walked to a store together while Reina and Carlson waited in the car.   The four eventually drove to Carlson's apartment where Livingston says the other three told him about the incident in the alley.

Carlson and Reina were indicted and tried jointly.2  The jury charge included an instruction on organized criminal activity, the underlying offense being either the commission of aggravated assault, conspiracy to commit aggravated assault, or conspiracy to commit murder.   See Tex.Penal Code Ann. §§ 15.02, 19.02, 22.02, & 71.02 (West 1994 & Supp.1997).   The charge also included instructions on attempted murder and the law of parties.   See Tex.Penal Code Ann. §§ 7.02, 15.01, 19.02 (West 1994).   The jury convicted both Reina and Carlson of attempted murder and engaging in organized criminal activity, but did not specify the theory of organized criminal activity upon which they relied.   They further found both Reina and Carlson had used deadly weapons during the commission of the crimes.   The jury assessed punishment for both Reina and Carlson at ninety-nine years' confinement for engaging in organized criminal activity and twenty years' confinement for attempted murder, the sentences to be served concurrently.


Legal Sufficiency of the Evidence

In his first two points of error, Reina argues the evidence is legally insufficient to support the convictions.   In deciding a legal sufficiency point, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979);  Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981).

 Reina first argues the evidence does not legally support his conviction for engaging in organized criminal activity.   A person engages 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 commits or conspires to commit one of several predicate offenses listed in section 71.02(a) of the Texas Penal Code. See Tex.Penal Code Ann. § 71.02(a) (West Supp.1997).   Among those offenses are murder and aggravated assault.   See id.   The indictment alleged that Reina engaged in organized criminal activity by intending to establish, maintain, or participate in a combination and either (1) conspiring to commit murder or (2) conspiring to commit or actually committing aggravated assault by (a) causing serious bodily injury or (b) using a deadly weapon.   The jury charge included almost identical instructions.

In order to prove Reina's guilt under any of the State's theories, the State was required to prove Reina committed an overt act in furtherance of the conspiracy or combination.   See Tex. Penal Code Ann. 71.01 (West 1994 & Supp.1997);  Shears v. State, 895 S.W.2d 456, 459 (Tex.App.-Tyler 1995, no pet.) (when conspiracy is underlying organized criminal activity charge, State must prove overt act).   Reina claims there was no evidence that he committed such an overt act.

The evidence suggests otherwise.   First, Bradley Livingston testified that the group told him in the hours after the offense that Reina began the assault by throwing a rock at Davila's head.   According to Livingston, Reina did not deny this accusation.   Second, Reina waited in his car, which was backed into a space not in the convenience store lot but in a neighboring parking lot at the end of the alley where the assault took place.   This act could be construed as Reina's attempt to aid the group in making a quick getaway.   This evidence, viewed in the light most favorable to the verdict, supports the inference that Reina committed an overt act in furtherance of a combination or conspiracy to kill or seriously injure Davila.   Consequently, we overrule Reina's first point of error.

 Next, Reina argues the evidence did not legally support his conviction for attempted murder.   The indictment alleged that Reina, “with the specific intent to commit the offense of murder,” tried to kill Davila.   The jury charge incorporated this allegation by instructing the jury that “a person commits the offense of murder if he intentionally or knowingly causes the death of an individual.”   See Tex.Penal Code Ann. § 19.02(b)(1) (West 1994).3  In order to prove Reina guilty of attempted murder, therefore, the State was required to produce evidence that Reina had the specific intent to kill Davila.   Because both the indictment and charge contained instructions on the law of parties, a conviction could be had upon either the theory that Reina himself intended to murder or that he intended to assist others in the commission of Davila's murder.   See Tex.Penal Code Ann. § 7.02(b) (West 1994).

Our review of the record evidence reveals there is some evidence to support Reina's conviction for attempted murder.   First, Livingston's testimony about Reina's rock throwing supports the conviction.   Furthermore, Livingston testified that the group told him Reina and Brown had encountered Davila earlier in the day and had argued with him.   This evidence could suggest that Reina had a motive to assist in the attack on Davila.   A rational trier of fact could have found, based on these pieces of evidence, that Reina intended to kill Davila or at least help his friends kill Davila and that Reina performed an act in furtherance of that intent.   Accordingly, we overrule Reina's second point of error.

Factual Sufficiency of the Evidence

 In points of error three and four, Reina argues the evidence is factually insufficient to support the convictions.   This Court has previously detailed the historical development of the Texas appellate courts and reached the conclusion that courts of appeals are constitutionally empowered and indeed required to conduct factual sufficiency reviews of the evidence when requested by appellants in criminal cases.   See Stone v. State, 823 S.W.2d 375, 379-381 (Tex.App.-Austin 1992, pet. ref'd, untimely filed).   The court of criminal appeals has affirmed this conclusion.   See Clewis v. State, 922 S.W.2d 126, 133-32 (Tex.Crim.App.1996);  see also Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997).

The standard of review for factual sufficiency claims is well established.   We must consider all the relevant record evidence, not just the evidence that supports the verdict.  Santellan, 939 S.W.2d at 164. We compare the evidence that tends to prove the disputed element of the crime with the evidence that tends to disprove it.  Id. We are authorized to disagree with a jury's verdict, even in the face of evidence tending to prove their verdict.   We are mindful of the fact, however, that we may not substitute our judgment for that of the fact finder.   We recognize we may not set aside a jury verdict merely because we feel that a different result is more reasonable.   See id. at 165. We must maintain appropriate deference to the jury's findings by finding error only when “the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.”  Id.

Our review of recent caselaw applying the Clewis-Stone standard reveals that although Texas courts recognize their duty to conduct factual sufficiency reviews in criminal cases, the exercise of that duty rarely results in the reversal of a criminal conviction.   Cf. White v. State, 890 S.W.2d 131 (Tex.App.-Texarkana 1994, no pet.) (reversing conviction for lack of factually sufficient evidence).   While we are cognizant of the fact that criminal appellants rarely meet the heavy burden imposed upon them in establishing factual insufficiency claims, we are compelled to conclude that this case is an exception to the general rule.   In accordance with the court of criminal appeals' instructions, we detail our interpretation of the evidence below.   See Clewis, 922 S.W.2d at 135-36.

With respect to the conviction for attempted murder, the overwhelming weight of the evidence mitigates against the conclusion that Reina was guilty of attempted murder.   The only evidence suggesting Reina may have had the intent to kill Davila is Livingston's testimony that (1) Reina threw a rock and hit Davila at the beginning of the incident, and (2) Reina and Brown had argued with Davila earlier in the day.   Even that evidence does not necessarily suggest Reina meant to kill Davila or to encourage his friends to kill Davila.   Livingston's statement about Reina's rock throwing is devoid of information on the size of the rock or the manner in which it was thrown.   There is no other information in the record suggesting that Reina had actually encountered Davila earlier in the day.   Most importantly, Livingston admitted his only knowledge of the incident was based on the hearsay statements of the group;  Livingston did not purport to have first-hand knowledge of the events.   Furthermore, Livingston did not identify exactly who told him about the incident;  he only said “they” told him as a group.   Livingston's testimony does not indicate that Reina himself admitted to being involved in the crime.4

All the other evidence suggests Reina did not intend to kill Davila himself or to assist Carlson and Brown in doing so.   Brown, who did have first-hand knowledge of the event, testified at trial that Reina had no knowledge of or involvement in the crime.   He further testified that the group originally went to the store to buy cigarettes.   According to Brown, all Reina did was provide the money for cigarettes.   Brown and Carlson then formulated a plan to buy lighter fluid with the money without Reina's knowledge.   The State, however, introduced prior inconsistent statements Brown gave the police after he was arrested.   Although those statements contradicted some of Brown's trial testimony, the jury could not properly use the prior inconsistent statements as substantive evidence against Reina.   See Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.-San Antonio 1991, pet. ref'd).   Interestingly, Livingston's testimony coincided with Brown's original statements to the police almost perfectly, and both Brown and Livingston testified that they spent time alone after the assault outside the presence of Reina and Carlson.   Brown testified that on the night of the assault he lied to Livingston about Reina's involvement.   The convenience store clerk corroborated the fact that Brown lied in his original statement;  the clerk testified only one person came in to buy lighter fluid while Brown's original statement said Carlson accompanied him to buy the fluid.   The evidence as a whole heavily supports the conclusion that Brown finally told the truth at trial and that Livingston merely parroted the lies Brown told him on the night of the offense.

The testimony by eyewitness Scott Ferris also tends to exculpate Reina.   Ferris saw only two people beating Davila;  he identified those people as Carlson and Brown.   Moreover, Davila told the officer at the scene that two people, not three, had assaulted him.   He stated at trial that he was not sure he remembered three people being involved but he definitely remembered two people beating him.   Reina's mother testified that Reina denied being involved in the crime or knowing what Carlson and Brown were doing while he sat in his car.   There is no evidence in the record suggesting Reina could see the attack taking place.

In short, Livingston's secondhand testimony is the lone shred of evidence suggesting Reina had the intent to injure Davila.   The rest of the evidence suggests Reina was unaware of Davila's presence at the store that evening and could not have had any intent to do anything to Davila at all.   We find the jury's verdict manifestly unjust in the face of the overwhelming evidence that Reina was unaware of any criminal assault.   We hold the evidence, while legally sufficient, is factually insufficient under the Clewis standard to support the verdict against Reina for the commission of attempted murder.   Accordingly, we sustain Reina's fourth point of error.

 We are just as convinced that the evidence is not factually sufficient to support Reina's conviction for engaging in organized criminal activity.   The discussion of our previous holding applies equally to the allegation that Reina intended to establish a combination to commit either murder or aggravated assault.   The great weight of the evidence suggests that Reina did not participate in a combination to plan an attack or any criminal activity that could foreseeably lead to an attack.   The intent to establish a combination is an essential element of the offense of engaging in organized criminal activity.   See Tex.Penal Code Ann. § 71.02(a) (West 1994).   Furthermore, the State was required to prove Reina knew of the criminal purpose of the alleged combination.   See Harrell v. State, 885 S.W.2d 427, 430 (Tex.App.-Tyler), reversed and remanded on other grounds, 820 S.W.2d 800 (Tex.Crim.App.1991).   Because the evidence is factually insufficient to support an affirmative finding on the existence of a combination or Reina's knowledge of a criminal purpose, we hold the evidence is factually insufficient to support the jury's verdict.   We sustain Reina's third point of error.

Double Jeopardy

 In his eleventh and twelfth points of error, Reina contends his multiple convictions for attempted murder and engaging in organized criminal activity violate the double jeopardy provisions of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 14 of the Texas Constitution.   The article I, section 14 double jeopardy provisions of the Texas Constitution provide the same protection as their counterparts in the United States Constitution.   See Lozano v. State, 860 S.W.2d 152, 154 n. 2 (Tex.App.-Austin 1993, pet. ref'd) (citing Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex.Crim.App.1990)).   Both constitutions prohibit (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.   See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980);  Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991).

Reina focuses on the third type of double jeopardy prohibition;  that is, he contends he is suffering multiple punishments for the same offense.   In order to establish guilt of engaging in organized criminal activity, the State must prove, among other things, that the defendant committed or conspired to commit one of the many predicate offenses listed in Texas Penal Code section 71.02(a)(1) through (10).   Reina argues that, when a defendant is charged with both engaging in organized criminal activity and a separate offense that happens to be included in section 71.02(a)(1) through (10), the two offenses “merge” and become the “same” offense.

A court may impose cumulative punishment in a trial for the violation of two statutes, regardless of whether those two statutes proscribe the “same” conduct under the other two types of double jeopardy prohibitions, if the legislature so intends.  Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983);  see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932);  Ex Parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992).   If a court determines the legislature intended to impose cumulative sentences for the same conduct, the court may end its inquiry and impose both sentences.   See Missouri, 459 U.S. at 368-69, 103 S.Ct. at 679-80.   Therefore, whether the two offenses alleged in this case are the “same” or “merged” offenses is irrelevant if we find the legislature intended multiple punishments for both.

Assuming without deciding that the two statutes enforced in this case proscribe the same conduct, we conclude the legislature intended to impose cumulative punishments for the violation of both statutes.   The legislature specifically provided that a person's being charged with, acquitted, or convicted of an offense underlying the organized criminal activity statute is no defense to prosecution under the organized criminal activity statute.   See Tex. Penal Code Ann. § 71.03(3) (West 1994).   This provision evinces the legislature's intent that a person may be tried and convicted of both engaging in organized criminal activity and attempted murder, one of the predicate offenses listed in the statute.   Therefore, we hold the simultaneous prosecution of Reina for attempted murder and engaging in organized criminal activity did not violate the double jeopardy provisions of either the federal or state constitution.   Accordingly, we overrule Reina's eleventh and twelfth points of error.


We have held Reina's convictions are not factually supported by the evidence.   We, therefore, reverse Reina's convictions and remand the cause to the trial court for a new trial.   See Clewis, 922 S.W.2d at 133-34.


1.   Reina brings thirteen points of error, alleging (1) the convictions were not supported by legally or factually sufficient evidence, (2) the deadly weapon findings were not supported by the evidence, (3) the trial court erred in permitting the State to impeach one of its witnesses, (4) the trial court erred in failing to grant a mistrial based upon an improper sidebar remark by the State, (5) his multiple convictions violate the double jeopardy provisions of the state and federal constitutions, and (6) the trial court erred in failing to sever Reina's trial from Carlson's.

2.   The record does not reveal why Brown was not tried with Reina and Carlson.

3.   Neither the indictment nor the jury charge alleged other possible theories of attempted murder, such as the intentional causation of serious bodily injury coupled with the commission of an act clearly dangerous to human life, or felony murder.   See Tex.Penal Code Ann. § 19.02(b)(2), (3) (West 1994).

4.   The State argues Reina adopted the statements as personal admissions by not correcting the speaker about the extent of Reina's involvement.   See Alvarado v. State, 912 S.W.2d 199, 214-15 (Tex.Crim.App.1995).   While this is one possible interpretation of the evidence, Reina's silence during the telling of the story does not necessarily support the inference that he agreed with the version told.   A reasonable person might well stand silent while two violent men brag about brutally beating and then burning a victim.The State also points out that Livingston testified that all three of the alleged assailants were “pumped up” while relating the story.   We do not find this evidence probative in light of the fact that Livingston did not specify which person told him which part of the story.   Livingston's testimony does not establish that Reina incriminated himself;  therefore, Reina's demeanor during the alleged conversation was irrelevant.

CARROLL, Chief Justice.

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