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### MEMORANDUM OPI NIO N No
. 04 -0 5- 00 16 4- CR Fe rnando LA NC ON , Appellant

v . T h e STA TE of

Te xas, Appellee Fr om the 49th J udicial District Court, Webb County , Texas

Trial Court No. 2004-CRN-000281-D1 Honora ble Manuel R. Flor es, Judge Pre siding Opinion by : Steven C. Hilbig, J ustice Concurringopinion by : Phy lis J . Speedlin , J ustice Sitt ing: Phy lis J . Speedlin, J ustice

Rebec ca Simmons, J ustice Steven C. Hilbig, Just ice Deliver ed and F iled: November 12, 2008 AFF I RMED Fe rnando L ancon a

ppeals his convictions for murder, attempted m urder , and dea dly conduct

a ft e r a jur y tr ia l. We a ff

ir m th e tr ia l c ourt ’s jud g me nt.

B ACKG ROUND L ancon, a long with c o-def endants Alfonso Villarre al and Jorge Z uniga , wer e ea ch cha rg ed with murder, attempted murder, a nd deadly conduct resulting from a shoot ing which t ook place on J une 11, 2003. Af

ter a joint jury

trial, Z uniga w as acquitted of all char g es, but the re maining04

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1 ... A l t ho ug h do cu m en t s i n t he clerk ’ s rec o rd estab l i sh that A l f o nso V i l l arre al’ s nam e is s p ell ed wit h two “r”s, t he co urt of cri m i nal ap p eal s spell ed the nam e “V i l l areal ” t hrougho ut i t s o p i ni o n. W e wi l l accurat el y quo t e t he o p i ni o n; ho wever, i n our d i scus si o n, we use t he co rr ect s p el l i ng.

- 2- de fe nd ants we re fo un d guil ty on a ll c ha rg e s. On a

pp e a l, t his c ourt he ld t he e vid e nc e wa s f

a c tua lly insufficient to support the jury ’s ver dicts ag ains t L ancon. Lan c on v . S tate , 2 2 0 S. W. 3 d

5 7 ( T e x. App.–San Antonio 2006), vacate d , 253 S.W .3d 699 (Tex. Crim. App. 2008). The Texas Court of Criminal Appeals re verse d, holding we incorrec t ly applied the standa

rd of r eview be cause the evidenc e wa s contradic tory and “la rg ely based on a

deter mination of thec r e dibilit y of the witnesse s,” and we “ failed to de fer

to the jury ’s ver dict.” Lancon , 253 S.W .3d at 707. The c ourt rema nded the appea l to this court “ to conduct a f actua l sufficienc y

revie w in acc ordanc e with [ its] opinion.” Id. T HE E VI DE NCE Th e e vid e nc e pr e se nte d at tri a l wa s exha us tiv e ly se t for

th in the pr e vio us op ini on s. B e c a us e the cour t of criminal appe als’ opinion acc urate ly summarizes the fac ts, we quote fr om its opi nion 1 : On June 11 , 2 00 3, Ap pe lla

nt’ s c o- de fe nd ant, Al fo ns o Villa re a l, w a s at hi s neig hborhood re cre ation cente r. Another boy , Hec tor Domingue z, wa s also visiting the re c ce nter with his friend, D aniel Diaz. While at th e re c ce nter, Dominguez started a verba l al t er cation with Vil lare al. When the ar g ument was ove r, Villare al made a phon e ca l l and was soon picked up in a mar oon car . Shortly there afte r, Domingue z and Diaz left the rec cente r and be g an wa lking to F reddie Soliz ’s house, which wa s approximately one block awa

y . When Domingue z and Diaz arrived at the Sol iz ho us e , F re dd ie Sol iz c ame out to the sid e wa lk i n f ro nt o f t he ho us e to t a lk t o the t wo boy s. A m aroon or purple car with thre e people inside stopped in front of the Soliz house, and V illarea l got out of the car to fig ht Domingue z. A second per son, holding a g un, also g ot out of t he car. This sec ond individual fired two shots in the dir e c tio n o f D omi ngue z, D iaz , an d So liz, wh o w e re sta nd ingin f ro nt o f t he Sol iz house. When the shooting sta rted , Do m ingue z ran toward the back of the house, while Soliz and Diaz stay ed in the fr ont y ard. A ft erfiringtwo shots, the shooter jumped back into the c ar, a s did Villareal, a nd the ca r sped awa

y . This entire inc ident lasted for less than one minute. While neither of the sh o t s hit the three boy s in the front y ard, one bullet went throug h the wall of the Soliz residenc e and hit and killed e l e v e n - m o n th

- o l d

F e d e r i c o S o l i z III
. The fi rs t 9 11 call the police rec eived wa s made at 9:20 p.m. W hen the Detec tives arr ived at the scene at 9:30 p.m., they asked Domingue z who ha d shot at04

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- 3- him , a nd Do min g ue z tol d the m that the sh oo te r w a s App e lla nt, a c ou sin of Vi lla re a l. A s e c on d 9 11 c a ll w a s r e c e ive d a t 9:2 6 p. m., in wh ic h the c a lle r s a id t hat th e su sp e c ts might b e at 1418 Ke a

rn e y Str e e t, t he a dd re ss a t w hic h App e lla

nt l ive d w ithhis g randmother . Offic ers we re se nt to the addre ss, but they did not find Appellant or the maroon ve hicle. While office rs wer e at the sc ene of the shooting, Do m i ng uez saw Appellant drive by

in a white Cadillac a

nd informed t h e off

icer s. Roughly

four minutes after

that, Investig ator Rodrigu e z n o ticed that the white Ca dillac had stopped in the street a

bout a half a

block awa

y from the scene . Police approa ched the Cadillac and de ta ine d Appella

nt a nd Jorg e Z un ig a . D e te c tiv e Cantu a dmi nis te re d gun sh otresidue te sts on both A p p el l an t an d Z uniga and took the clothingthat they wer e we ar i n g. Domingue z and Diaz gave videotape d statements to the police. The y wer e also shown photo lineups and aske d if Appellant was in the lineup. B oth identified Appellant cor

rec tly . Soliz also told police that Appellant was the shooter, but did not ide nti fy him in a line up . Polic e we re ne ve r a ble to l oc a te the maro on

ve hic le , n or

did the y re c ov e r t he we a po n th at w a s u se d in

the sh oo tin g . A lth ou g h Z un ig a ’s g un sh otre sid ue c ame ba c k pos iti ve , App e lla nt’ s gun sh ot- re sid

ue te st c ame ba c k n e g a tiv e , s o there was no phy sical evide nce linkingAppellant to the cr ime. The re st of the fa cts surroundingthe ca se ar e conte sted, as Appe llant claimed that his y oung er br other, Edua rdo, committed t h e crime. At trial, both Dominguez and Diaz testified, as did thre e g irls who wer e witnesses to the shooting a nd sever al police off icer s and detec tives. Domingue z testified that Villarea l exi ted the mar oon vehicle a nd asked him if he w anted to fig ht, and when Appellant got out of t he ca r, Villarea l order ed Appellant to shoot. Although Domingue z ran e ither whe n the gun was c ocked or when the shooting beg an, he testified that he saw Appe llant shoot the g un. He also stated that he w as shown thre e lineups on the nig ht of the shooting. A t first Doming uez testified t hat he did not rec og nize anyone, but he later stated t hat he identified Appe llant. When Domin gu ez was a sked about the a ppear ance of the shooter, he first said that he didn’t reme mber what the shooter was we ar i n g, b ut moments later he sa id that A ppellant had been wea

ring a white shirt, blue shorts, and a blue Ne w York Y ankee s cap a nd h ad held the gun in his right hand. D omingue z also admitted that he smoked mar iju ana a lmost every day , including the day

of the shooting. How ever , Domingue z testified that he was 100% sure that Appellant wa s the shooter a

nd not his brother, Eduar do, whom Domingue z also knew. Daniel Dia z testi fied that he knew Appe llant beca use he ha d seen him bef

ore, but that he did not know Villarea l prior to the shooting. D iaz also said that he did not see who was drivingthe vehicle and that he identified Appellant and V illarea l from lineups. The day

afte r the shooting , Diaz ident i fi ed Z uniga as the drive r. Diaz testified that the shooter was wea ring a white shirt and pa

nts, but no baseball ca

p. He also admitted on the stand that, while he could not be positive that he smoked marijuana the day of the shooting , it was possible beca use he of

ten smoked marijuana

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- 4- Kimberly Sanchez, a g irl wh o was a lso at the rec cente r on the da y of the shooting, testified t h at s he witnessed the argument betwee n Domingue z and Villarea l. She said that, after the ar g ument, she saw V illarea l make a phone call and hear d him a sk for “Moiky ,” Appellant’s nickna me. Sanche z testi fied that she did not know who Moiky

was or if Villarea l even spoke to him on the phone

. S h e had le ft the re c ce nter with her

fri ends, Monica a

nd Melissa Soliz , and had sta rted wa lking to their house when she saw the maroon car stop in front of the S oliz house and sa w someone in a white shirt ge t out of the car. Sanche z testi fied that whe n they hear d the g unshots, she and her

friends r an bac k to the rec cente r. The police office rs and de tectives testified a bout their inves t i gati on of the case , including the ir arr ival at t he sce ne and the lineups shown to Domingue z and Diaz. Detec tive Cantu testified t h at h i s theory of what happene d in the 14 minutes betwee n the first 911 ca ll and Appellant and Z uniga driving by in the Cadillac wa s that the three men drove awa y from the shooting , Appellant dro p ped Villare al off, Ap pe lla nt a nd Z uniga dis po se d o f t

he c ar a nd the ir c lot hin g , App e lla

nt w a sh e d h is ha nd s, and the n App e lla

nt a nd Z un ig a g ot i n App e lla

nt’ s w hit e Ca dil la c to r e tur n to th e s c e n e . D e t e c t i v e C an tua dm i t t e d th a th e h a d

n o e v i d e n c e t o p r o v e h i s th e o r y. De te c tiv e Cantu

a lso te sti fi e d ab out a sea

rc h warr ant that wa s exec ute d at the ho me of Ly dia Fe rnande z, an aunt of Villarea l and Appellant. Seve ral pe ople wer e ar rested at Fe rnande z’s home and wea pons wer e seized, althoug h none matche d the murder wea pon. All three de fenda

nts, includin g Ap pellant, testified at tria l. Appellant and Z uniga testified about the eve nts leadingup to their detention and sa id that they wer e toge ther on that e veningbut that neither of the m had been w ith Villareal or involved in the shooting. Appellant also testified that he and his brother , Eduardo, ha d been raised in se parate households, and he demonstrated that h e wa s left-ha nded by signinghis name in front of the jury

. Villarea l testified t hat Eduardo was the shooter, but th at he di d no t kn ow that E du ard o h a d a g un and he did no t or de r E du ard o to shoot at D omingue z and Diaz. V illarea l a dmitted that he fled to Me x i co fol lowing th e s h o o t i n g. Additionally , sever al family members of

Appellant and V i llarea l testified, including Jose Gonzalez, the cousin o f Ap p el lant, Eduardo, a nd Villarea l, who testified that he wa s the driver and Edua rdo was the s hooter. Gonz alez stated t hat he was tol d b y

his Aunt L y dia to pick Villare al up at the r ec c enter beca use Villare al was g et t i n g b eate n up and Edua rdo ca me along . Gonzalez said that, after he and Eduardo pic ked up Villare al, they wer e drivingback home when Eduardo and Villareal jumped out of the ca r, ar g ued with some boy s on the stree t, and then Eduardo sta

rted shooting

. Gonzalez testified t hat he did not know t hat Eduardo had a g un and th at aft er the sh oo tin g he dr op pe d b oth Ed ua rd o a nd Vi lla re a l of f at hi s aunt’s house. H e also said that he had not talked to Eduardo since t hat eve ning a nd thought that the police would arr est Eduar do beca use he he ard that they

wer e looking fo r V ill are a l.04

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- 5- Gonzalez’s m o th e r , Av a

M a ria Gonzalez, testified that she owne d the maroon car and that her

son had driven it on J une 11. Mrs. Gonzalez a dmitted that when she was que stioned by

the pol ice, she told them that her son had a rrived home at 7:45 p. m. a nd ha d n e ve r l e ft

the ho us e a ft e r t

hat. Severa l aunt s o f Ap p el lant and Edua rdo testified that on the da y of the shooting a

nd in the day s after , they hear d Eduardo c onfess that h e h ad b een the shooter, but that he thoug ht he had shot one of the boy s in front of th e house. One aunt eve n told the police that she be lieved that Edua rdo had wrappe d t h e gu n i n a towel and hidden it, which r esulted in the subsequent se arc h of Ly dia Fe rnande z’s home. Villare al’s mother, Y olanda, testified that she also heard Eduardo admit to the shooting on two sepa

rate occa sions, and she g ave Detec tive Cantu a statement a bout th i s fi v e d ay s af

t er th e s h o o t i n g. Lancon , 253 S.W .3d at 701-704. D I S CUS S I ON When we re view the e vidence for f actua l sufficienc y , we look at the e vidence in a neutra l light g iving a lmos t co m p l ete defer ence to the jury ’s deter minations of cre dibilit y . Lancon , 253 S.W .3d at 705. We reve rse only if the evid en ce supporting the ve rdict is so weak that the ver dict seems cle arly

wrongand manife stly

unjust or if the evidenc e supportingthe verdic t is outwe ighe d by the g rea t we i gh t and pre pondera

nce of the evidenc e. W

ats on v . S tate , 204 S.W .3d 404, 414-15 (Tex. Crim. App. 2006). Tw o e y e wi tne sse s –

Do min g ue z an d D ia z – te sti fi e d L anc on wa s the pe rs on wh o fi re d s ho ts at them. Althoug h Diaz a dmitted dur ing cross-e x amination it was possible he could have mistaken Ed ua rd o L anc on

fo r t he a pp e lla nt, he a lso te sti fi e d th a t he “k ne w how [F e rn and o] look e d” and did not think he made a mistake in his identification. Domingue z testi fied he was “ one-hundr ed per cent sure” appellant wa s the person who shot at him, he knew appe llant’s brother E duardo, a nd it was not Eduardo who shot at them. As discussed in the prior opinions in t h i s ca s e, Di az and Dominguez probably used marijuana

the day of the shooting and ther e we re a n u m b erof conf licts and inc on sis te nc ie s b e tw e e n th e ir te sti mony , a

nd e ve n w ith in thei r own t e sti mony , a s to so me de ta ils

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- 6- Ho we ve r, oth e r p art s of the ir te sti mony we re c on sis te nt a nd de mon str a te d a

n a bil ity to r e c a ll d e ta ils of the incide nt. Both witnesse s testified they knew L ancon be fore this incident, thus lessening the
c ha nc e of a mis ide nti fi c atio n. B oth

Di a z an d Dom ingue z ide nti fi e d the we a po n use d as an

a uto matic pistol, and the evidenc e indi cate s the weapon was likely an automatic. Both witnesses a lso testified the pis tol wa s b la c k in

c olo r. Th e jur

y c ou ld h ave ratio nal ly cho se n to be lie ve the e y e wi tne sse s’ identification of a

ppellant. The de fense prese nted evidenc e Edua rdo L ancon w as the pe rson wh o fi re d the gun and

argue d the e y e wi tne sse s we re mis take n as to the ir ide nti fi c a tio n. B ut t

he re we re inc on sis te nc ie s in the def ense e vidence as well. J ose Gonzalez testified he drove the maroon c ar the night of the
s h o o ti n g an d

E d u ar d o L an c o n f

ir e d th e s h o ts
. H o w e v e r , G o n za le z’ s mo th e r , A n a M ar ia G o n za le z, admitted during cross-e x amination she previously told a uthorities that on the night of the shooting J o s e Gonz alez came home ar ound 7:45 p.m. and did not leave the home for the r emainder of the evening

. Villarre al testified that when he called his a unt’s house for a ride from t h e recre ation
c e nte r, he did no t a sk fo r anyon e in pa rt ic ula r. Ye t Ki mbe rl y

Sanc he z, w ho wa s th ir

te e n y e ars old and had no appar ent m otive to fabr icate, testified she heard Vill arr eal ask for “ Moiky ” – F erna ndo L ancon’ s nickname. The evidenc e in

th is c a s e w a s c o n f

li c ti n g an d

h o tl y c o n te s te d

. T h e St a te p r e s e n te d two ey ewitnesse s wh o t estified L ancon w as the shooter . L ancon sha rply cross-e x amined the ey ewitnesses a

nd exposed inco n s i s t en cies in their testimony and in other pa

rts of the State’s evidenc e. He prese nted plausible testimony that a diffe rent pe rson w as responsible for the c rime, but there w ere also inconsistencies in the theor y that Eduardo L ancon w as the shooter . Given the inconsistencies a

ppare nt in both theories, the re solution of the conflicts rested on the cre dibilit y of the witnesses a

nd was the p ro v i n ce of the jury . The jury , afte r hea ringall the evidenc e, re

jected04

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- 7- L ancon’ s proffe red de fense . We cannot conc lude the evidenc e supporting the verdic t is so weak that the ver dict seems cle arly wrongand manife stly

unjust or is outweighe d by the g reat weig ht and preponde ranc e of the evidenc e. The trial c ourt’s judg ment is affirme d.
Steven C. Hilbig, Just ice Publis h