i i i i i i

MEMORANDUM OPINION

No. 04-05-00164-CR

Fernando LANCON,

Appellant

v.

The STATE of Texas,

Appellee

From the 49th Judicial District Court, Webb County, Texas

Trial Court No. 2004-CRN-000281-D1

Honorable Manuel R. Flores, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

Concurring opinion by: Phylis J. Speedlin, Justice

Sitting: Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Delivered and Filed: November 12, 2008

AFFIRMED

Fernando Lancon appeals his convictions for murder, attempted murder, and deadly conduct

after a jury trial. We affirm the trial court’s judgment.

BACKGROUND

Lancon, along with co-defendants Alfonso Villarreal and Jorge Zuniga, were each charged

with murder, attempted murder, and deadly conduct resulting from a shooting which took place on

June 11, 2003. After a joint jury trial, Zuniga was acquitted of all charges, but the remaining
04-05-00164-CR

1... Although documents in the clerk’s record establish that Alfonso Villarreal’s name is spelled with two “r”s,

the court of criminal appeals spelled the name “Villareal” throughout its opinion. We will accurately quote the opinion;

however, in our discussion, we use the correct spelling.

-2-

defendants were found guilty on all charges. On appeal, this court held the evidence was factually

insufficient to support the jury’s verdicts against Lancon. Lancon v. State, 220 S.W.3d 57 (Tex.

App.–San Antonio 2006), vacated, 253 S.W.3d 699 (Tex. Crim. App. 2008). The Texas Court of

Criminal Appeals reversed, holding we incorrectly applied the standard of review because the

evidence was contradictory and “largely based on a determination of the credibility of the witnesses,”

and we “failed to defer to the jury’s verdict.” Lancon, 253 S.W.3d at 707. The court remanded the

appeal to this court “to conduct a factual sufficiency review in accordance with [its] opinion.” Id.

THE EVIDENCE

The evidence presented at trial was exhaustively set forth in the previous opinions. Because

the court of criminal appeals’ opinion accurately summarizes the facts, we quote from its opinion1:

On June 11, 2003, Appellant’s co-defendant, Alfonso Villareal, was at his

neighborhood recreation center. Another boy, Hector Dominguez, was also visiting

the rec center with his friend, Daniel Diaz. While at the rec center, Dominguez

started a verbal altercation with Villareal. When the argument was over, Villareal

made a phone call and was soon picked up in a maroon car. Shortly thereafter,

Dominguez and Diaz left the rec center and began walking to Freddie Soliz’s house,

which was approximately one block away. When Dominguez and Diaz arrived at the

Soliz house, Freddie Soliz came out to the sidewalk in front of the house to talk to

the two boys. A maroon or purple car with three people inside stopped in front of the

Soliz house, and Villareal got out of the car to fight Dominguez. A second person,

holding a gun, also got out of the car. This second individual fired two shots in the

direction of Dominguez, Diaz, and Soliz, who were standing in front of the Soliz

house. When the shooting started, Dominguez ran toward the back of the house,

while Soliz and Diaz stayed in the front yard. After firing two shots, the shooter

jumped back into the car, as did Villareal, and the car sped away. This entire incident

lasted for less than one minute. While neither of the shots hit the three boys in the

front yard, one bullet went through the wall of the Soliz residence and hit and killed

eleven-month-old Federico Soliz III.

The first 911 call the police received was made at 9:20 p.m. When the

Detectives arrived at the scene at 9:30 p.m., they asked Dominguez who had shot at
04-05-00164-CR

-3-

him, and Dominguez told them that the shooter was Appellant, a cousin of Villareal.

A second 911 call was received at 9:26 p.m., in which the caller said that the suspects

might be at 1418 Kearney Street, the address at which Appellant lived with his

grandmother. Officers were sent to the address, but they did not find Appellant or the

maroon vehicle. While officers were at the scene of the shooting, Dominguez saw

Appellant drive by in a white Cadillac and informed the officers. Roughly four

minutes after that, Investigator Rodriguez noticed that the white Cadillac had stopped

in the street about a half a block away from the scene. Police approached the Cadillac

and detained Appellant and Jorge Zuniga. Detective Cantu administered gunshotresidue tests on both Appellant and Zuniga and took the clothing that they were

wearing.

Dominguez and Diaz gave videotaped statements to the police. They were

also shown photo lineups and asked if Appellant was in the lineup. Both identified

Appellant correctly. Soliz also told police that Appellant was the shooter, but did not

identify him in a lineup. Police were never able to locate the maroon vehicle, nor did

they recover the weapon that was used in the shooting. Although Zuniga’s gunshotresidue came back positive, Appellant’s gunshot-residue test came back negative, so

there was no physical evidence linking Appellant to the crime.

The rest of the facts surrounding the case are contested, as Appellant claimed

that his younger brother, Eduardo, committed the crime. At trial, both Dominguez

and Diaz testified, as did three girls who were witnesses to the shooting and several

police officers and detectives. Dominguez testified that Villareal exited the maroon

vehicle and asked him if he wanted to fight, and when Appellant got out of the car,

Villareal ordered Appellant to shoot. Although Dominguez ran either when the gun

was cocked or when the shooting began, he testified that he saw Appellant shoot the

gun. He also stated that he was shown three lineups on the night of the shooting. At

first Dominguez testified that he did not recognize anyone, but he later stated that he

identified Appellant. When Dominguez was asked about the appearance of the

shooter, he first said that he didn’t remember what the shooter was wearing, but

moments later he said that Appellant had been wearing a white shirt, blue shorts, and

a blue New York Yankees cap and had held the gun in his right hand. Dominguez

also admitted that he smoked marijuana almost every day, including the day of the

shooting. However, Dominguez testified that he was 100% sure that Appellant was

the shooter and not his brother, Eduardo, whom Dominguez also knew.

Daniel Diaz testified that he knew Appellant because he had seen him before,

but that he did not know Villareal prior to the shooting. Diaz also said that he did not

see who was driving the vehicle and that he identified Appellant and Villareal from

lineups. The day after the shooting, Diaz identified Zuniga as the driver. Diaz

testified that the shooter was wearing a white shirt and pants, but no baseball cap. 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 because he often smoked

marijuana.
04-05-00164-CR

-4-

Kimberly Sanchez, a girl who was also at the rec center on the day of the

shooting, testified that she witnessed the argument between Dominguez and

Villareal. She said that, after the argument, she saw Villareal make a phone call and

heard him ask for “Moiky,” Appellant’s nickname. Sanchez testified that she did not

know who Moiky was or if Villareal even spoke to him on the phone. She had left

the rec center with her friends, Monica and Melissa Soliz, and had started walking

to their house when she saw the maroon car stop in front of the Soliz house and saw

someone in a white shirt get out of the car. Sanchez testified that when they heard the

gunshots, she and her friends ran back to the rec center.

The police officers and detectives testified about their investigation of the

case, including their arrival at the scene and the lineups shown to Dominguez and

Diaz. Detective Cantu testified that his theory of what happened in the 14 minutes

between the first 911 call and Appellant and Zuniga driving by in the Cadillac was

that the three men drove away from the shooting, Appellant dropped Villareal off,

Appellant and Zuniga disposed of the car and their clothing, Appellant washed his

hands, and then Appellant and Zuniga got in Appellant’s white Cadillac to return to

the scene. Detective Cantu admitted that he had no evidence to prove his theory.

Detective Cantu also testified about a search warrant that was executed at the home

of Lydia Fernandez, an aunt of Villareal and Appellant. Several people were arrested

at Fernandez’s home and weapons were seized, although none matched the murder

weapon.

All three defendants, including Appellant, testified at trial. Appellant and

Zuniga testified about the events leading up to their detention and said that they were

together on that evening but that neither of them had been with Villareal or involved

in the shooting. Appellant also testified that he and his brother, Eduardo, had been

raised in separate households, and he demonstrated that he was left-handed by

signing his name in front of the jury. Villareal testified that Eduardo was the shooter,

but that he did not know that Eduardo had a gun and he did not order Eduardo to

shoot at Dominguez and Diaz. Villareal admitted that he fled to Mexico following

the shooting.

Additionally, several family members of Appellant and Villareal testified,

including Jose Gonzalez, the cousin of Appellant, Eduardo, and Villareal, who

testified that he was the driver and Eduardo was the shooter. Gonzalez stated that he

was told by his Aunt Lydia to pick Villareal up at the rec center because Villareal

was getting beaten up and Eduardo came along. Gonzalez said that, after he and

Eduardo picked up Villareal, they were driving back home when Eduardo and

Villareal jumped out of the car, argued with some boys on the street, and then

Eduardo started shooting. Gonzalez testified that he did not know that Eduardo had

a gun and that after the shooting he dropped both Eduardo and Villareal off at his

aunt’s house. He also said that he had not talked to Eduardo since that evening and

thought that the police would arrest Eduardo because he heard that they were looking

for Villareal.
04-05-00164-CR

-5-

Gonzalez’s mother, Ava Maria Gonzalez, testified that she owned the maroon

car and that her son had driven it on June 11. Mrs. Gonzalez admitted that when she

was questioned by the police, she told them that her son had arrived home at 7:45

p.m. and had never left the house after that.

Several aunts of Appellant and Eduardo testified that on the day of the

shooting and in the days after, they heard Eduardo confess that he had been the

shooter, but that he thought he had shot one of the boys in front of the house. One

aunt even told the police that she believed that Eduardo had wrapped the gun in a

towel and hidden it, which resulted in the subsequent search of Lydia Fernandez’s

home. Villareal’s mother, Yolanda, testified that she also heard Eduardo admit to the

shooting on two separate occasions, and she gave Detective Cantu a statement about

this five days after the shooting.

Lancon, 253 S.W.3d at 701-704.

DISCUSSION

When we review the evidence for factual sufficiency, we look at the evidence in a neutral

light giving almost complete deference to the jury’s determinations of credibility. Lancon, 253

S.W.3d at 705. We reverse only if the evidence supporting the verdict is so weak that the verdict

seems clearly wrong and manifestly unjust or if the evidence supporting the verdict is outweighed

by the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15

(Tex. Crim. App. 2006). 

Two eyewitnesses – Dominguez and Diaz – testified Lancon was the person who fired shots

at them. Although Diaz admitted during cross-examination it was possible he could have mistaken

Eduardo Lancon for the appellant, he also testified that he “knew how [Fernando] looked” and did

not think he made a mistake in his identification. Dominguez testified he was “one-hundred percent

sure” appellant was the person who shot at him, he knew appellant’s brother Eduardo, and it was not

Eduardo who shot at them. As discussed in the prior opinions in this case, Diaz and Dominguez

probably used marijuana the day of the shooting and there were a number of conflicts and

inconsistencies between their testimony, and even within their own testimony, as to some details.
04-05-00164-CR

-6-

However, other parts of their testimony were consistent and demonstrated an ability to recall details

of the incident. Both witnesses testified they knew Lancon before this incident, thus lessening the

chance of a misidentification. Both Diaz and Dominguez identified the weapon used as an automatic

pistol, and the evidence indicates the weapon was likely an automatic. Both witnesses also testified

the pistol was black in color. The jury could have rationally chosen to believe the eyewitnesses’

identification of appellant. 

The defense presented evidence Eduardo Lancon was the person who fired the gun and

argued the eyewitnesses were mistaken as to their identification. But there were inconsistencies in

the defense evidence as well. Jose Gonzalez testified he drove the maroon car the night of the

shooting and Eduardo Lancon fired the shots. However, Gonzalez’s mother, Ana Maria Gonzalez,

admitted during cross-examination she previously told authorities that on the night of the shooting

Jose Gonzalez came home around 7:45 p.m. and did not leave the home for the remainder of the

evening. Villarreal testified that when he called his aunt’s house for a ride from the recreation

center, he did not ask for anyone in particular. Yet Kimberly Sanchez, who was thirteen years old

and had no apparent motive to fabricate, testified she heard Villarreal ask for “Moiky” – Fernando

Lancon’s nickname. 

The evidence in this case was conflicting and hotly contested. The State presented two

eyewitnesses who testified Lancon was the shooter. Lancon sharply cross-examined the

eyewitnesses and exposed inconsistencies in their testimony and in other parts of the State’s

evidence. He presented plausible testimony that a different person was responsible for the crime,

but there were also inconsistencies in the theory that Eduardo Lancon was the shooter. Given the

inconsistencies apparent in both theories, the resolution of the conflicts rested on the credibility of

the witnesses and was the province of the jury. The jury, after hearing all the evidence, rejected
04-05-00164-CR

-7-

Lancon’s proffered defense. We cannot conclude the evidence supporting the verdict is so weak that

the verdict seems clearly wrong and manifestly unjust or is outweighed by the great weight and

preponderance of the evidence. 

The trial court’s judgment is affirmed.

Steven C. Hilbig, Justice

Publish