STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH
COURT OF APPEALS EL PASO COUNTY
participated with gang members in a gang-related assault. The
complainant testified that he was assaulted by gang members
and that appellant was one of the people who assaulted him.
The court of appeals held that the evidence was insufficient
to show that appellant was himself a member of the gang. We
hold that the court of appeals failed to view the evidence in
the light most favorable to the verdict and that it therefore
erred in holding the evidence to be insufficient.
Bejaran, a former member of the Barrio Azteca gang, gave an
interview with National Geographic as part of its
"Lockdown" series on street gangs. Whether it was
the result of this interview or for some other reason,
Bejaran aroused the ire of the gang leadership-earning
himself a "green light" or a "hit, "
meaning that gang members who saw him would do what they
could to hurt him, including killing him on sight. Bejaran
was later assaulted by a group of people while attending a
party. Appellant participated in this assault and was charged
with engaging in organized criminal activity as a member of a
testified at trial about his ordeal. While he was at the
party, he recognized a Barrio Azteca gang member known as
"2Short." Upon seeing 2Short, Bejaran left, but he
later returned. When he came back, the hostess told Bejaran
that he needed to leave. As he turned to leave, Bejaran ran
into another gang member known as "Giant, " and the
two began to fight. Bejaran testified to what happened next:
Q. What happens next?
A. And then we're pushing the fight towards the middle of
the street, right there by the driveway, and other gang
members start coming towards me, at least like six at that
time, at that moment.
Q. Do you recognize anybody?
Q. Who did you recognize?
A. I recognized Hawaiiano. I recognized Felix. I recognized
Tiny. I recognized Sleepy. I recognized 2Short and, of
later testified that "Sleepy" was appellant's
nickname. Testimony from another witness showed that Felix
was appellant's brother, and other testimony showed that
there were two individuals known as "Tiny" who
participated in the fight, one of whom was from Chaparral and
was appellant's brother or stepbrother. Bejaran stated
that "a lot more Azteca members" joined the fight,
but he "didn't recognize all of them." Several
of the gang members stabbed Bejaran with knives, while
Hawaiiano and appellant stomped on him.
this description of the attack, the State began questioning
Bejaran about each of the identified individuals, one by one,
beginning with an identification of the individual in a photo
array. During the individual questioning about 2Short,
Hawaiiano, Giant, Tiny, and Felix, the State asked Bejaran if
each was a Barrio Azteca gang member and Bejaran responded
affirmatively. The State also asked Bejaran about Tiny from
Chaparral, and Bejaran explained that it was Tiny who first
introduced him to appellant:
Q. Okay. And how do you know Tiny from Chaparral?
A. I've known him from the jail Annex.
Q. Okay. And did you work together?
A. And we worked together. I ended up running into him at a
job site at some apartments, and he's the one who
introduced me to Sleepy, and he's the one who introduced
me to Felix'[s] brothers.
Q. And were they introduced to you just as, "these are
my brothers, " or were they introduced to you as gang
A. As prospects.
Q. Okay. So not quite gang members but prospects?
Bejaran testified more about the fight:
Like when I swung [at Giant], I barely, like missed, but,
like, I grazed him, and he went back. And I was going to try
to hit him again, and that's when I saw like five of
them, the ones that I had mentioned, the ones that I had
punched. I saw them right there, and then when I started
fighting them from the driveway, fighting them all towards
the street-I didn't know what my brother was doing. I was
too involved in these guys. And the next thing I know,
I'm surrounded by like 18, 20 of them.
Sanchez, a detective with the gang unit of the El Paso Police
Department, testified that the gang unit administers a
database of gang members based on criteria in the Code of
Criminal Procedure. One criterion alone was sufficient to
classify a person as a gang member if that criterion was
either an in-court self-admission of gang membership or a
judgment of conviction for a gang-related
crime. Otherwise, two criteria were required,
in one situation, three criteria. Some of these criteria
included a self-admission of gang membership outside of
court, associating with known criminal street gang members,
being arrested with known gang members for a crime that is
consistent with gang activity, or using specific letters,
words, marks, or colors associated with the
Sanchez testified that several of the people involved in the
assault met at least two of the criteria in the two-criteria
situation. For example, ...