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Barrientos v. State

Court of Appeals of Texas, First District

December 14, 2017


         On Appeal from the 208th District Court Harris County, Texas Trial Court Case No. 1414140

          Panel consists of Justices Keyes, Brown, and Lloyd.


          Evelyn V. Keyes Justice.

         A jury convicted appellant, Arlin Walbert Barrientos, of the first-degree felony offense of murder and assessed his punishment at fifty years' confinement.[1] In two issues, appellant contends that (1) the State failed to present sufficient evidence that he committed the offense of murder under the law of parties, and (2) the trial court erroneously admitted evidence of gang activity and appellant's gang affiliation during the guilt-innocence phase of trial.

         We affirm.


         A. Factual Background

         On January 4, 2014, Nicholas Perez and another unnamed individual celebrated their respective birthdays by having a house party on Nyoka Street, a street with a mixture of industrial properties, businesses, and residences in northwest Houston. The party was well attended, with people socializing, drinking, and smoking both inside of the house and in the front yard, which was surrounded by a chain-link fence. One of Perez's long-time friends, the complainant Wayland Clark, attended the party, and he spent time with Perez "just having fun and drinking."

         After midnight, Perez and Clark walked through the gate in the fence surrounding the yard to Perez's car, and Perez heard gunshots. Perez could not tell where the gunshots were coming from, but he ducked down and grabbed his own pistol from his waistband. A bullet grazed Perez in the arm and back, and two other bullets hit Clark in his neck and lower abdomen. Clark later died from his injuries. Perez ran toward Nyoka Street, and he saw a car quickly pulling out of a parking lot adjacent to the house and driving down the street. Perez testified that "the first thing that came to my mind was that car is driving off fast, " and he ran a little way after the car and fired his pistol into the air.

         Dakotah Drakeford learned about the party on Nyoka Street from social media. She arrived around 9:30 or 10:00 p.m. She testified that to get to the house partygoers had to enter through a gate in the fence surrounding the front yard. She did not witness anyone arguing during the course of the party. At one point in the evening, she was outside and standing near the front porch of the house when she heard gunshots coming from the parking lot area next to the house. Drakeford did not see who fired the gunshots. She stated that she did not believe the shooter was on foot because she heard five or six gunshots immediately followed by a car pulling away very quickly. She did not see what kind of car quickly drove off.

         Miguel Preza also learned about the party from social media. There was a large crowd of people inside the house, and Preza went outside to smoke a cigarette. As he stood about five feet from the gate inside the front yard, "They started shooting and [he] started running and [he] got shot." Preza did not see who fired the gunshots, but he did see a muzzle flash coming from the parking lot. Preza was shot in the arm and lost consciousness. Other than remembering that there were a "bunch" of shots fired, Preza could not remember anything else about the shooting.

         Aaron Clark, one of Wayland Clark's younger brothers, also attended the party. Aaron did not see anyone argue or fight at the party, and he did not see anyone with a weapon. At one point, Aaron stood outside near the corner of the house with some friends, drinking and talking. He later saw Wayland come outside with Perez. Wayland told Aaron that they were going to Perez's car to get a liquor bottle from the trunk. Aaron stayed near the corner of the house, and then he heard six or seven gunshots and saw "some fire in the sky." Aaron could tell that the gunshots were coming from the front of the parking lot next to the house, but he could not see anything else concerning the shooter. Aaron found his younger brother Brian, who was inside the house and got him away from the scene, and he then discovered Wayland lying on the ground in the parking lot, unresponsive and not breathing. Aaron stayed with Wayland until EMS arrived at the scene.

         B. The Police Investigation

         Houston Police Department ("HPD") Officer J. Butler, with the Crime Scene Unit, processed the scene of the shooting for evidence. The trial court admitted numerous photographs of the scene and the scene diagram that Officer Butler had prepared, which indicated that the house was located directly north of a small parking lot, with the gate that the partygoers used to enter the party along the north border of the parking lot. A warehouse and another building were located along the south and west borders of the parking lot, and Nyoka Street was to the east. Several cars were present in the parking lot when Officer Butler arrived at the scene after the shooting, including a white van, which was parked in the middle of the parking lot almost directly south of the gate to the house.

         Officer Butler recovered one fired cartridge casing located in the parking lot at the rear of the van. This was the only casing Officer Butler recovered from the scene. He agreed with the prosecutor that if someone had fired a semiautomatic weapon from inside a car parked in the parking lot, he would not expect to see any cartridge casings located outside of the vehicle. Officer Butler also observed a bullet strike on the driver's side door of the van, which faced the interior of the parking lot. He stated that it appeared from this strike that the bullet traveled in a south-to-north direction. There were also two large bloodstains located the scene-one on the front porch next to the front door to the house and the other in the parking lot by the hood of the van-and a trail of blood led north-to-south from the house into the parking lot.

         HPD Investigator M. Coleman and his partner, Sergeant Odum, arrived at Nyoka Street a little after two o'clock in the morning on January 5. The business that bordered the parking lot had multiple security cameras located in different positions that faced into the parking lot, and Investigator Coleman reviewed the surveillance footage. The cameras did not record the full sequence of events that occurred on the night of the shooting because they operated on a "motion system, " and the cameras did not record unless a certain amount of motion occurred within view. The trial court admitted still photographs from the surveillance footage, as well as the surveillance videos themselves.

         The surveillance footage depicted a car driving north on Nyoka Street at 12:51 a.m., turning around in a different parking lot, and driving back to the parking lot located just south of the house at 12:53 a.m. The surveillance footage showed the white van that Officer Butler photographed with three cars parked to the left of it in the parking lot. The car that was of interest to Investigator Coleman turned around in the parking lot and parked behind the cars parked to the left of the van. The subject car turned off its lights. At 1:01 a.m., the surveillance video showed "some flashes of light" and "people gathered and ducking down and darting different directions" as the car pulled out of the parking lot with its headlights on and quickly drove south down Nyoka Street. Investigator Coleman could tell from the surveillance footage that the car was occupied by the driver and a front-seat passenger. He could not identify the license plate number of this car.

         HPD Detective D. Arnold and his partner, Sergeant C. Sturdivant, began investigating the case on January 6, 2014, two days after the shooting occurred. Detective Arnold received a tip of two names-Randy and Evelyn-and began researching the case. During his research, he learned that the car that appeared in the surveillance footage was a 2006 Nissan Maxima owned by appellant. On January 12, 2014, HPD Officer S. Borak conducted a traffic stop on a Nissan Maxima a little before 3:00 a.m. Appellant was driving this vehicle, and the occupants included Randy Larios and Evelyn Rodriguez. Officer Borak detained appellant and took him to the Homicide Division.

         Detective Arnold and Sergeant Sturdivant interviewed appellant later that day. The trial court admitted an audio recording of this interview. In the interview, appellant admitted attending the house party on Nyoka Street around 9:30 with several people, including Randy Larios. The group left the party and returned to appellant's house. A few hours later, Larios asked appellant for a favor-to drive back to Nyoka Street with Larios and pick up Larios's girlfriend, who was still at the party. Appellant told the detectives that, when they arrived back at the party and were waiting for Larios's girlfriend, they saw someone walking in between cars, and Larios told him to roll down the driver's side window, which appellant did. Larios, who was sitting in the front passenger seat, then pulled out a gun from a pocket and started shooting.[2] Appellant stated that Larios knew the person walking in between cars-saying to appellant, "He's coming"-but he did not tell appellant who this person was. When asked if Larios said why he wanted to shoot this person, appellant stated, "I guess because they got into some shooting like awhile ago, with the same guy, I think, at another party." Appellant stated that this other incident occurred around two months before the shooting on Nyoka Street. Appellant knew that Larios had carried a weapon with him before.

         Appellant stated to the detectives that, after the shooting, he quickly drove away from the scene because he was scared and did not want Larios to shoot him as well. Appellant again stated that he believed they went back to the party to pick up Larios's girlfriend, and he thought that Larios did not tell him the real reason why he wanted to go back because appellant would not agree to take him if appellant knew there would be a shooting. Appellant stated that he took his car to be washed after the shooting, and he denied seeing any fired cartridge casings in his car. The detectives showed appellant screen shots from the surveillance footage, and appellant wrote on these pictures, "This is my Nissan Maxima 2006."

         After his interview, appellant took the detectives to his house, which was located in the same part of Houston as Nyoka Street. Appellant's mother brought the detectives a .40 caliber Smith & Wesson pistol, and Evelyn Rodriguez brought them five fired shell casings contained in a ...

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