Alfredo Paez, Jr. v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00050-CR

ALFREDO PAEZ, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. DC-2023-CR-2239, Honorable William R. Eichman II, Presiding

February 11, 2025
OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Alfredo Paez, Jr. was one of several shooters at a restaurant in November 2020.

His actions resulted in his prosecution and conviction for several felonies. Several issues

pend for review. They concern double jeopardy, the sufficiency of the evidence, the trial

court’s jury charge, community supervision, and the effectiveness of trial counsel. We

affirm.
Background

In November 2020, an altercation between rival motorcycle gangs occurred in a

Lubbock family restaurant. As members of one group (Kinfolk) played pool, members of

the rival body (Bandidos) entered the room. Words were exchanged. Guns drawn. Shots

fired, and at least one person struck.

Appellant (a Bandido) admitted to being one of the shooters. Video captured him

entering the room, crossing in front of his rivals, reaching into his vest, and proceeding to

the rear of the room with a gun by his side. Soon thereafter, he commenced firing the

weapon. Those actions resulted in his indictment on seven counts of aggravated assault

by threat with a deadly weapon. The jury found him guilty on four counts, two concerned

the charged offense of aggravated assault (Counts I and VII) and two encompassed the

lesser-included offense of engaging in deadly conduct (Counts II and III). The jury

acquitted him of Counts IV, V, and VI. The trial court entered separate judgments on

each count memorializing the jury’s decision as to the respective Count.

Issues One and Six—Double Jeopardy and Ineffective Assistance

Via his first issue, appellant contends his convictions violate the Double Jeopardy

Clause. Even though he fired multiple times, his conduct allegedly occurred in one brief

event. Because the gravamen of the offense for aggravated assault by threat and deadly

conduct is the conduct itself and that conduct was one brief instance of discharging

multiple bullets, the State could only try him on one count of aggravated assault and/or

deadly conduct, in his estimation. So, double jeopardy barred his prosecution for seven

counts of aggravated assault and/or deadly conduct. Moreover, appellant attacks the

effectiveness of his trial counsel, via issue six, for purportedly neglecting to timely raise

this double jeopardy claim. We overrule the issues.
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The gravamen of aggravated assault is either causing bodily injury or threatening

imminent bodily injury. Shelby v. State, 448 S.W.3d 431, 438-39 (Tex. Crim. App. 2014).

Furthermore, the allowable unit of prosecution for an assaultive offense in Texas is each

victim. Id.; Gunter v. State, 673 S.W.3d 335, 344 (Tex. App.—Corpus Christi 2023, pet.

ref’d). This general rule includes assaults by threat. Marson v. State, 556 S.W.3d 924,

927-8 (Tex. App.—Eastland 2018, no pet.) (involving assault by threat and holding each

victim to be a separate unit of prosecution). As for deadly conduct involving the discharge

of a firearm, the unit of prosecution is each discharge. Lozano v. State, 577 S.W.3d 275,

278 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Miles v. State, 259 S.W.3d 240, 249

(Tex. App.—Texarkana 2008, pet. ref’d).

Here, appellant fired his handgun seven or more times. Each person named in

each count was a distinct victim of that assaultive conduct. Furthermore, per Shelby and

Marson, the State was lawfully permitted to prosecute appellant for allegedly assaulting

by threat each of those seven named victims. Appellant’s having discharged the firearm

at least seven times also meant the State was lawfully permitted to prosecute him on

seven counts of engaging in deadly conduct, per Lozano and Miles. Double jeopardy did

not bar these efforts, and we reject appellant’s contention otherwise.

Our rejection of appellant’s double jeopardy claim also undermines Issue Six.

Defense counsel is not ineffective for failing to raise or pursue groundless points. Kent v.

State, 982 S.W.2d 639, 641 (Tex. App.—Amarillo 1998, pet. ref’d, untimely filed) (holding

that counsel is not required to perform frivolous or futile acts to be reasonably effective).

Thus, neglecting to pursue the aforementioned double jeopardy complaint below did not

render defense counsel ineffective.

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Issue Two—Sufficiency of the Evidence

By his second issue, appellant argues that the jury’s verdicts of guilt lack sufficient

evidentiary support. Two grounds underlie his supposition. One concerns the alleged

inconsistency between finding him not guilty on Counts IV, V, and VI and guilty on the

remainder; supposedly, there “is no way to tell and no way a rational jury would be able

to separate appellant’s conduct into what was justified and what was not.” The other

ground concerns whether the State proved appellant intentionally or knowingly assaulted,

by threat, the victims named in Counts I, II, or III. We overrule the issue.

The standard of review is well known as set forth in Turley v. State, 691 S.W.3d

612, 617 (Tex. Crim. App. 2024). We apply it here.

Regarding the first ground, the jury allegedly accepted appellant’s self-defense

claim regarding victims Schmittou, Gollihugh, and Gould (Counts IV through VI). Having

so accepted the claim of self-defense, the jury cannot find him guilty of victimizing those

individuals named in Counts I, II, III, and VII, or so his argument goes. In other words,

the verdicts of guilty in Counts I, II, III and VII are fatally inconsistent with those in Counts

IV, V, and VI. Inconsistent, arguably, but fatally so they are not.

“When measuring the sufficiency of the evidence, each count must stand or fall on

its own.” See Hernandez v. State, 556 S.W.3d 308, 331 (Tex. Crim. App. 2018). “[I]f a

defendant is acquitted of one count and convicted of another based on the same evidence

in a single trial, [like here] he cannot rely on the inconsistent verdicts to attack the

conviction.” Id. In effect, the jury remained free to assess the claim of justification as to

each victim, and its acquitting appellant on some charges did not preclude its finding him

culpable on others.

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As for the second aspect of this issue, appellant questions the evidence underlying

his convictions for aggravated assault by threat. Allegedly, he did not intentionally or

knowingly threaten the individuals identified as the victims in Counts I, II, and III. Rather,

his threats, if any, were directed at Kinfolk members, not the bystanders identified in the

aforementioned counts. And, having directed his threats at Kinfolk, he was not

susceptible to conviction for assaulting the bystanders with threat. We disagree.

First, the jury did not convict appellant of aggravated assault by threat via counts

II and III, but rather deadly conduct. One commits deadly conduct when recklessly

engaging in conduct that places another in imminent danger of serious bodily injury. TEX.

PENAL CODE ANN. § 22.05(a). As can be seen, threatening another is not elemental to

deadly conduct. See Jefferson v. State, 346 S.W.3d 254, 257 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d) (stating assault by threat required proof that the defendant

intentionally or knowingly threatened those in the house, while deadly conduct required

proof that the defendant act recklessly when shooting). So, the State was not obligated

to prove appellant intentionally or knowingly threatened the victims named in Counts II

and III to secure his conviction for deadly conduct. And, appellant does not question the

sufficiency of the evidence underlying his conviction for that offense.

On the other hand, aggravated assault occurs when one commits assault while

using or exhibiting a deadly weapon. TEX. PENAL CODE ANN. § 22.02(a)(2). And, assault

occurs when one intentionally or knowingly threatens another with imminent bodily

injury. TEX. PENAL CODE ANN. § 22.01(a)(2). 1 And, in accordance with these provisions,

1 As stated in Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008), the manner of assault

encapsulated within § 22.01(a)(2) “is conduct-oriented, focusing upon the act of making a threat, regardless
of any result that threat might cause.”

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the State alleged, in Count I, that appellant “did then and there intentionally or knowingly

threaten TERRANCE WADE with imminent bodily injury and did then and there use or

exhibit a deadly weapon . . ..” And, to reiterate, appellant asserts that he did not threaten

Wade since he only shot at Kinfolk members. With this in mind, we say the following.

In Castaneda v. State, No. 07-15-00151-CR, 2016 Tex. App. Lexis 1796 (Tex.

App.—Amarillo Feb. 19, 2016, no pet.) (mem. op., not designated for publication), we had

occasion to review a conviction for aggravated assault by threat. According to the

evidence, appellant repeatedly shot at the house wherein his parents lived and,

purportedly, without the intent to hurt anyone therein. Id. at *3. Nevertheless, his mother

was within the house, was scared by the incident, and texted another that “she was ‘lucky

to be alive’ . . . .” Id. So too was his stepfather within the kitchen when one bullet “ended

up in the kitchen area.” Id. In finding the evidence sufficient to support the conviction,

we first discussed the elements of the crime and the definitions of the applicable mens

rea. Id. at 5-6. Then, we observed that “even if appellant did not intend to physically

harm another person, he is still responsible if his acts caused another to feel threatened

with imminent bodily injury.” Id. at *8. Again, appellant targeted neither parent with harm.

Yet, his mother feared bodily harm while a bullet came within the vicinity of his stepfather.

Those circumstances coupled with his repeatedly firing at the house sufficed to support

the conviction. Castaneda informs our decision at bar.

Appellant may not have directed his threat expressly at Wade. Nevertheless, one

of the many, many videos admitted into evidence showed appellant’s firing in the direction

of Wade. The latter stood within feet of the weapon’s muzzle. Indeed, from a muzzle

flash captured on video when appellant fired, a fact finder could reasonably infer that at

least one bullet passed within a foot of Wade’s right shoulder as Wade crouched and
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retreated. Though not identical to the evidence in Castaneda, the aforementioned

circumstances satisfy the legal parameters of aggravated assault by threat we discussed

there. The accused discharged his weapon. His aim was in the direction of the

complainant. And, the conduct was of the ilk to cause a reasonable person to fear for his

life.

And, to the foregoing we also add discussion found in Junious v. State, No. 01-05-

00954-CR, 2007 Tex. App. LEXIS 4811 (Tex. App.—Houston [1st Dist.] June 21, 2007,

pet. ref’d) (mem. op., not designated for publication). In effort to stop appellant from

hurting Kimberly, the complainant impeded appellant’s advance with a knife towards

Kimberly. Appellant argued that his conviction for assault by threat should not stand

because, among other things, his threats were directed at Kimberly, not the complainant.

In rejecting that and his other contentions, the reviewing court indicated “it is the

appellant’s threat, made with the intent to place the complainant in fear of imminent

serious bodily injury” that is pivotal. Id. at *11. It mattered not whether the complainant

actually feared bodily injury. Id. Approaching Kimberly with a knife, encountering the

complainant, and instilling the complainant with fear was enough to support the

conviction. Id. at *11-12. That appellant may have intended to direct his actions at

Kimberly did not mandate acquittal. So, the analysis and result in Junious bolsters our

conclusion that though the accused directs his action at one person, his conduct may

nevertheless render him criminally culpable for threatening another.

One must also remember words from Olivas v. State, 203 S.W.3d 341 (Tex. Crim.

App. 2006). That court observed “threat” encompasses several forms of conduct. Each

form indicates an act being performed, as opposed to an act which is perceived by an

outside party. Id. at 345. The court further described one example of that conduct as “to
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be a source of danger, harm etc[.] to.” Id. It is difficult to dispute that discharging a

weapon in a manner causing bullets to fly within a foot or two of a person within the

accused’s immediate field of vision is to act as “a source of danger [or] harm to that

person.” And, it would not be unreasonable for a fact finder to infer that the accused was

aware that the nature of his conduct would be a source of danger or harm to that person.

See TEX. PENAL CODE ANN. § 6.03(b) (stating that a person “acts knowingly . . . with

respect to the nature of his conduct . . . when he is aware of the nature of his conduct”).

So, in sum, the evidence at bar permitted a rational fact finder to conclude, beyond

reasonable doubt, that appellant intentionally or knowingly threatened Wade with

imminent bodily injury while exhibiting a deadly weapon.

Issue Three—Jury Charge Error and Submission to Jury as Seven Separate
Offenses

In issue three, appellant contends the jury charge failed to accurately reflect the

law applicable to the case. Allegedly, the trial court erred in two respects. First, it should

have instructed the jury that, under § 9.04 of the Penal Code, his conduct was justified if

he was justified in the use of force per § 9.31 of the Penal Code, rather than the use of

deadly force per § 9.32. Second, the trial court should not have submitted seven

application paragraphs but rather “a single application and single self-defense

instruction.” We overrule the issue.

Regarding the matter of § 9.04 of the Penal Code, that statute provides:

The threat of force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or serious
bodily injury by the production of a weapon or otherwise, as long as the
actor’s purpose is limited to creating an apprehension that he will use deadly
force if necessary, does not constitute the use of deadly force.

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TEX. PENAL CODE ANN. § 9.04. Yet, the statute “comes with an express limitation.” Pham

v. State, 639 S.W.3d 708, 713 (Tex. Crim. App. 2022). “It applies only when ‘the actor’s

purpose is limited to creating an apprehension that he will use deadly force if necessary.’”

Id. It does not apply when deadly force is actually used for the purpose or with the intent

of injuring the victim. Id. Application of this verbiage negates any entitlement to use of

§ 9.04 at bar.

Here, no evidence shows that appellant just levied a threat by producing his

handgun to create an apprehension that he “will use force if necessary.” Rather, he used

deadly force by discharging the weapon. Thus, the trial court did not err when refusing

to apply § 9.04 and instruct the jury per that statute and § 9.31. See Gamino v. State,

537 S.W.3d 507, 510-12 (Tex. Crim. App. 2017) (finding defendant entitled to instruction

because he brandished his weapon and told others to “stop,” “get away,” and “leave us

alone” but did not use the gun); see also Wright v. State, No. 13-19-00238-CR, 2020 Tex.

App. LEXIS 2280, at *12 n.2 (Tex. App.—Corpus Christi Mar. 19, 2020, pet. ref’d) (mem.

op., not designated for publication) (stating that “[w]hile Wright’s threat of force by

producing the firearm might be justified under § 9.04, his subsequent firing of the weapon

constitute[d] the use of deadly force that must be separately justified under § 9.32 of the

penal code.”) (emphasis in original); Happy Tran Pham v. State, 595 S.W.3d 769, 779

(Tex. App.—Houston [14th Dist.] 2019) aff’d 639 S.W.3d 708 (Tex. Crim. App. 2022)

(stating that appellant was not entitled to the application of § 9.04 because he used deadly

force rather than solely threatened it).

As for the complaint about the trial court’s submitting seven application

paragraphs, the argument is dependent upon our sustaining his Issue One. Appellant

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acknowledged as much during oral submission. Having overruled Issue One, we similarly

overrule this aspect of Issue Three.

Issue Four—Verdict on Count I

Through his fourth issue, appellant argues the trial court erred in accepting the

jury’s verdict of guilty in Count I. Said verdict appeared on a form signed by the jury’s

foreman. Accompanying that form was another verdict. The latter purported to find

appellant not guilty. However, someone struck through the signature of the foreman and

wrote “void” on the face of the document. These circumstances purportedly rendered the

verdict as to Count I “informal,” thereby obligating the trial court to inform the parties and

jury of the situation. And, in accepting the verdict of guilty, the trial court allegedly failed

to abide by controlling procedures or afford appellant opportunity to poll the jury to verify

the verdict’s accuracy. We overrule the issue.

We note that the trial court asked the jury foreperson if “the jury reached a

unanimous verdict on all seven counts.” The foreperson answered “yes.” So too did the

court ask if either party cared to poll the jury; both answered “no.” This illustrates that

appellant received the very opportunity purportedly denied him; the trial court afforded

him the chance to poll the jury. Appellant now argues that he would have requested the

jury be polled had he been aware of the inconsistency in the verdict forms at the time.

However, even accepting appellant’s argument, he still failed to take the necessary steps

to preserve the issue after learning of the inconsistency.

Complaints regarding the trial court’s procedure in accepting a verdict must be

preserved by objection or motion urged at the earliest opportunity. Bullock v. State, No.

01-90-00358-CR, 1991 Tex. App. LEXIS 852, at *12 (Tex. App.—Houston [1st Dist.] Apr.

4, 1991, no pet.) (mem. op., not designated for publication); see also, Perry v. State, No.
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07-10-0447-CR, 2012 Tex. App. LEXIS 3987, at *3-5 (Tex. App.—Amarillo May 15, 2012,

pet. ref’d) (mem. op., not designated for publication) (holding that appellant’s complaint

about the allegedly ambiguous way the trial court pronounced the verdict was waived

since it was not raised in a timely objection or motion for new trial); accord, Perez v. State,

No. 05-12-00377-CR, 2013 Tex. App. LEXIS 10771, at *29-30 (Tex. App.—Dallas Aug.

26, 2013, pet. ref’d) (mem. op., not designated for publication) (holding that appellant

waived the complaint about the ambiguous nature of the verdict by failing to object). Even

after discovering the inconsistency in the verdict forms, appellant did not file a motion for

new trial raising the issue. Appellant raised his current complaints on appeal, not before

the trial court. And, in so urging them for the first time, he does not suggest he lacked

the chance to present them below at least through a motion for new trial. So, they were

not preserved for review.

Issue Five—Placement on Community Supervision

Through his fifth issue, appellant urges that the trial court should have placed him

on community supervision “with respect to all the offenses for which a judgment of

conviction was returned when the jury recommended community supervision as to one of

the offenses.” We overrule the issue.

Regarding Count VII, the jury assessed punishment at six years imprisonment but

also recommend appellant be placed on community supervision. The trial court

acquiesced, sentenced appellant to six years imprisonment but ultimately suspended the

sentence for six years. However, the trial court pronounced sentence (per the jury’s

verdicts) of six years imprisonment on Count I, and 180 days imprisonment on Counts II

and III. Furthermore, the suspended sentence in Count VII was ordered to run

concurrently with the six years levied in Count I. Doing so, in appellant’s view, meant
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“[t]he trial court refused the jury’s recommendation that [a]ppellant be placed on

community supervision by refusing to also place him on community supervision as to

Count I.” We overrule the issue.

In this case, the judge was required to place appellant on community supervision

for Count VII because the jury recommended it do so. TEX. CODE CRIM. PROC. ANN. art.

42A.055(a). The judge was not required to do the same regarding Count I. Rather, it

followed the very recommendation and verdict of the jury by sentencing to imprisonment

for six years.

Indeed, the jurors were afforded the opportunity to recommend probation for each

count upon which they found appellant guilty; yet, they did not, save for Count VII. In

abiding by their decision, it can hardly be said that the trial court “refused the jury’s

recommendation” or ignored their intent. More importantly, we recognized the legitimacy

of the trial court’s suspending the sentence on one count while ordering its execution on

another in Drain v. State, 540 S.W.3d 637, 642-43 (Tex. App.—Amarillo 2018, no pet.).

We affirm.

Brian Quinn
Chief Justice

Publish.

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