A 28-year-old Bryan man accused of being the gunman in a gang-related 2007 drive-by shooting had his conviction and 50-year sentence overturned on appeal this week.
David Samaripas Jr. will face a retrial unless prosecutors from the Brazos County District Attorney's Office appeal the decision to a higher court or the two sides reach a plea bargain.
Samaripas was convicted in January 2009 of engaging in organized criminal activity after prosecutors said he fired nine to 20 shots toward a home with 10 adults and four children inside. No one was hit by any of the bullets.
A gang expert testified that Samaripas was a known member of a criminal street gang in Bryan and that the house he fired at was associated with a rival gang.
The three-member panel of judges in Texas' 10th Court of Appeals said in a published opinion overturning the conviction that prosecutors presented enough evidence for a rational jury to determine that Samaripas was guilty of deadly conduct for firing the weapon into the house.
But they unanimously ruled that prosecutors incorrectly explained the law to jurors when they asked them to enhance the charge for engaging in organized criminal activity. Prosecutors told jurors during jury selection, during arguments and in the written jury charge that the only thing they needed to find to enhance the charge was that Samaripas was in a gang at the time he committed the crime, court records indicate.
In fact, the jury needed to find that he committed the crime while he was participating in gang activity, argued Samaripas' attorney, Rick Wetzel. The appellate judges agreed.
"We find that the trial court erred in misstating the elements of engaging in organized criminal activity and by omitting an essential element of that offense and that Samaripas was egregiously harmed by the misstatement and omission," wrote Chief Justice Tom Gray in his opinion.
Wetzel said he was pleased with the court's ruling and was unsure what would happen next in the case. He is an appeal lawyer and will not handle Samaripas' case moving forward.
"We are essentially back at square one in terms that he is now in the position he was in when the indictment was originally returned," he said.
Assistant District Attorney Danny Smith, who handled the appeal for prosecutors, said his office will review the case and determine how to move on.
"I disagree with the court of appeals' decision, and we are looking at our options," he said. "If we don't appeal, we will try the case again."
If the case is brought back to court and Samaripas is convicted of engaging in organized criminal activity, he could face up to 99 years in prison. If the jury chooses not to enhance the charge of deadly conduct, he could face up to 10 years in prison.
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