Benito Garza v. State ( 2015 )

ACCEPTED
04-14-00682-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/30/2015 4:19:58 PM
KEITH HOTTLE
CLERK
NO. 04-14-00682-CR
IN THE COURT OF APPEALS FOR THE FILED IN
4th COURT OF APPEALS
FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
SAN ANTONIO, TEXAS 3/30/2015 4:19:58 PM
______________________________ KEITH E. HOTTLE
Clerk
BENITO GARZA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________
ON APPEAL FROM THE 187th DISTRICT COURT
OF BEXAR COUNTY, TEXAS
CAUSE NO. 2013-CR-9168
______________________________
BRIEF FOR THE STATE
______________________________
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
LAURA E. DURBIN
Assistant Criminal District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva Street
San Antonio, Texas 78205
Phone: (210) 335-2411 Fax: (210) 335-2436
State Bar No. 24068556
Attorneys for the State of Texas
ORAL ARGUMENT WAIVED
Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.2(a), the appellee supplements the appellant’s
list of parties as follows:
APPELLATE STATE’S Laura E. Durbin
ATTORNEY Assistant Criminal District Attorney
Paul Elizondo Tower
101 W. Nueva Street
San Antonio, Texas 78205
State Bar No. 24068556
laura.durbin@bexar.org
(210) 335-2411
ii
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Authorities ................................................................................................. iv
Statement Regarding Oral Argument ........................................................................1
Statement of the Case.................................................................................................1
Statement of the Facts ................................................................................................1
Appellant’s First Point of Error: ...............................................................................3
The Appellant was egregiously harmed when the
trial court failed to give a unanimity instruction to
the jury. ............................................................................................................3
State’s Response to Appellant’s First Point of Error: ...............................................3
The jury charge contained a proper unanimity
instruction because the jury did not need to be
unanimous as to the manner and means in
Appellant committed the felony murder. .........................................................3
Argument....................................................................................................................4
Appellant’s Second Point of Error:............................................................................7
The erroneous jury charge egregiously harmed
Garza. ..............................................................................................................7
State’s Response to Appellant’s Second Point of Error: ...........................................7
The jury charge was not erroneous and therefore
Garza was not harmed. ....................................................................................7
Prayer for Relief .........................................................................................................7
Certificate of Compliance ..........................................................................................8
Certificate of Service .................................................................................................8
iii
Table of Authorities
Statutes
Tex. Penal Code Ann. 19.02(b)(3) (Vernon Supp. 2014) ..........................................6
Rules
Tex. R. App. P. 9.4 (West 2013) ................................................................................8
Tex. R. App. P. 38.2(a) ............................................................................................. ii
Cases
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) ...............................................................4
Arrington v. State,
No. PD-1448-13, 2015 Tex. Crim. App. LEXIS 15 (Tex. Crim. App. Jan. 15,
2015) .......................................................................................................................6
Cosio v. State,
353 S.W3d 766 (Tex. Crim. App. 2011) ................................................................4
Holford v. State,
177 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ......................5
Kitchens v. State,
823 S.W.2d 256 (Tex. Crim. App. 1991) ...............................................................6
Magaña v. State,
351 S.W.3d 501(Tex. App.―San Antonio 2011, no pet.) .....................................4
Sanchez v. State,
182 S.W.3d 34 (Tex. App.—San Antonio 2005, pet. granted) ..............................4
White v. State,
208 S.W.3d 467 (Tex. Crim. App. 2006) ...............................................................6
iv
TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS:
Now comes, Nicholas LaHood, Criminal District Attorney of Bexar County,
Texas, and files this brief for the State.
Statement Regarding Oral Argument
The State waives oral argument. However, if the Court is inclined to grant
argument, the State is prepared to present argument and would respectfully ask the
Court for an opportunity to respond.
Statement of the Case
On October 21, 2013, Appellant, Benito Garza (hereinafter “Garza”) was
indicted by a Bexar County grand jury for one count of felony murder. (CR 5-6).
After refusing a peal offer, Garza pled not guilty and proceeded to a jury trial in the
187th District Court on September 22, 2014. (2 RR 1, 3 RR 7, 11). On September
25, 2014, the jury returned a guilty verdict. (5 RR 36). At the end of the
punishment phase, the jury sentenced Garza to 60 years incarceration in the Texas
Department of Corrections, Institutional Division. (CR 53-54, 7 RR 15).
The trial court certified Garza’s right to appeal. (CR 67-68, 7 RR 15).
Garza filed a notice of appeal and this appeal follows.
Statement of the Facts
The facts of the case are not pertinent to the issue on appeal. However the
State will give a brief summation of the main facts.
1
On September 21, 2012, Garza entered the home of Michel Jay Flores in the
Indian Creek subdivision on the southwest side of San Antonio. (3 RR 91-92)
Flores was in the bathroom at the time, when he heard his brother scream out.
Flores exited the bathroom and found his brother laying on the floor and learned he
had been robbed. (3 RR 92). Garza testified that he had gone to the home to
“retrieve” property. (4 RR 152). Flores tried to chase down Garza on foot and
then in a vehicle, but was not successful. Neighbors called the police after seeing a
man with a gun in a silver sedan. (3 RR 26).
Police responded and quickly targeted a silver Hyundai exiting the
subdivision. (3 RR 51). Clearly marked patrol cars with overhead lights pursued
Garza down Old Pearsall Road towards Loop 410. (3 RR 71). Garza never
attempted to stop and cut through a gas station parking lot and then entered Loop
410 traveling in the wrong direction at 7 P.M. that evening. (3 RR 71). The
officers ceased their immediate chase to pursue Garza in the correct flow of traffic.
(3 RR 74).
Meanwhile, Roxana Tenorio and her husband, Pedro Tenorio, were traveling
from Corpus Christi, Texas to a motorcycle rally in Bandera, Texas. (3 RR 18).
Garza collided with the couple head on. (4 RR 22-25). Pedro Tenorio was killed
instantly from multiple traumatic injuries, including a severed spinal cord and arm.
(4 RR 109). Roxana Tenorio lost her leg, but survived the collision. (3 RR 19).
2
Garza’s car collided not only with the motorcycle, but Nicole Valadez-
Moreno’s vehicle as well. (4 RR 22, 32). Garza fled the scene of foot with a shot
gun and was apprehended in a nearby school bus parking lot. (3 RR 52, 4 RR 58).
Garza testified that he did not remember the accident.
Garza was indicted with felony murder. (CR 5). The indictment alleged that
Garza committed robbery and evaded in a vehicle and while in commission or
flight of those offenses committed an act clearly dangerous to human life which
caused the death of Pedro Tenorio. (CR 5). At trial, the jury was submitted both
the robbery and evading with a vehicle as two alternative theories of the felony
murder charge. (CR 49, 50). The charge included a general instruction that the
verdict must be unanimous. (CR 53).
Appellant’s First Point of Error:
The Appellant was egregiously harmed when the trial court failed to give a
unanimity instruction to the jury.
State’s Response to Appellant’s First Point of Error:
The jury charge contained a proper unanimity instruction because the jury
did not need to be unanimous as to the manner and means in Appellant
committed the felony murder.
Summary of the Argument
There was no error in the jury charge. Garza was charged with felony
murder in the course of either committed a robbery or evading in a vehicle. Two
alternative theories of committing felony murder were submitted to the jury and
3
the jury properly returned a general verdict of guilt. The jury was not required to
be unanimous as to the theory, or manner and means, of committing felony murder
as long as the evidence supported either. The evidence supported both alternative
theories. The jury charge contained no error and therefore Garza was not harmed.
Argument
In analyzing a jury charge, the court must first decide whether error exists.
Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985). If error exists,
then it must be analyzed for harm. Id. If the appellant objected to the charge
before it was given to the jury, the court will only reverse the trial court’s judgment
if “some harm” resulted. Sanchez v. State, 182 S.W.3d 34, 61 (Tex. App.—San
Antonio 2005, pet. granted) (citing Almanza, 686 S.W.2d at 171). However, if an
appellant did not object to the charge, the court must find egregious harm to
reserve the trial court’s judgment. Id.
Texas law requires that a jury reach a unanimous verdict about the specific
crime that the defendant committed. Cosio v. State, 353 S.W3d 766, 771 (Tex.
Crim. App. 2011). A jury must unanimously convict a defendant of a single,
specific offense, but it need not unanimously agree as to any particular theory of
how the defendant committed that offense. Magaña v. State, 351 S.W.3d 501, 504
(Tex. App.―San Antonio 2011, no pet.). “In reviewing a disjunctive jury charge,
we first determine whether the separate application paragraphs contain different
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criminal acts or whether they merely instruct as to different means of committing
the single offense.” Id., quoting Holford v. State, 177 S.W.3d 454, 461 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d). In Magaña, the appellant had been
convicted of felony murder and argued the trial court committed harmful error by
allowing for a less than unanimous jury verdict. Magaña, 351 S.W.3d at 503.
Similar to the facts here, the appellant had committed two separate felonies in the
commission of the offense of felony murder. Id. The court rejected the appellant’s
argument and found that the jury must be unanimous to the single offense charged,
but it need not be unanimous as to the particular theory of how the defendant
committed the offense. Id. at 505.
Here, the jury charge contained a general instruction that the jurors must be
unanimous in their verdict. (CR 53). Garza’s trial counsel did not object to the
jury charge, however, Garza now argues the jury charge allowed for a non-
unanimous verdict. Specifically, the jury charge allowed for conviction by a less
than unanimous verdict because some jurors could have convicted him of murder
based on the robbery and others could have convicted him of murder based on the
evading arrest with a vehicle. However, if an indictment alleges multiple felonies
as alternative basis for felony murder liability, the felonies are not elements
because the felonies constitute the manner and means that make up the felony
element of felony murder. White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App.
5
2006); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Tex. Penal
Code Ann. 19.02(b)(3) (Vernon Supp. 2014). Moreover, “[i]t is appropriate where
the alternate theories of committing the same offense are submitted to the jury in
the disjunctive for the jury to return a general verdict of the evidence is sufficient
to support a finding under any theory submitted.” Kitchens, 823 S.W.2d at 258.
Therefore, the jury need not be unanimous as to which felony constitutes the
manner and means as long as there is sufficient evidence to support the underlying
felony.
The State submitted two alternatives theories of felony murder: (1) robbery
and (2) evading with a vehicle. The evidence supported either theory. At trial, it
was shown Garza entered Michael Jay Flores’ home. Flores’ brother said he had
been robbed and Garza himself admitted that he entered the home, armed, to
retrieve property. Multiple witnesses then saw Garza flee in his car. Garza evaded
the police attempting to conduct a stop and he entered the highway traveling the
opposite direction at a high rate of speed. He then collided with and killed Pedro
Tenorio. Since the evidence supported either theory of robbery or evading with a
vehicle the charge was not erroneous and the jury returned a valid verdict.
Garza relies on a recent Court of Criminal Appeals case to advance his
argument. See Arrington v. State, No. PD-1448-13, 2015 Tex. Crim. App. LEXIS
15 (Tex. Crim. App. Jan. 15, 2015). However, Arrington considered the proper
6
harm analysis the court must conduct when there is an unobjected-to erroneous
jury charge. Id. Arrington does not apply to Garza’s analysis because there is no
error in the jury charge.
Appellant’s Second Point of Error:
The erroneous jury charge egregiously harmed Garza.
State’s Response to Appellant’s Second Point of Error:
The jury charge was not erroneous and therefore Garza was not harmed.
As discussed in the previous point of error, the jury charge had no error and
the State will forgo a harm analysis.
Prayer for Relief
The State prays that this Court will affirm the judgment of the trial court.
Respectfully submitted,
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
/s/ Laura E. Durbin
______________________________
LAURA E. DURBIN
Assistant Criminal District Attorney
Bexar County, Texas
101 West Nueva, 7th Floor
San Antonio, Texas 78204
(210) 335-2411
State Bar No. 24068556
(On Appeal)
Attorneys for the State
7
Certificate of Compliance
I certify, in accordance with newly revised Rule 9.4 of the Texas Rules of
Appellate Procedure that this document contains 1,463 words.
/s/ Laura E. Durbin
_____________________________
LAURA E. DURBIN
Certificate of Service
I certify that a copy of the foregoing brief was sent to Guillermo Lara,
Attorney for Appellant, at alexjoss@yahoo.com and cindy@campionlawfirm.com
by electronic service on the 30th day of March, 2015.
/s/ Laura E. Durbin
___________________________
LAURA E. DURBIN
8