Benito Garza v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00682-CR
Benito GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR9168
Honorable Raymond Angelini, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: August 5, 2015
AFFIRMED
Appellant Benito Garza was charged by indictment with felony murder. The jury convicted
Garza and assessed punishment at sixty years’ confinement in the Institutional Division of the
Texas Department of Criminal Justice. On appeal, Garza contends the trial court erred by failing
to provide a unanimity instruction in the court’s charge. Because the unanimity requirement is not
violated by instructing the jury on alternative legal theories of committing the same offense, we
affirm the trial court’s judgment.
04-14-00682-CR
FACTUAL BACKGROUND
On September 21, 2012, San Antonio police officers responded to a home invasion in the
Indian Creek subdivision in San Antonio, Texas. The suspect left the subdivision in a small gray
Kia vehicle. Officer Nathan Zachary was in route to the location when he witnessed a small gray
Kia traveling the opposite direction on Five Palms Drive. Officer Zachary activated the overhead
lights and sirens on his marked vehicle and attempted to stop the Kia. Officer Zachary continued
to follow the Kia through a gas station parking lot and down Old Pearsall Road where the Kia ran
a red light. The officer suspended his chase when the Kia entered the exit ramp of Interstate Loop
410 traveling the wrong direction into oncoming traffic.
The Kia ran head-on into a motorcycle carrying Roxana and Pedro Tenorio. Pedro was
killed on impact and Roxana survived the collision, but lost her leg. The driver of the Kia exited
his vehicle carrying a shotgun and was apprehended in a nearby school bus parking lot. The driver
of the vehicle was identified as Appellant Benito Garza.
Garza was charged by indictment with felony murder, with an enhancement paragraph
alleging a prior felony conviction and a deadly weapon enhancement. The two paragraph
indictment alleged:
PARAGRAPH A
on or about the 21st Day of September, 2012, BENITO GARZA, hereinafter
referred to as defendant, did then and there commit or attempt to commit the felony
offense of EVADING ARREST IN A VEHICLE, and while in the course of or in
furtherance of or in immediate flight from the commission or the attempted
commission of this offense, the defendant did then and there commit or attempt to
commit an act clearly dangerous to human life, to wit: DRIVING A MOTOR
VEHICLE AT A SPEED THAT WAS NOT REASONABLE OR PRUDENT
UNDER THE CIRCUMSTANCES THEN EXISTING, DRIVING A MOTOR
VEHICLE AND FAILING TO APPLY THE BRAKES IN A TIMELY AND
REASONABLE MANNER AND /OR DRIVING THE MOTOR VEHICLE INTO
ONCOMING TRAFFIC, DRIVING A MOTOR VEHICLE AND ATTEMPTING
TO PASS ANOTHER MOTOR VEHICLE WHEN IT WAS NOT REASONABLE
AND PRUDENT UNDER THE CIRCUMSTANCES THEN EXISTING,
DRIVING A MOTOR VEHICLE AND FAILING TO MAINTAIN A SINGLE
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LANE OF TRAFFIC, DRIVING A MOTOR VEHICLE AND FAILING TO
TAKE NECESSARY EVASIVE ACTION TO AVOID COLLIDING WITH
ANOTHER VEHICLE IN/ON WHICH THE COMPLAINANT WAS A DRIVER
OR PASSENGER WHICH CAUSED THE DEATH OF AN INDIVIDUAL,
NAMELY: PEDRO TENORIO;
PARAGRAPH B
on or about the 21st Day of September, 2012, BENITO GARZA, hereinafter
referred to as defendant, did then and there commit or attempt to commit the felony
offense of ROBBERY THREATS, and while in the course of or in furtherance of
or in immediate flight from the commission or the attempted commission of this
offense, the defendant did then and there commit or attempt to commit an act clearly
dangerous to human life, to wit: DRIVING A MOTOR VEHICLE AT A SPEED
THAT WAS NOT REASONABLE OR PRUDENT UNDER THE
CIRCUMSTANCES THEN EXISTING, DRIVING A MOTOR VEHICLE AND
FAILING TO APPLY THE BRAKES IN A TIMELY AND REASONABLE
MANNER AND /OR DRIVING THE MOTOR VEHICLE INTO ONCOMING
TRAFFIC, DRIVING A MOTOR VEHICLE AND ATTEMPTING TO PASS
ANOTHER MOTOR VEHICLE WHEN IT WAS NOT REASONABLE AND
PRUDENT UNDER THE CIRCUMSTANCES THEN EXISTING, DRIVING A
MOTOR VEHICLE AND FAILING TO MAINTAIN A SINGLE LANE OF
TRAFFIC, DRIVING A MOTOR VEHICLE AND FAILING TO TAKE
NECESSARY EVASIVE ACTION TO AVOID COLLIDING WITH ANOTHER
VEHICLE IN/ON WHICH THE COMPLAINANT WAS A DRIVER OR
PASSENGER WHICH CAUSED THE DEATH OF AN INDIVIDUAL,
NAMELY: PEDRO TENORIO;
The trial court’s charge tracked the language of the indictment, providing the two alternative
theories of committing felony murder under section 19.02(b)(3). See TEX. PEN. CODE ANN.
§ 19.02(b)(3).
A person commits an offense if he commits or attempts to commit a felony, other
than manslaughter, and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt, he commits or
attempts to commit an act clearly dangerous to human life that causes the death of
an individual.
Id. During the charge conference, defense counsel’s request for the lesser included offense of
criminally negligent homicide was denied. No other objections were made to the court’s charge.
The jury found Garza guilty of the charged offense and made an affirmative finding of a
deadly weapon. Garza entered a plea of true to the enhancement allegation, and the jury assessed
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punishment at sixty years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice.
On appeal, Garza complains the guilt-innocence charge provided two separate theories as
to how Garza committed the murder of Pedro Tenorio without providing the jury with a unanimity
instruction. Garza contends the trial court’s error allowed the jury not to be unanimous on the
question of how Garza committed felony murder. Garza further contends the error caused
egregious harm.
UNANIMITY INSTRUCTIONS
A. When Jury Charge Must Include Unanimity Instruction
“Under our state constitution, jury unanimity is required in felony cases, and, under our
state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d 738, 745 (Tex.
Crim. App. 2005); see also Leza v. State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011) (“Jury
unanimity is required on the essential elements of the offense but is generally not required on the
alternate modes or means of commission.”). While “the jury must unanimously agree about the
occurrence of a single criminal offense, . . . they need not be unanimous about the specific manner
and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.
App. 2011); see also Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Ngo, 175
S.W.3d at 745–46.
The trial court properly charges a jury with a general verdict form when an “indictment
[does] not allege different offenses but only allege[s] different ways of committing the same
offense.” Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. [Panel Op.] 1982) (op. on
reh’g); accord Zavala v. State, 401 S.W.3d 171, 182 (Tex. App—Houston [14th Dist.] 2011, pet.
ref’d). Importantly, however, alternative methods of committing the same offense are properly
submitted in the disjunctive, in a general verdict form, if the evidence is legally sufficient to
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support a finding of the offense under any of the theories submitted. Kitchens v. State, 823 S.W.2d
256, 258 (Tex. Crim. App. 1991); accord Finster v. State, 152 S.W.3d 215, 218 (Tex. App.—
Dallas 2004, no pet.).
B. White v. State
The Texas Court of Criminal Appeal’s case, White v. State, 208 S.W.3d 467 (Tex. Crim.
App. 2006), is instructive on this issue. In White, the defendant was convicted of felony murder
under section 19.02(b)(3). Id. at 467. The evidence presented at trial supported that White was
driving a stolen car during a high-speed chase when his vehicle collided with another vehicle,
killing the driver. Id. The two paragraph indictment alleged White caused the victim’s death
during the commission of a state-jail felony, either unauthorized use of a motor vehicle or evading
arrest or detention. Id. at 467–68. “The jury charge authorized the jury to convict appellant if it
unanimously found that he caused the victim’s death during the commission of either one of these
two felonies without having to unanimously find which felony appellant was committing.” Id. at
468. Like Garza, White claimed for the first time on appeal that the court’s charge violated his
right to a unanimous jury verdict. Id.
The White court explained the term felony under section 19.02(b)(3):
The term “felony” is clearly an element of Section 19.02(b)(3), thus requiring a jury
to unanimously find that the defendant committed a “felony.” And, in cases like
this, where some of the jurors might believe that the defendant committed felony A
and the rest of the jurors might believe that he committed felony B, the jury has
unanimously found that the defendant committed a “felony.” In addition, the
transitive verb of the portion of Section 19.02(b)(3) at issue here is “commits”
followed by the term “felony.” This indicates that the prohibited conduct about
which a jury must be unanimous is that the defendant commit a “felony,” and not
one specific felony out of a combination of felonies.
Id. (internal citations omitted); accord Contreras v. State, 312 S.W.3d 566, 584 (Tex. Crim. App.
2010); see also Jefferson v. State, 189 S.W.3d 305, 312–14 (Tex. Crim. App. 2006).
We see no distinction in the case presented before us today.
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C. Application
Garza was charged with felony murder in a two-count indictment with “felony A” being
evading arrest and “felony B” being robbery threats. Thus, because Garza’s indictment alleged
two felonies under section 19.02(b)(3), the actual felonies of evading arrest and robbery threats
are not elements on which the jury must be unanimous. See White, 208 S.W.3d at 469; Contreras,
312 S.W.3d at 584. Instead, “[t]hese felonies constitute the manner or means that make up the
‘felony’ element of Section 19.02(b)(3).” White, 208 S.W.3d at 469; see also Jefferson, 189
S.W.3d at 311 n.7 (explaining the unanimity question turns on whether a particular term in the
statute is an element and thus requires unanimity, or whether the term is “an underlying brute fact
or means of committing an element” and does not require juror unanimity). Accordingly, the trial
court did not err in failing to include a unanimity instruction in the court’s charge. Having found
no error, we need not address Garza’s remaining issue on appeal. The trial court’s judgment is
affirmed.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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