State v. Victor Manuel Gallegos

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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THE STATE OF TEXAS, No. 08-14-00271-CR
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Appellant, Appeal from the
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v. County Court at Law No. 7
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VICTOR MANUEL GALLEGOS, of El Paso County, Texas
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Appellee. (TC# 20120C00815)
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OPINION
The State of Texas appeals from an order purporting to grant a directed verdict in favor of
Appellee, Victor Manuel Gallegos, after the court had received the jury’s verdict finding
Gallegos guilty of class-A misdemeanor criminal mischief. We reverse the order granting the
motion for a directed verdict, reform judgment to reflect a conviction of the lesser-included
offense of class-B misdemeanor criminal mischief, and remand the cause to the trial court for a
punishment hearing.
PROCEDURAL AND FACTUAL SUMMARY
Gallegos was charged with five offenses alleged to have occurred on June 26, 2011: (1)
class-A misdemeanor criminal mischief (cause number 20120C00815); (2) burglary of a vehicle
(cause number 20120C00942); (3) burglary of a vehicle (cause number 20120C01669); (4) theft
(cause number 20120C01670); and (5) evading arrest (cause number 20120C00778). The five
cases were tried together before a jury. This appeal pertains to the criminal mischief case (cause
number 20120C00815). The information alleged that Gallegos intentionally or knowingly
damaged and destroyed a vehicle door handle without the effective consent of the owner, Jesus
Gilberto Leos, thereby causing a pecuniary loss in the amount of $500 or more but less than
$1,500. Thus, the information charged Gallegos with class-A misdemeanor criminal mischief.
See TEX.PENAL CODE ANN. § 28.03(b)(3)(A) (West 2011).
The evidence showed that Gallegos and Julio Acosta attempted to enter the Nova Luna
bar through a back door used only by bar personnel and band members. One of the bar’s
security guards, Fernando Chavez, stopped them and told them they had to enter through the
front door and pay the cover charge like everyone else. Chavez watched Gallegos and Acosta
get into their vehicle and drive “crazy” through the parking lot. The vehicle stopped and one
man got out of the car while the other man parked the vehicle. Acosta walked through the
parking lot and checked vehicle doors to see if they were locked. Chavez continued watching
from behind a rock wall, and he saw Acosta take the hubcaps off of a truck while Gallegos acted
as a lookout. Chavez alerted other security personnel at the bar when he saw Gallegos chasing a
parking lot attendant. Deputy Sheriff Juan Munoz was patrolling in the area that evening, and as
he drove by Nova Luna, one of the bar’s security guards flagged him down. The security guard
told him that two men were trying to break into cars in the parking lot. Munoz sometimes
worked off-duty security at the bar, so he was familiar with the area. Munoz drove his patrol
unit into the parking lot and used a spotlight to find the two men. Both men ran away when they
saw him, and after a brief chase, Munoz caught Acosta and took him into custody. With the help
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of the bar’s security personnel, he apprehended Gallegos. After securing both Acosta and
Gallegos, Munoz checked the vehicles in the parking lot and observed that the door to a Ford
truck was open. The truck’s center console was open and a case for eyeglasses was on the
ground next to the truck. Munoz saw that the hubcaps were missing from another truck. Munoz
also noticed that a Mazda had damage to the door handle. He located Gallegos’s gray Dodge
Neon in the parking lot and saw items inside of the car which had been stolen from vehicles in
the bar’s parking lot, including a set of hubcaps.
The owner of the Mazda, Jesus Leos, testified at trial that the handle was not broken
when he went into the bar and it cost him $120 to have it repaired. No other evidence was
offered to prove that the pecuniary loss exceeded $500. After the State rested, Gallegos moved
for a directed verdict with respect to the criminal mischief case on the ground that the State
failed to prove that he had any involvement in any of the offenses committed by Acosta. After
some discussion, the trial court pointed out that the proof showed that the pecuniary loss was
only $120. In response, the State asserted that it was entitled to an instruction on the lesser-
included offense of Class-B misdemeanor criminal mischief.1 The trial court took Gallegos’s
motion for directed verdict under advisement and the defense presented its case.
1
Criminal mischief is a class-B misdemeanor when the pecuniary loss is more than $50 but less than $500.
TEX.PENAL CODE ANN. § 28.03(b)(2) (West 2011). The trial court erred by denying the State’s request for the
lesser-included offense and ruling that the State was required to first amend the information in order to be entitled to
submission of a lesser-included offense. The Court of Criminal Appeals held in Grey v. State, 298 S.W.3d 644, 645-
51 (Tex.Crim.App. 2009) that the State is entitled to submission of a lesser-included offense, upon request, provided
that the offense is actually a lesser-included offense. Thus, the only issue the trial court should have considered is
whether class-B misdemeanor criminal mischief is a lesser-included offense of class-A misdemeanor criminal
mischief. The State was not required to amend the charging instrument in order to be entitled to the lesser-included
offense instruction.
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Gallegos’s co-defendant, Acosta, testified for the defense. Like Gallegos, he was charged
with five offenses, but he agreed to plead guilty to four of the offenses in exchange for dismissal
of one of the cases. Acosta had been placed on probation for fourteen months, and at the time of
trial, he had completed his probation and paid all of his fees. Acosta testified that he was driving
Gallegos’s vehicle that evening because Gallegos was more intoxicated. Acosta admitted that he
broke into cars in the Nova Luna parking lot, but he maintained that Gallegos did not assist him
in committing the offenses because he “didn’t want nothing to do with it.”
Gallegos testified that he was extremely drunk that evening and he tried to convince
Acosta to stop breaking into cars, but Acosta would not listen to him. He denied acting as a
lookout, but he knew that Acosta was putting the stolen property in his car.
After the defense rested and both the State and defense closed, the trial court and the
parties again discussed Gallegos’s motion for directed verdict, but the court did not rule on the
motion. The trial court denied the State’s request for an instruction on the lesser-included class-
B criminal mischief offense, and the court submitted all five cases to the jury, including the
class-A misdemeanor criminal mischief case. The court’s charge included an instruction on the
law of parties. After the jury began its deliberations, Gallegos renewed his motion for directed
verdict, but the court still did not rule on the motion. The jury found Gallegos guilty in all five
cases, including the class-A misdemeanor criminal mischief case. The trial court received the
jury’s verdicts and discharged the jury.
Three weeks later, the trial court conducted the punishment hearing. At the beginning of
the hearing, Gallegos reminded the court that his motion for a directed verdict was still pending.
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The trial court then granted the motion and directed a verdict of acquittal with respect to the
criminal mischief charge and one of the burglary of a vehicle charges (cause number
20120C00942).2 The written judgment of acquittal inaccurately reflects that the court granted
the directed verdict at the end of the State’s case:
Thereupon, also came a jury of six good and lawful persons who had been sworn
and impaneled to try this cause. The information was then read and the
Defendant pleaded not guilty thereto; and the Jury having heard the information
read, the Defendant’s plea of not guilty thereto, the State’s evidence in the case,
and at the end of the State’s case, the Court granted Defendant’s Motion For
Directed Verdict which verdict was duly received and filed.
In the three remaining cases, the trial court sentenced Gallegos to confinement for 365 days in
the El Paso County Jail, probated for six months, and “a fine of $300.00 Probated for $0.00.”3
IMPROPER GRANTING OF A JNOV
In its sole issue, the State contends that once the trial court received the jury’s verdict
finding Gallegos guilty of class-A misdemeanor criminal mischief, the court had no authority to
grant Gallegos’s motion for directed verdict and enter a judgment reflecting a different verdict
than that of the jury. Gallegos responds that the trial court did not abuse its discretion by
effectively granting a motion for new trial due to insufficient evidence.
The trial court purportedly granted Gallegos’s motion for a directed verdict during the
punishment hearing held three weeks after the jury had returned its verdict of guilty and the court
had received that verdict. A “directed verdict” is commonly defined as the action taken by a trial
2
The judgment of acquittal entered in cause number 20120C00942 is the subject of a separate State’s appeal, State
of Texas v. Victor Manuel Gallegos, cause number 08-14-00272-CR.
3
Gallegos filed notice of appeal in those three cases (appellate cause numbers 08-14-00274-CR, 08-14-00275-CR,
and 08-14-00276-CR).
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judge in a jury trial to decide the issues in the case without allowing them to be submitted to the
jury because, as a matter of law, the party with the burden of proof has failed to make a prima
facie case for jury consideration. State v. Lewallen, 927 S.W.2d 737, 739 n.2 (Tex.App.--Fort
Worth 1996, no pet.). Thus, it is a ruling which a court makes before the case is submitted to the
jury, or at the very least, before the court receives the jury’s verdict. The trial court’s action in
entering a judgment of acquittal after it received the jury’s guilty verdict is the functional
equivalent of a JNOV.
It is well established that a trial court does not have authority to grant a JNOV in a
criminal case. State v. Savage, 933 S.W.2d 497, 499 (Tex.Crim.App. 1996). When a case is
tried by a jury, Article 42.01 requires that the judgment of the trial court must reflect “[t]he
verdict or verdicts of the jury[.]” TEX.CODE CRIM. PROC. ANN. art. 42.01, § 1(7) (West Supp.
2015); see Savage, 933 S.W.2d at 499. For this reason, the Court of Criminal Appeals held in
Savage that a trial court does not have the authority to grant a different judgment—a judgment
non obstante veredicto—than that rendered by the jury. Id. Texas courts have held that the trial
court may not receive the jury’s verdict and then enter a different judgment than the one called
for by the jury’s verdict. Combes v. State, 286 S.W.2d 949, 950 (Tex.Crim.App. 1956); Dunn v.
State, 176 S.W.3d 880, 885 (Tex.App.--Fort Worth 2005, no pet.); Chafin v. State, 95 S.W.3d
549, 555 (Tex.App.--Austin 2002, no pet.). Once the jury has returned a guilty verdict and that
verdict is read aloud in open court, the trial court is not authorized to then grant a motion for
directed verdict and enter a judgment of acquittal. See Savage, 933 S.W.2d at 499; Dunn, 176
S.W.3d at 885; Chafin, 95 S.W.3d at 555. We conclude that the trial court’s action in entering a
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different verdict than the one returned by the jury was unauthorized and improper.
A trial court does have authority, however, to grant a criminal defendant’s motion for
new trial on the ground that the evidence is insufficient. See Savage, 933 S.W.2d at 499;
TEX.R.APP.P. 21.3(h)(requiring new trial when the verdict is contrary to the law and the
evidence). This power is the functional equivalent of granting a JNOV in a civil case. Id. Even
though Gallegos did not file a motion for new trial, the trial court’s order granting the directed
verdict and the judgment of acquittal have the same effect as a trial court granting a new trial for
legally insufficient evidence. See Savage, 933 S.W.2d at 499; State v. McClelland, No. 11-05-
00191-CR, 2006 WL 2692875, *1 (Tex.App.--Eastland September 21, 2006, no pet.) (not
designated for publication). When an order is the functional equivalent of an order granting a
motion for new trial, the reviewing court should look beyond the label and treat the ruling as an
order granting a new trial. See Savage, 933 S.W.2d at 499; State v. Evans, 843 S.W.2d 576, 577
(Tex.Crim.App. 1992). Accordingly, we will review the order improperly granting the motion
for directed verdict as though the trial court had granted a motion for new trial on the ground of
insufficient evidence.
Standard of Review
A trial court’s order granting a new trial is reviewed for an abuse of discretion. State v.
Zalman, 400 S.W.3d 590, 593 (Tex.Crim.App. 2013); State v. Provost, 205 S.W.3d 561, 566
(Tex.App.--Houston [14th Dist.] 2006, no pet.). When deciding a motion for new trial
challenging the legal sufficiency of the evidence, the trial court applies the appellate legal
sufficiency standard of review. Provost, 205 S.W.3d at 567. Thus, the trial court is required to
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view the evidence in the light most favorable to the verdict and determine whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Id. The trial court does not sit as a thirteenth juror and it is not permitted to substitute its view of
the evidence for that of the jury. Id. If the evidence is sufficient to meet the legal sufficiency
standard, a trial court abuses its discretion by granting a motion for new trial. Id.
Sufficiency of the Evidence
When viewed in the light most favorable to the jury’s guilty verdict, the evidence
establishes that Acosta attempted to break into vehicles in the Nova Luna parking lot while
Gallegos acted as a lookout. The security guard, Chavez, watched Acosta trying to open vehicle
doors, and he heard Gallegos alert Acosta by pretending to cough whenever anyone was
approaching the area. Both Acosta and Gallegos admitted that Acosta was breaking into cars in
the parking lot. Even though Gallegos denied doing anything to assist Acosta in the commission
of these offenses, it was the jury’s responsibility to determine the credibility of the witnesses and
resolve the conflicts in the evidence. Jesus Leos, the owner of the damaged vehicle, testified that
his door handle was not damaged when he went into the bar that evening, but it was damaged
when he came out of the bar. Leos paid $120 to have the door handle repaired. The evidence is
legally sufficient to permit a rational trier of fact to find beyond a reasonable doubt that
Gallegos, acting with intent to promote or assist the commission of the offense, aided or
attempted to aid Acosta to commit the offense of criminal mischief. The State concedes that the
pecuniary loss to the owner was only $120, and therefore, the evidence is insufficient to prove
that the pecuniary loss fell within the class-A misdemeanor range.
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Criminal mischief causing $120 in damage is a class-B misdemeanor. See TEX.PENAL
CODE ANN. § 28.03(b)(2). Class-B misdemeanor criminal mischief is a lesser-included offense
of class-A misdemeanor criminal mischief. See Merwin v. State, No. 05-05-01482-CR, 2006
WL 1738317, at *1 (Tex.App.--Dallas June 27, 2006, pet. ref’d) (not designated for publication)
(holding that class-C criminal mischief is a lesser-included offense of class-B criminal mischief).
The trial court refused the State’s request for an instruction on the lesser-included offense of
class-B misdemeanor criminal mischief, and the jury returned a verdict finding Gallegos guilty
of class-A misdemeanor criminal mischief. By granting Gallegos’s renewed request for a
“directed verdict” at the punishment phase of trial and entering a judgment of acquittal, the trial
court failed to consider the evidence supporting Gallegos’s guilt of class-B misdemeanor
criminal mischief.
The Court of Criminal Appeals explained in Thornton v. State that “[a]ny time the State
carries its burden with respect to this lesser offense, and the jury, by its verdict, has necessarily
found every constituent element of that lesser offense, the appellant would enjoy an ‘unjust’
windfall from an outright acquittal.” Thornton v. State, 425 S.W.3d 289, 298 (Tex.Crim.App.
2014). When a reviewing court finds the evidence legally insufficient to prove the greater-
inclusive offense, the court is required to reform the judgment to reflect a conviction for a lesser-
included offense if: (1) in the course of convicting the defendant for the greater offense, the jury
must necessarily have found all of the elements necessary to convict the defendant for the lesser-
included offense; and (2) there is legally sufficient evidence to support a conviction for that
lesser-included offense. Thornton, 425 S.W.3d at 300. Reformation of the judgment to reflect a
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conviction for the lesser-included offense is required to avoid the “unjust” result of an outright
acquittal. Id.
By finding Gallegos guilty of class-A misdemeanor criminal mischief, the jury
necessarily found all of the elements necessary to convict him of class-B misdemeanor criminal
mischief. Further, the evidence is legally sufficient to support a conviction of class-B
misdemeanor criminal mischief. Consequently, we hold that the trial court abused its discretion
by improperly granting Gallegos’s motion for directed verdict and entering a judgment of
acquittal after the jury returned a guilty verdict. Issue One is sustained. We reverse the
judgment of acquittal, reform the judgment to reflect a conviction for the lesser-included offense
of class-B misdemeanor criminal mischief, and remand the cause to the trial court for a
punishment hearing. See TEX.CODE CRIM.PROC.ANN. art. 44.29(b)(West Supp. 2015).
STEVEN L. HUGHES, Justice
December 9, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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