Tony Garcia, a/k/a Eddy Alvarez, s/k/a Eddy S. Alvarez v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Haley
UNPUBLISHED
Argued at Fredericksburg, Virginia
TONY GARCIA, A/K/A
EDDY ALVAREZ, S/K/A
EDDY S. ALVAREZ
MEMORANDUM OPINION* BY
v. Record No. 2003-14-4 JUDGE STEPHEN R. McCULLOUGH
MARCH 1, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Brett A. Kassabian, Judge
Lauren Whitley, Senior Assistant Public Defender (Benjamin
Danisek, Senior Assistant Public Defender, on briefs), for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Tony Garcia appeals his conviction for willfully failing to appear, in violation of Code
§ 19.2-128(B). He challenges the admissibility of a bond recognizance form and argues that the
evidence against him was insufficient as a matter of law. For the reasons noted below, we disagree
and affirm.
BACKGROUND
Garcia’s trial for failure to appear took place on June 11, 2014, roughly nine years after the
underlying proceeding. Officer Mario Colorado, formerly of the Herndon Police Department,
testified that Garcia was charged with a felony. Officer Colorado recalled that he came to court
“sometime in July of 2005,” but he could not recall the precise date and he was unsure whether the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
hearing was in the juvenile and domestic relations district court, commonly known as the J & DR
court, or in general district court. Officer Colorado testified that Garcia did not appear at that time.
Claudia Velasquez said that she received a notice about a court date in connection with the
underlying case, and she testified that it was for July of 2005. She recalled that the case was called
at some point in the juvenile court courtroom, but that she did not see the defendant in the
courtroom or in the courthouse that day. Velasquez testified that Garcia called her after the court
date and told her “he had fled the country.”
Following the close of the prosecution’s case, the Commonwealth moved to have two forms
admitted into evidence: an arrest warrant and a bond recognizance form. As relevant here, Garcia
objected to the admission of the bond recognizance form on the ground that “[t]here’s nobody here
to lay . . . the proper foundation for the authentication of that document.” He contended that
authentication failed due to the absence of testimony of “Mr. Garcia ever being provided this
document. There’s been no documentation or foundation laid that Mr. Garcia signed it. There’s
no foundation laid that he has ever seen it or was provided a copy. There’s nothing on this
document that lays a proper foundation for its admissibility into evidence.” And because of
these deficiencies in laying a foundation, counsel argued, the document lacked relevance. The
court overruled the objections, finding the document relevant and properly authenticated as a
judicial record.
The bond recognizance form lists a “hearing date & time” of July 1, 2005 in “Fairfax
J & DR,” and it lists the court’s address and the case number. The form contains a handwritten
signature of “Tony Garcia” and a handwritten date next to it of “5-16-2005.” It also lists an
address for Garcia with a specific street number that matches the address listed on the warrant.
The case number on the recognizance form matches the case number on the arrest warrant, case
number JA336407-01-01. Immediately above the signature, the following language appears:
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“I, THE DEFENDANT, UNDERSTAND THAT: . . . failure to appear is a separate crime.”
(capitalization and bold type in original). Above this the following language also appears on the
form: “I, THE DEFENDANT as a condition of my release from custody, by signing this form,
promise to appear in court on the date and time noted above.” (capitalization and bold type in
original).
The arrest warrant lists the name Tony Garcia and contains a birthdate, an address, and
descriptive information such as his race, sex, height, weight, eye color, and hair color. The
warrant notes that there was a “hearing date/time” of May 16, 2005, the same date that the “Tony
Garcia” signature appears on the bond recognizance form. It contains the notation “p/h 7/1/05”
presumably for a preliminary hearing. The arrest warrant contains the handwritten notation
“7-1-05 D [defendant] failed to appear; issued capias FTA [failure to appear] and bond
forfeiture.”
The court overruled both motions to strike, and the jury convicted Garcia and sentenced
him to serve three years in prison.
ANALYSIS
Garcia assigns four errors. The first two are devoted to attacking the admissibility of the
bond recognizance document. He contends that the document lacked a proper evidentiary
foundation and that it was irrelevant. He further argues that the evidence was insufficient
because it did not establish that he received actual notice of his hearing date and because the
Commonwealth failed to prove that he was absent on the day in question.
I. THE BOND RECOGNIZANCE DOCUMENT WAS RELEVANT AND ADMISSIBLE.
“Generally, when a specific objection is made to evidence or when inquiry is made by the
trial judge concerning the purpose of evidence, the proponent of the evidence has the burden of
establishing its admissibility.” Neal v. Commonwealth, 15 Va. App. 416, 420, 425 S.E.2d 521,
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523 (1992). Rule 2:901 of the Virginia Rules of Evidence provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the thing in question is what its proponent claims.” For
evidence to be relevant, it must have a “logical tendency, however slight, to establish a fact at
issue in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678
(1993). A trial court’s decision to admit evidence is reviewed for abuse of discretion. Juniper v.
Commonwealth, 271 Va. 362, 412, 626 S.E.2d 383, 415 (2006).
Garcia was charged with failing to appear on July 1, 2005. The bond recognizance
document, which bears a signature of “Tony Garcia,” provides that his “hearing date & time”
was July 1, 2005. It bears the same case number, JA336407-01-01, as the case number listed on
the arrest warrant, and it bears the same address. Officer Colorado identified Garcia at trial as
the same man from the 2005 arrest and investigation. Plainly, the bond recognizance form was
relevant to establish that Garcia was made aware that his hearing was July 1, 2005, at the Fairfax
County J & DR court.
On appeal, Garcia does not challenge the authentication of the bond form, but he
complains that “no evidence or testimony was elicited regarding this exhibit at all” and that “this
exhibit was simply offered into evidence by the Commonwealth as a judicial or official record
with no attempt to establish the significance with respect to any fact in issue at trial.” He argues
that
(1) no witness testified that Mr. Garcia had signed the
recognizance form, (2) no witness testified that the signature on the
form was consistent with Mr. Garcia’s or belonged to Mr. Garcia,
(3) no witness testified that they had presented the recognizance
form to Mr. Garcia, (4) no witness testified as to the significance of
these specific forms to this particular case or as to what such bond
recognizance documents were used for generally in any given
criminal case, and (5) no evidence was introduced establishing that
Mr. Garcia was ever shown the original documents or provided
with a copy of the recognizance paperwork.
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In addition, he states that
the Commonwealth had not established that anyone associated
with the case, whether it was Mr. Garcia, the investigating law
enforcement officer, court staff, jail staff, or anyone else who
could possibly have had the paperwork pass through their hands
had actually ever seen, touched it, read it, or had any meaningful
contact with it.
The answer to this litany of objections is, first, the exhibit was indisputably properly
certified and authenticated as a judicial record under Code § 8.01-389. Second, the
Commonwealth explained why it was relevant. Indeed, its relevance is obvious. The court
properly moved the exhibit into evidence, and the parties could argue what weight or
significance the jury should give to it. Garcia points to no authority supporting the proposition
that a relevant and properly authenticated documentary exhibit must be the subject of additional
testimony (as opposed to argument) regarding its significance. Furthermore, no one piece of
evidence need be dispositive. An exhibit should not be excluded simply because its significance
is apparent only in conjunction with other evidence.
Garcia seeks to analogize the facts in this case to Smallwood v. Commonwealth, 36
Va. App. 483, 553 S.E.2d 140 (2001). In that case, the defendant was charged with murdering
his wife. Id. at 485, 553 S.E.2d at 141. To establish a motive for the killing, the Commonwealth
sought to introduce evidence that the victim had filled out a form requesting a change of
beneficiary for her life insurance policy. Id. at 486-87, 553 S.E.2d at 142. The change would
have made the defendant the beneficiary. Id. This Court reasoned that for such evidence to be
relevant, there must be some evidence that the defendant was aware of the life insurance policy;
otherwise, it did not support a motive to murder. Id. at 494, 553 S.E.2d at 145. We rejected the
Commonwealth’s argument that knowledge of the policy could be imputed to the defendant
because he and the victim were married. Id. at 495, 553 S.E.2d at 145-46. In the absence of
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evidence that the defendant probably knew about the policy, we held that the evidence
concerning the policy should have been excluded. Id. at 494-96, 553 S.E.2d at 145-46.
Smallwood is readily distinguishable. In Smallwood, there was no evidence that the
defendant was aware that his wife had a life insurance policy. Here, the form at issue bears the
signature “Tony Garcia” and a court date, time, and location. If Garcia was the one who signed
this form, and he then failed to appear on the appointed date, the jury could conclude from his
absence that the failure to appear was willful. The question then becomes whether this signature
was from the defendant in this case or some impostor. The arrest warrant contains a description
of the defendant. The jury would have had the opportunity to observe him in the courtroom.
Officer Colorado testified that the man in the courtroom, the defendant, was the same man he
investigated and arrested. The arrest warrant, in conjunction with the bond recognizance form,
and the corroborating testimony, permitted the jury to draw an inference that it was the defendant
who signed the form and not some mysterious stranger and, further, that when he failed to appear
on the date listed on the form, his failure to appear was willful. The form was relevant and
admissible. Accordingly, we find no error.
II. THE EVIDENCE WAS SUFFICIENT TO ESTABLISH GARCIA’S WILLFUL FAILURE TO APPEAR.
When the sufficiency of the evidence is challenged on appeal, we “must examine the
evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong
or without evidence to support it.” Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733,
735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40
(2008)). We review the evidence in the light most favorable to the Commonwealth, as the
prevailing party below, and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). This means the trial court’s decision cannot be overturned on appeal
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unless no “rational trier of fact” could have come to the conclusion it did. Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson,
443 U.S. at 319); see also Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278
(2002) (en banc) (“We let the decision stand unless we conclude no rational juror could have
reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003). “An appellate court does
not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009)
(quoting Jackson, 443 U.S. at 318-19). Instead, the only “relevant question is, after reviewing
the evidence in the light most favorable to the prosecution, whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v.
Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added).
This deferential appellate standard “applies not only to the historical facts themselves, but
the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va. App. 561, 566, 673
S.E.2d 904, 907 (2009) (en banc) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663
n.2, 588 S.E.2d 384, 387 n.2 (2003)). “Thus, a factfinder may ‘draw reasonable inferences from
basic facts to ultimate facts,’” Tizon v. Commonwealth, 60 Va. App. 1, 10, 723 S.E.2d 260, 264
(2012) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004)),
“unless doing so would push ‘into the realm of non sequitur,’” id. (quoting Thomas v.
Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)). Furthermore, “[t]here is no
distinction in the law between the weight or value to be given to either direct or circumstantial
evidence.” Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31 (2005). “While
no single piece of evidence may be sufficient, the combined force of many concurrent and
related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a
conclusion.” Id. at 479, 619 S.E.2d at 32.
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We conclude the evidence was sufficient to establish that Garcia willfully failed to
appear. Code § 19.2-128(B) provides in relevant part that “[a]ny person . . . charged with a
felony offense . . . who willfully fails to appear before any court as required shall be guilty of a
Class 6 felony.” “‘Willfully,’ as used in Code § 19.2-128(B), has the customary meaning that
the act must have been done ‘purposely, intentionally, or designedly.’” Hunter v.
Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 200 (1993) (en banc). “When the
[Commonwealth] proves that an accused received timely notice of when and where to appear . . .
and thereafter does not appear on the date or [at the] place specified, the fact finder may infer
that the failure to appear was willful.” Id.
The arrest warrant, the admissibility of which Garcia does not challenge, establishes that
Tony Garcia, an individual with a specific address, date of birth, and meeting a certain
description, in case number JA336407-01-01, had a hearing on May 16, 2005. In turn, the bond
recognizance form establishes that on May 16, 2005, “Tony Garcia,” in case number
JA336407-01-01, was released from custody on a recognizance bond and the form bears the
signature “Tony Garcia.” Officer Colorado identified Garcia at trial as the person he investigated
and arrested. From this evidence, the factfinder could draw a reasonable inference that it was the
defendant, Tony Garcia, and not some unknown impostor, who signed the form. This inference
supports the conclusion that the defendant was on notice that the court hearing was scheduled for
July 1, 2005 at 10:00 a.m. In addition, the arrest warrant also notes that on July 1, 2005, at
10:25 a.m., the defendant failed to appear and that the court issued a capias for failure to appear
and forfeited his bond.
The testimony from Officer Colorado and Claudia Velasquez further corroborated what the
records indicated. Although their testimony was not precise as to the date, it indicated that they
were present for a court hearing in Fairfax in July of 2005 and Garcia did not appear. Velasquez’s
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recollections concerning the time (that the case was called in the morning), and the courtroom (that
it was a juvenile courtroom), operate in conjunction with the date indicated on the judicial records.
Velasquez also testified that Garcia called her after the court date and told her “he had fled the
country.” This flight constitutes further corroboration that Garcia was aware of court proceedings
and chose to flee rather than present himself in court. All of this evidence together allowed the jury
to draw an inference that Garcia was aware of his court date, because it was he who signed the form
informing him of the court date and the need to appear on that date, and that he willfully chose not
to appear on that date.
Garcia argues that the absence of testimony that he signed the form is fatal to the
Commonwealth’s case. “The authenticity of [a] signature on the documents [can] be shown by
direct or circumstantial evidence.” Bain v. Commonwealth, 215 Va. 89, 91, 205 S.E.2d 641, 643
(1974). His handwritten “Tony Garcia” signature does not appear in isolation. The signature,
combined with the information on the arrest warrant, and Officer Colorado’s identification of
Garcia at trial as the man he investigated and arrested in connection with the underlying charged
crime, permits an inference from the factfinder that it was indeed Garcia who signed the form and
not some mysterious interloper.
Garcia argues that there is no evidence that the person who signed the form is fluent in
English and understood the language on the form. However, if the jury could properly conclude
that he was the individual who signed the form, and his trial was being conducted in English,
without the benefit of translation, then the same Tony Garcia who understood the trial proceedings
in English could also understand the simple language on the form.
Garcia also posits that he might have pre-signed the form, and the date and time of the
hearing would have been filled out later. The jury was certainly not required to accept such an
implausible contention. The entire point of the form and the warnings on the form is to compel the
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defendant’s appearance at a court hearing. We ask our juries to rely on their common sense to draw
reasonable inferences from the evidence. The jury was not required to believe that the judiciary
would operate in such an improbably self-defeating manner. In short, this is not a reasonable
hypothesis of innocence.
CONCLUSION
We affirm the judgment below.
Affirmed.
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