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Garcia v. State

Court of Appeals of Texas, Ninth District, Beaumont

June 26, 2019

ORLANDO GARCIA, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on October 2, 2018

          On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 15-22133

          Before McKeithen, C.J., Kreger, and Horton, JJ.

          OPINION

          CHARLES KREGER, JUSTICE.

         A Jefferson County grand jury indicted Orlando Garcia for the offense of murder. The indictment alleged that Garcia intentionally and knowingly caused the death of Rhydan Bolton by shooting him with a firearm on or about December 7, 2009.[1] See Tex. Penal Code Ann. § 19.02(b)(1) (West 2019).[2] The State also alleged an enhancement, as Garcia had a prior felony conviction for possession of a prohibited weapon. A jury convicted Garcia for the offense of murder. See id. Garcia pled "true" to the enhancement paragraph during punishment. The jury assessed punishment, and the trial judge sentenced Garcia to seventy years' confinement in the Institutional Division of the Texas Department of Corrections. Garcia appeals his conviction and presents eight issues for our review.

         In issues one through four, Garcia challenges the sufficiency of the evidence and asserts the evidence was not legally sufficient to sustain the conviction because: (1) the evidence was insufficient to prove Garcia caused the death of the complainant; (2) the evidence was insufficient to prove the alleged offense was committed intentionally; (3) the evidence was insufficient to prove the alleged offense was committed knowingly; and (4) the trial court erred in denying Garcia's motion for instructed verdict of not guilty for insufficient evidence. In issues five through seven, Garcia complains the trial court abused its discretion by allowing the State to present hearsay statements allegedly made by Kristopher Garcia through witnesses, (5) Natalie Castillo, (6) Kristina Sanchez, and (7) Diego Torres, respectively. Finally, in his eighth issue, Garcia contends the jury charge was so misleading as to cause egregious harm to Garcia as a matter of law, as it failed to properly charge the jury about accomplice testimony. We affirm the trial court's judgment.

         I. Background

         After midnight on Monday, January 19, 2015, college students Rhydan Bolton and Kerrick Madison drove into a convenience store parking lot on the corner of Florida and Highland Streets in Beaumont. Kerrick drove Bolton's blue Scion that evening, and Bolton rode in the passenger's seat. Video evidence played for the jury showed two men in dark clothing approached the car and fired at least eighteen shots from semi-automatic weapons into Bolton's vehicle, killing Bolton. Madison escaped injury in the incident.

         II. The State's Theory and Evidence A. The State's Theory

         From the trial's outset, the State tried this case under a party theory of liability. References throughout the record were to Garcia and his cousin, Kristopher Garcia, acting in concert.[3], [4] The State contended Garcia and Kristopher were angry about being shorted in a drug deal and sought revenge against a single individual. Bolton was an innocent victim, who Garcia and Kristopher mistakenly believed was the person who shorted them in the drug transaction.

         B. Tiger Turner's Testimony[5]

         Tiger was fourteen years old when this incident occurred. He testified that around 4:30 or 5:00 p.m. on January 18, 2015, he left a friend's house to walk to a store and purchase snacks. He said that as he walked home from the store by himself, he heard a scream and someone say something about a drive-by. Then, people he did not know suddenly hopped out of a white SUV or truck and began chasing him. Tiger estimated two or three Hispanic people chased him, and while a man ultimately caught him, girls chased him as well. The abductors placed him on the floorboard of the backseat of the truck and covered his head with a bag.

         Tiger testified that they drove him around to an unknown location. Eventually, they ended up at a garage or warehouse, which he identified from the sound of the door opening and closing. At the warehouse, five or six people were present while they beat Tiger and asked him questions. Tiger testified they asked about his "homeboys" and specifically, an individual named "Anthony." Tiger told them he had a classmate in the eighth grade named Anthony, but his abductors were not satisfied. Tiger did not know the person they were seeking.

         After questioning him, his abductors placed him on the backseat floorboard again and covered him up. His abductors then dropped him off on the street by his house at around 2:00 a.m. After Tiger's mother saw how he was beaten, she took him to the emergency room the next morning. Tiger spoke with the police and gave them a statement.

         C. Natalie Castillo's Testimony

         Natalie Castillo testified that in 2015, she dated and lived with Garcia's cousin, Kristopher, in a house on Victoria Street in Beaumont. Natalie testified that on the evening of January 18, 2015, she and Kristopher barbecued at their house and several people attended, including Kristina Sanchez and Juana. Natalie said that around 10 p.m., Kristopher said he was going to "Lou Lou's" house to meet Garcia. "Lou Lou" is Garcia's sister, Marylou, who lived on Washington Street.[6]

         Natalie testified that Kristopher and Garcia sold marijuana. According to Natalie, Kristopher met Garcia at Marylou's house on that day to count money from a drug deal. Natalie said that she and everyone else stayed at the barbecue while Kristopher met with Garcia. Natalie estimated Kristopher's meeting with Garcia lasted only about fifteen minutes, and when Kristopher returned to the barbecue, he was angry because someone gave them fake money for the drugs. Natalie testified that Garcia and Kristopher thought an individual named "Dulla," who she eventually learned was Anthony Green, had given them the fake money. Kristopher told Natalie that they would worry about it later, which Natalie understood to mean that he would confront Anthony about the fake money.

         Natalie testified that she, Kristopher's brother R.J., Juana, Kristina, and Kristopher eventually left the barbecue in a white Ford pickup to load tortillas at a warehouse in Beaumont rented by Garcia and his mother. Natalie identified a photograph of the white Ford pickup, and told the jury that Kristopher often drove the truck. Natalie explained that while Garcia owned the truck, Kristopher often used the truck to load tortillas on Sundays and Tuesdays.

         Natalie testified that on the way to the warehouse, Kristopher stopped when they saw "three black males" walking on the side of the road. Everyone but Natalie chased the three boys. Natalie testified they caught one of the boys and put him on the backseat floorboard, placed a blanket over his head, and asked him questions about Anthony. Natalie explained that the boy acted like he did not know anything.

         Natalie told the jury they then picked up Garcia at a corner store and went to the warehouse where they planned to load tortillas. Natalie testified that Garcia and Kristopher brought the boy they picked up into a room at the warehouse. Natalie, Kristina, and Juana stood in the hallway of the warehouse. Natalie told the jury she heard the boy crying, screaming, and asking for help. Natalie estimated the boy was thirteen or fourteen, and she saw Garcia hit the boy while he was in the truck.

         According to Natalie, the boy mentioned the name "Diego" while being questioned. The group left the warehouse with the boy and met Diego at a corner store. Garcia and Kristopher asked Diego questions about Anthony. Afterwards, the group, including Diego and the boy, returned to Marylou's home. Natalie told the jury that while Diego voluntarily met the group at the corner store, Kristopher and Garcia placed Diego in the truck and covered him with a blanket, along with the boy. Natalie testified that when they arrived at Marylou's around 8:00 or 9:00 p.m., Kristopher and Garcia took Diego and the boy into a room in the rear of the house while she, Juana, and Kristina sat in the living room. Natalie said she heard yelling and belts hitting someone, but she could not hear what anyone said. Natalie observed later that Diego and the boy had been beaten.

         Natalie told the jury that she, R.J., and Juana left Marylou's house around 11:00 p.m. or 12:00 a.m. to finish loading tortillas at the warehouse. Natalie testified that she was one hundred percent certain Garcia was at Marylou's house that evening. She also explained to the jury that she saw Garcia holding a handgun before she left Marylou's home to go to the warehouse.

         According to Natalie, she "[was] back at the warehouse somehow at 1:30 a.m." on the morning of January 19, 2015. Around this time, Kristopher, Garcia, and Garcia's brother-in-law D.J. returned to the warehouse.[7] Natalie stated they seemed nervous. She described them as being "jumpy" and "hype[d]." According to Natalie, Kristopher said "[w]e got him." Natalie explained she understood that to mean that Kristopher and Garcia killed Anthony. At some point, R.J. brought Natalie home, but she was unsure of the time. The next morning, Natalie learned someone had been shot, and she thought Kristopher and Garcia were responsible for the shooting.

         Eventually, Natalie went to the police and gave a statement. According to Natalie, Garcia called her from jail and wanted to know why she talked to police. Natalie took his demand for an explanation as a threat. Garcia's mother also called her to ask her why she was cooperating with the police.

         D. Kristina Sanchez's Testimony[8]

         Kristina Sanchez testified that on MLK weekend of 2015, she attended a barbecue with Juana, Kristopher, and Natalie at Kristopher's house. While Kristina acknowledged that she and Garcia had a romantic relationship at one time, she denied she was Garcia's girlfriend. When she arrived at Kristopher's house to help prepare for the barbecue, people were already drinking alcohol and smoking marijuana. Kristina confirmed she also smoked marijuana while at the barbecue. Garcia was not there when Kristina arrived. She recalled that after Kristopher received a phone call, he left the house to meet with Garcia. Kristina testified that Kristopher was not gone long before he returned.

         Later that same evening, Kristina, Juana, Kristopher, Natalie, and R.J. left in Garcia's white Ford pickup to load tortillas for Garcia's mom. Kristina estimated they left an hour or two after Kristopher returned from his meeting with Garcia. Kristina testified that on the way to the warehouse, they stopped the truck when they saw three guys walking along the road. Kristina explained that at the time, she did not know why they stopped. Later, Kristina learned they stopped because Kristopher and Garcia thought they were given fake money for drugs and they were searching for the man who gave them the fake money. Kristina described the guys on the road as black males. They all exited the truck and chased the guys. Kristina testified that they caught one of the teenagers. R.J. put him in the backseat of the pickup truck and covered him with a blanket.

         Kristina testified that she, Juana, Natalie, Kristopher, and R.J. drove the teenager to the warehouse. On the way, they picked up Garcia. After they arrived at the warehouse, Kristopher and Garcia asked the teenager questions. Kristina was in the room while Kristopher and Garcia questioned the teenager. Kristina testified Garcia was on the phone with someone while he asked questions of the teenager. Kristina explained that things got physical, and they were asking questions trying to locate a person called "Dulla." Kristina testified she did not know who Dulla was, but later learned his name was Anthony. Kristina confirmed that she saw Kristopher and Garcia hit the teenager, who cried and seemed scared.

         After leaving the warehouse, the group met Diego at a gas station. Kristina said that once Diego was in the truck, they drove around to different houses Diego pointed out, looking for "Dulla" or Anthony. When they did not find him, the group returned to Marylou's house. Upon arriving at Marylou's home, everyone went inside. Kristina testified that she, Juana, Natalie, and Marylou stayed in the living room while the guys took Diego into the back room. Kristina testified she heard "banging" as if someone was being beaten in the back room. Eventually, R.J. came inside with "the kid" and took him to the back room. After that, she heard more banging.

         Kristina testified that Garcia, Kristopher, Diego, "the kid," and D.J., left Marylou's house in a green Avalanche, which Kristina said was owned by Garcia's brother in law, D.J. Kristina testified the group left expecting to meet Anthony at a gas station. According to Kristina, Garcia and Kristopher returned to Marylou's house in the early morning hours of January 19, 2015. Kristina said that when the group returned, Garcia fell asleep on the couch, while Kristopher was talkative, active, and jumpy. Kristina testified that Kristopher told them "they had shot somebody's car up, but . . . he just seen someone ducking down, that he don't (sic) know if they'd been hit or not." Kristina testified that Kristopher said the shooting occurred at a store.

         Kristina learned from Facebook that someone had been shot at a store. She wondered if it was the shooting that Kristopher had described. From her recollection of the events of that evening, Kristina believed that Kristopher and Garcia shot somebody. Kristina stated that Kristopher and Garcia owned guns, and she believed Kristopher had a gun the night the shooting occurred, because she saw him with his hands in the waistband of his pants.

         Kristina gave a sworn statement to the police. She also gave a sworn statement to defense counsel while Garcia's mother was with her. Kristina explained she told defense counsel that Garcia was not with the group that evening because she wanted to protect him, and admitted she was not telling the truth when she said Garcia was not there. She testified that the statement she gave to the police was truthful.

         During cross-examination, Kristina admitted telling defense counsel that she was really screwed up from smoking marijuana and drinking alcohol that night, and she really did not know what happened. Kristina denied to defense counsel that Garcia ever hit the teenager in the white truck. She denied that Natalie went back to the warehouse after Kristopher and Garcia left. Kristina said that after Garcia returned to Marylou's home, he spent the rest of the night there. Kristina said later that morning, around 6:00 a.m., they took everyone who was still at Marylou's home back to their own homes.

         E. Diego Torres's Testimony

         Diego Torres testified and admitted he gave police several different statements about the events of the evening in question.[9] He also admitted to lying in his first three statements to the police. He recounted various versions of the story he first gave to law enforcement. That said, Diego maintained that he told the truth in his fourth statement to the police.

         Diego testified he was at his cousin's house playing video games when he received a phone call informing him that Garcia was looking for him and wanted to meet him at a gas station nearby. Diego testified that his cousin dropped him off at the gas station to meet Garcia. Diego told the jury that he got into a white Ford pickup that Kristopher was driving. Juana was in the front seat with a girl he did not know, and Garcia and Kristina were in the backseat, together with a "little kid" covered with a blanket. When they removed the blanket, so he could see the individual's face, Diego told the group that he did not know the young teenager. Diego testified that the teenager had bruises on his face.

         Diego testified he knew Anthony Green, who went by the name "Dulla." Diego said while the group drove him around, they asked if he knew where Anthony lived. Diego told them he did not know. Diego said that he understood Anthony owed Kristopher and Garcia money for drugs.

         Diego testified that the two men took him to a house on Washington and when they arrived, they first took the teenager inside and left Diego in the backseat. After a while, the men placed a hood on his head and took him inside also. Diego said they asked him more questions once inside the house. When he could not provide them with the answers they wanted, the men became angry and hit him. At times, they questioned him alone and at other times, the men placed him and the teenager they called Tiger in the same room while questioning them and beating them. At times, Diego could not tell who asked the questions, as they spoke in English and Spanish. Diego testified that he heard them beat Tiger, who was crying, scared, and acted like he did not know who or what they were talking about.

         Diego testified that later, Garcia, Kristopher, and D.J. put him in the front passenger floorboard of another truck and told him they were taking him home. He suggested that D.J. drove, and Kristopher and Garcia rode in the backseat. Rather than take him home, they took him to a gas station at the corner of Florida and Highland. Diego said they had a jacket over his head while they drove around, and they stopped when they said they saw Dulla at the gas station. They made Diego peek out the window and they asked him if he saw Anthony at the store, and he told them he did not. Diego testified that they told him they did not believe him and felt he was trying to protect Anthony. Diego told the jury he heard Kristopher and Garcia asking each other if they had the guns and ammunition. Diego saw Garcia with a gun earlier, before they put him in the truck. Diego testified that Kristopher and Garcia exited the truck, and shortly after, Diego heard gunshots, but he did not see the shooting. Diego thought he heard at least ten gunshots. Diego testified that after the shooting stopped, Kristopher and Garcia jumped in the truck "saying that they got him, that they knew they hit somebody . . . they shot . . . directly at them and [knew] they had got (sic) somebody." Diego told the jury that before they released him, Garcia threatened him. Specifically, Garcia told Diego that if he went to the police, they would harm his family, which Diego took seriously. The next day, though, he told his girlfriend and her mother what happened, and they insisted he tell the police.

         The trial court held a hearing outside the jury's presence to address the admissibility of certain testimony the State intended to introduce through Diego. After the trial judge allowed the testimony before the jury, Diego testified that at the time of trial, he was incarcerated on an unrelated drug conviction and transferred to the Jefferson County Jail the night before the trial began so he would be available to testify. Because of an administrative error, he was housed in a jail dormitory with other prisoners and Garcia approached him there, which scared Diego. Diego explained that Garcia told him to testify that Garcia was innocent and that the police coerced Diego to give the incriminating statements. In return, Garcia would help Diego by bonding him out, getting him a good lawyer, and helping his family. Diego confirmed Garcia wanted him to lie on the stand and convince everyone Garcia was not guilty. According to Diego, Garcia told him that if Diego was charged with perjury for changing his testimony, Garcia would help him out.

         The defense questioned Diego's credibility on cross-examination. Diego admitted he smoked a lot of marijuana around the time of the shooting and he was sentenced to confinement in a rehabilitation program at the time of trial. Diego testified that because of his many conflicting statements, the police did not believe him, thought he was involved in the crime, and at one time, also charged him with the murder. But later, the police told Diego that other witnesses confirmed what he told the police in his last statement, and they dismissed the charges.

         The defense also questioned Diego about information he posted on his Facebook page containing profanity and discussing murder. Diego explained the Facebook posts quoted song lyrics, and he identified the songs for the jury. The defense also admitted a photograph of a dark Chevrolet Avalanche, which Diego confirmed belonged to his family. Diego testified that while the Avalanche belonged to his mother, he never obtained a driver's license, so his mother ...


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