Court of Appeals of Texas, Ninth District, Beaumont
Submitted on October 2, 2018
Appeal from the 252nd District Court Jefferson County, Texas
Trial Cause No. 15-22133
McKeithen, C.J., Kreger, and Horton, JJ.
CHARLES KREGER, JUSTICE.
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. See Tex. Penal Code Ann. §
19.02(b)(1) (West 2019). 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.
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
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.
The State's Theory and Evidence A. The State's
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.,  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.
Tiger Turner's Testimony
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.
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.
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.
Natalie Castillo's Testimony
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
Kristina Sanchez's Testimony
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.
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.
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.
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.
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.
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.
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.
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.
Diego Torres's Testimony
Torres testified and admitted he gave police several
different statements about the events of the evening in
question. 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.
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
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.
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.
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.
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.
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.
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 ...