GARZA v. STATE (2016)

MEMORANDUM OPINION

Opinion by: Sandee Bryan Marion, Chief Justice

Daniel Garza was found guilty by a jury of felony murder. On appeal, Garza contends: (1) the evidence is legally insufficient to support his conviction; and (2) the trial court erred in amending the judgment to include a conviction on Count II of the indictment which was abandoned by the State. We affirm the amended judgment on Count I and vacate the amended judgment on Count II.

BACKGROUND

Garza and Miguel Vasquez were both regulars at a club. Police officers and EMS were dispatched to the club in response to a call regarding an injured-sick person. When the officers and EMS arrived, the person was in the parking lot, and the officers stood by to ensure no one interfered while EMS treated the person. When closing time was announced at 2 a.m. and the club lights were turned on, a fight broke out involving many people. Someone inside the club went outside and told the officers about the fight.

As the officers were walking up the stairs to the entrance of the club, they heard a gunshot, and people began exiting the club. The officers received conflicting information regarding whether the shooter was inside or outside the club; however, some people in the crowd pointed to Garza in the parking lot as the shooter. Garza had already exited the club and was seated in a car in the parking lot. The officers instructed Garza to exit the car, and Garza was detained in a patrol car. The gun used in the shooting was recovered three parking spaces from the car in which Garza had been seated. When the officers heard “some talk” about the shooter wearing red colored shoes, the officers confirmed Garza was wearing red colored shoes. After interviewing ten witnesses, three witnesses who were club employees identified Garza as the shooter.

Garza was charged in a two count indictment. Count I charged Garza with the felony murder of Miguel Vasquez by intentionally or knowingly discharging a firearm at and in the direction of Vasquez which caused his death while in the course of intentionally or knowingly committing the felony of deadly conduct. Count II charged Garza with murder by intentionally or knowingly causing the death of Vasquez by shooting him with a deadly weapon.

At the conclusion of the presentation of evidence but before the jury charge for the guilt-innocence phase of trial was read, the State waived and abandoned Count II of the indictment. As a result, the jury was instructed only as to Count I. The jury found Garza guilty, and the trial court imposed a sentence of thirty-one years' imprisonment and a $5,000 fine. The trial court signed a judgment on February 5, 2016 reflecting the jury's verdict and sentence. On March 2, 2016, the trial court signed two amended judgments — one relating to Count I and the other relating to Count II. Garza appeals.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Garza contends the evidence is legally insufficient to support his conviction. As previously noted, Garza was indicted for felony murder with deadly conduct as the underlying felony. The jury was instructed that “a person commits deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals.” See TEX. PENAL CODE ANN. § 22.05(b)(1) (West 2011).

Garza asserts the testimony of the “witnesses who claimed to observe the shooting were conflicting and inconsistent,” and “[c]ontroverted, inconsistent eyewitness testimony cannot be [the] sole basis for a conviction of felony murder where no forensic evidence can tie [Garza] to the crime.” Thus, Garza contends the evidence is insufficient to support the jury's finding that he was the person at the scene who discharged the firearm, firing the shot that killed Vasquez.

The State responds two witnesses testified Garza “produced a firearm and fired the shot that killed Miguel Vasquez,” and the jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. The State also notes a detective testified two additional witnesses identified Garza as the shooter, Garza was apprehended fleeing from the scene, and the murder weapon was found in reasonably close proximity to Garza.

A. Standard of Review

“When examining the legal sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found each element of the offense beyond a reasonable doubt.” Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, (1979)). “Beyond a reasonable doubt, however, does not require the State to disprove every conceivable alternative to a defendant's guilt.” Id. Instead, it is within the jury's exclusive province to “resolve inconsistencies in the evidence, including deciding whether the State's theory of the case is more credible than another reasonable, exculpating hypothesis raised by the evidence.” Id. at 808 n.3. In addition, the jury as the “trier of fact is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence so long as it is supported by the record.” Id. at 809. “Sufficient evidence can support a murder conviction even in the absence of physical evidence such as DNA evidence, fingerprinting evidence, and the murder weapon; thus, such evidence is not required to obtain a conviction.” Delacerda v. State, 425 S.W.3d 367, 382 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); see also Corona v. State, Nos. 04-02-00861-CR & 04-02-00862-CR, 2004 WL 56922, at *2 (Tex. App.—San Antonio 2004, pet. ref'd) (“Physical evidence is not required.”) (not designated for publication).

B. Analysis

Amanda Kolodejcak, a bartender at the club, testified she saw Garza pull a gun from his waistband and shoot Vasquez. Kolodejcak testified she was in the outside bar area when the shooting occurred. The shell casing was found in the area where Kolodejcak testified the shooting occurred. In his brief, Garza seeks to discredit Kolodejcak's testimony because Kolodejcak testified she dropped to the ground and stayed on the ground after the shooting, while another bartender testified Kolodejcak ran into the cooler at some point after the shooting and a manager also testified he believed Kolodejcak was in the cooler. As previously noted, however, the jury is the sole judge of the credibility of the witnesses.

Rosalinda Garzes, a friend of Vasquez, also testified that she saw Garza shoot Vasquez; however, she stated the shooting occurred in front of the inside bar. In his brief, Garza points to the inconsistencies between Garzes's testimony and the other evidence presented. For example, contrary to the testimony of one bartender that Vasquez was a regular patron of the club, Garzes testified Vasquez only occasionally went to the club. In addition, contrary to the shirt Garza was shown to be wearing in his video interview, Garzes testified Garza was wearing a blue and white shirt. Finally, the investigating detective testified Garzes was unable to positively identify Garza as the shooter at the scene. The jury, however, is the sole judge of the credibility of the witnesses and the weight to give each witness's testimony.

Detective Robert Bunnell, the investigating detective, testified two other club employees identified Garza as the shooter in addition to Kolodejcak. Neither of the other two club employees were called as witnesses.

Michael Victor Martinez, a forensic scientist supervisor for the Bexar County Criminal Investigation Laboratory, testified he tested the swabs from the gunshot residue evidence collection kit gathered from Garza. The testing was indeterminate. Martinez testified an indeterminate test did not mean Garza did not discharge a firearm but that the test results were inconclusive. Martinez testified that gunshot residue can be removed by wiping your hands on your clothes, and oftentimes gunshot residue is not found when a single shot is fired from a gun.

Having reviewed the evidence and deferring to the jury's evaluation of the credibility of the witnesses and the weight to be given their testimony, we hold the evidence is legally sufficient to support the jury's verdict. Garza's first issue is overruled.

AMENDED JUDGMENT ON COUNT II

In his second issue, Garza contends the trial court erred in amending the judgment to include a conviction on Count II of the indictment. The State concedes the trial court erred in entering an amended judgment on Count II. Because the record reflects the State abandoned Count II before the charge was presented to the jury and the jury was never charged or reached a verdict on Count II, Garza's second issue is sustained, and the trial court's amended judgment on Count II is vacated.

CONCLUSION

The trial court's amended judgment on Count II is vacated. The trial court's amended judgment on Count I is affirmed.

Sandee Bryan Marion, Chief Justice