Alejandrez v. State
| Decision Date | 28 April 2021 |
| Docket Number | No. 04-19-00206-CR,04-19-00206-CR |
| Parties | Joel ALEJANDREZ, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
From the 381st Judicial District Court, Starr County, Texas
Honorable Jose Luis Garza, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
AFFIRMED
Appellant Joel Alejandrez was found guilty by a Starr County jury for the murder of Uriel Magana, Jr. and for tampering with physical evidence. Alejandrez was sentenced to life in prison as to the murder conviction, and ten years confinement concurrently as to the tampering with physical evidence conviction. Alejandrez raises several issues on appeal. He argues that (1) the trial court failed to credit him for all his earned jail time credit; (2) the trial court failed to specifically apply the law of parties to the facts in the jury charge application paragraph for tampering with evidence, and he was harmed by it; and (3) the State forfeited the murder charge by omitting the words "cause an individual's death" in two of the three manner and means paragraphs in the jury charge for murder, which Alejandrez claims meant that he could only have been convicted of the lesser crime of deadly conduct and that he could only have been sentenced for deadly conduct. We affirm the trial court's judgment.
On August 29, 2014, Joel Alejandrez, Adrian Martinez, Jose Angel Gomez, Jesus Roberto Gomez, and Carlos Martinez drove to Roma, Texas to confront Uriel Magana, Jr. Upon arrival, and before any words were exchanged, Alejandrez fired multiple rounds from a handgun at Magana, who was unarmed. Immediately after Alejandrez shot Magana, he drove himself and his friends away from the scene. Alejandrez looked for a place to hide his car, and Carlos Martinez wrapped the firearm in a blanket and left it in an abandoned house in his neighborhood. Meanwhile, Magana's friends drove him to a hospital in McAllen where he died from his injuries.
On December 1, 2015, a Starr County jury found Alejandrez guilty of murder and tampering with physical evidence. He was sentenced to life in prison for murder and ten years confinement for tampering with evidence, to be served concurrently.
Alejandrez now appeals.
In his first issue, Alejandrez argues that the trial court incorrectly calculated the earned jail time credit as to both convictions for murder and tampering with evidence. He was credited for 646 days of earned jail time credit, but he had already served 648 days in jail. Alejandrez argues that this court should vacate each judgment and remand the cause to correct the time credit. The State responds that this issue is moot because the trial court already signed and entered two judgments nunc pro tunc to correct the error.
There is no dispute over the correct earned jail time credit. Alejandrez argues, and the State agrees, that the earned jail time credit should be 648 days. Alejandrez and the State agree that the trial court incorrectly gave him 646 days of jail credit as of sentencing.
It is clear from the record that the trial court entered an order nunc pro tunc to correct the earned jail time credit two weeks after it heard Alejandrez's motion for new trial on the issue of earned time credit. The issue is therefore moot.
We next address Alejandrez's complaints regarding the trial court's jury charge applications of law to the facts of the case.
Alejandrez complains of two jury charge application issues: 1) the law of parties was not adequately applied to the facts of the case for tampering with evidence; 2) two of three application paragraphs for the manner and means of murder did not contain the words "cause an individual's death," thereby invalidating Alejandrez's conviction for murder. The State argues that any error was harmless.
"Our first duty in analyzing a jury-charge issue is to decide whether error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If we find error, then the standard of review "depends on whether the error was preserved." Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020) (citing Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020)); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Error is reversible if it was preserved with a timely objection and if it caused some harm. Gonzalez, 610 S.W.3d at 27; Almanza, 686 S.W.2d at 171. If error was not preserved, the error is reversible if the court determines that the error causeddefendant egregious harm.1 Gonzalez, 610 S.W.3d at 27; Almanza, 686 S.W.2d at 171. We evaluate the degree of harm based on the Almanza factors: (1) the jury charge, (2) the state of the evidence, (3) the parties' arguments, and (4) all other relevant information in the record. Almanza, 686 S.W.2d at 171; see also Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
An application paragraph of a jury charge "authorizes the jury to act by applying 'the pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations,'" and is considered the "'heart and soul' of the jury charge." Garcia v. State, 486 S.W.3d 602, 609 (Tex. App.—San Antonio 2015) (citing Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012)). It must:
Id. at 609-10 (quoting Vasquez, 389 S.W.3d at 367). If it fails to meet these requirements, then we find error and conduct an Almanza harm analysis. See Vasquez, 389 S.W.3d at 370; see also Garcia, 486 S.W.3d at 608.
"Generally, a charge is sufficient to support a conviction on the parties theory if it instructs the jury on the law of parties in the abstract portion of the charge and the application paragraph incorporates those instructions by reference." Jones v. State, No. 07-13-00386-CR, 2014 WL4197524, at *3 (Tex. App.—Amarillo Aug. 25, 2014, pet. ref'd) (mem. op.) (citing Vasquez, 389 S.W.3d at 368; Chatman v. State, 846 S.W.2d 329, 332 (Tex. Crim. App. 1993)). "However, it is error for a charge not to apply the law of parties directly to the facts when requested." Id. (citing Greene v. State, 240 S.W.3d 7, 15 (Tex. App.—Austin 2007, pet. ref'd); see also Vasquez, 389 S.W.3d at 368. An application paragraph that incorporates law of parties by using the words "acting alone or as a party" is considered adequate if the defendant does not request an instruction more specific to the case. See Greene, 240 S.W.3d at 15 (citing Marvis v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001)). But if the defendant objects and requests more specific language in the application paragraph, then he is entitled to it. See Vasquez, 389 S.W.3d at 368 . To refuse it is error. See id.
a. Error
Here, the trial court incorporated law of parties in the application paragraph for tampering with evidence by using the words "acting alone or as a party as that term has been previously defined," so that the application read in relevant part:
If you believe from the evidence beyond a reasonable doubt that on or about the 29th day of August, 2014, in Starr County, Texas, the Defendant JOEL ALEJANDREZ, did then and there, acting alone or as a party as that term has been previously defined, knowing that an offense had been committed, namely, that he had fired a firearm at or in the direction of URIEL MAGANA, JR. intentionally or knowingly concealed a Smith & Wesson, 9mm handgun, serial number HED3318, with intent to impair the availability of the handgun as evidence in a subsequent investigation or official proceeding related to the firing of the firearm then you will find the defendant guilty of Tampering with Evidence.
In discussing jury charge instructions with the trial court and the State before closing arguments, Alejandrez objected to the application and requested that specific accomplice names and means of commission be included, stating:
[A]t a time like this, upon specific requests of the lawyer, the court's charge is not sufficient if it just says ask the jury if my guy acting alone or as a party is guilty of the particular crime. That we are supposed to, upon objection, the court is supposed to specifically apply the law to the facts which would say that — name the co-defendants who allegedly did the crime. Here are two accomplices listed in the next paragraph. And that our guy — that my man acting with intent to promote or assist the commission of the tampering by A or B, that one or two accomplices, my guy, defendant, solicited, encouraged, directed, aided or attempted to aid Mr. A or B, the two accomplices, to commit the crime.
The trial court overruled Alejandrez's objection and request to be more specific, which was error. See Vasquez, 389 S.W.3d at 368.
. b. Harm Analysis
There is no dispute that Alejandrez timely objected to the application paragraph for tampering with evidence. Our analysis, however, does not end here. We must now consider the Almanza factors to determine whether Alejandrez incurred...
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