Esparza v. State
| Decision Date | 06 October 2022 |
| Docket Number | 13-21-00349-CR |
| Parties | JOHNNY ESPARZA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do not publish. Tex.R.App.P. 47.2(b).
On appeal from the 347th District Court of Nueces County, Texas.
Before Justices Benavides, Hinojosa, and Silva
Appellant Johnny Esparza was convicted of aggravated robbery and engaging in organized criminal activity, both first-degree felonies, and sentenced to concurrent fifty-year terms of imprisonment for each count. See Tex. Penal Code Ann. §§ 29.03(b), 71.02(b)(3). By two issues Esparza argues that (1) the trial court committed fundamental error by acting as an advocate in its questioning of witnesses, and (2) he was denied effective assistance of counsel. We affirm as modified.
On May 31, 2019, a grand jury indicted Esparza on three counts: (1) aggravated robbery, (2) engaging in organized criminal activity, and (3) murder. On September 28, 2021, Esparza waived his right to a jury trial, and a bench trial began. We summarize the relevant portions of the proceedings as follows:
A. Deion Brunson's Testimony
Deion Brunson testified that he had been friends with Parris Tipton, the deceased, since middle school. According to Brunson, on February 24, 2019, he visited the apartment Tipton shared with his sister. Later in the day, around "3:00 or 4:00ish," Esparza arrived. During this part of Brunson's testimony, the following colloquy occurred:
Brunson eventually testified that Tipton's residence was in Nueces County. According to Brunson, the three men were pondering ways to make money when Esparza came up with the plan "[t]o rob somebody." Esparza worked out the details of who to rob, and the men agreed to rob this person under the guise of a drug deal. The men arranged to buy drugs from a third party, but their true intent was to steal the drugs and resell them.
After the plan was laid, Brunson observed Esparza acquire a gun from a nearby grocery store and provide that gun to Tipton. According to Brunson, Esparza also showed Tipton and Brunson his "personal gun," which he brought with him to the robbery.
Later that evening, the three men drove to an apartment complex where they agreed to meet the potential robbery victim. The trial court questioned Brunson about the scene of the incident:
Brunson clarified that he dropped Esparza and Tipton off at the apartment complex, and he waited in the car next to a nearby park. After about five minutes of waiting, Brunson "heard . . . gun shots" and then observed Esparza "[s]hooting his gun." Brunson later testified that he heard two rounds of gunfire that were "in sync right after another" and believed the second round may have been from a semi-automatic weapon "from the way [it] sounded." The trial court attempted to clarify this issue:
When Esparza reached the vehicle, Brunson asked him about Tipton's whereabouts. Esparza "got out of the car, and he looked around and [Tipton] was on the [ground]." During his testimony, Brunson acknowledged that he did not know whether Esparza carried Tipton from the apartments to his car, to which the trial court interjected:
Brunson testified that Esparza then "dragged [Tipton] and put him in [Brunson's] back seat." He observed that Tipton "was all bloody and shot."
The men left the scene and, eventually, Brunson called Tipton's mother, who advised him to take Tipton to the hospital. According to Brunson, Esparza said "[a]t least two or three" times that "he wasn't going to go" to the hospital with Brunson. When they were "down the street" from the hospital, Esparza "jumped out [of] the car." Brunson took Tipton to the hospital, where he later expired.
B. Ralph Espinoza's Testimony
Ralph Espinoza testified that, "to make a little bit of extra side money," he would sometimes sell drugs. On the night of the incident, Espinoza arranged to sell six bottles of "promethazine with codeine," colloquially known as "[d]rank," to Esparza for roughly $900. Espinoza agreed to drive from Ingleside to Corpus Christi to meet with Esparza at an apartment complex.
When Espinoza arrived at the apartments, Esparza entered his car and sat in the back passenger seat. Espinoza testified that he noticed the backpack Esparza brought with him was "bottom heavy," which put him "on edge." The two began the faux transaction, but when Esparza began counting the money, Tipton "open[ed] the door and put[] a gun to [Espinoza's] head." Tipton told Espinoza, "Don't move or I'm going to shoot you." He then told Esparza to "grab the stuff" and "get their phones and wallets, too." While this was happening, Espinoza was attempting to reach the gun he kept underneath his car seat. According to Espinoza, when he was finally able to grab the gun, Tipton "just started shooting, and then [Espinoza] started shooting." Later in his testimony, Espinoza acknowledged that "the cops told [him] that [Tipton] didn't" shoot, but that there was "one live round" in the chamber "from when he cocked the [gun] right by [Espinoza's] door."
After Espinoza finished shooting, he saw Esparza and Tipton running across the parking lot. Espinoza denied shooting Tipton in the back.[1] He also testified that a murder charge against him was no-billed.
C. Esparza's Testimony
According to Esparza, it was Tipton's idea to buy and resell the drugs. Esparza testified that his response to this idea was, Esparza contacted Espinoza via Snapchat to arrange to buy six bottles of promethazine with codeine for about $900. He determined that they "could resell it for $300 a bottle and make $1,800 off of that." Esparza denied possessing a gun during the drug deal turned robbery turned shooting. He also denied that he ever discussed robbing Espinoza with Tipton and Brunson.
When he arrived at the drug deal, Esparza entered the back passenger seat of Espinoza's car. Esparza testified that when he started counting the money to give to Espinoza, Tipton came "running around the side and pull[ed] the gun on [Espinoza]." Esparza heard Tipton tell Espinoza, "Shut the hell up or I'm going to shoot you."
Esparza reportedly asked Tipton, "What the hell are you doing?" and Tipton told him to "grab the shit," "[g]rab their wallets," and "[g]rab their phones." Esparza testified that he then grabbed the bottles, exited the vehicle, and started running. After he "was already about a good 30 yards from the car," he glanced back and saw Tipton running and Espinoza firing his gun. When Tipton and Esparza met up, Tipton relayed that he thought he had been "hit."
Esparza testified that it was his idea to bring Tipton to the hospital, but acknowledged that he later told Brunson ...
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