Garcia v. State

• Decision Date: 09 December 2015
• Docket Number: No. 04–14–00670–CR,04–14–00670–CR
• Parties: Simon Rene Garcia, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

486 S.W.3d 602

Simon Rene Garcia, Appellant

v.The State of Texas, Appellee

No. 04–14–00670–CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: December 9, 2015

Discretionary Review Refused July 27, 2016

Jorge G. Aristotelidis, Aristotelidis & Moore, San Antonio, TX, for Appellant.

Mary Beth Welsh, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.

Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice

OPINION

Opinion by: Patricia O. Alvarez, Justice

This case stems from the murder of Samuel Wass on March 26, 2012. Appellant Simon Garcia was driving his Toyota Tundra truck on the day in question. Simon¹ stopped the vehicle near where Wass was sitting, and Simon and an unidentified third-party exited the vehicle. An argument ensued. The argument escalated and the unidentified individual shot Wass several times with a .45 Glock firearm. Simon and the unidentified individual then left in Simon's vehicle, with Simon in the driver's seat. Simon was ultimately indicted for Wass's murder. On August 19, 2014, a jury returned a guilty verdict pursuant to the law of parties and assessed punishment at thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

On appeal, Simon challenges the sufficiency of the evidence and the trial court's jury charge. Specifically, Simon alleges (1) the evidence was legally insufficient to support the murder conviction under either the law of parties or as a party and (2) the jury charge erroneously allowed the jury to return a verdict on different means of committing the murder and based on a theory not contained within the State's indictment.

Factual and Procedural Background

The State's case was tediously presented through the testimony of twenty witnesses and the admission of over fifty exhibits. Because most of Simon's appellate issues revolve around the sufficiency of the State's evidence, a more detailed version of the testimony is provided below.

A. Responding Officers

San Antonio Police Officer Jose Rojas responded to an emergency signal and a report of shots fired. By the time he arrived at the scene, the victim, Samuel Wass, was being attended to by emergency personnel. Officer Rojas was able to identify five witnesses: Jennifer Guzman, Bernabe Robledo Jr., Marissa Casanova, Sally Garcia, and Domingo Perales.

During the officer's attempts to identify the individuals involved in the shooting, several witnesses identified Simon as the driver of the vehicle and an unidentified individual as the passenger and shooter. Simon was described as wearing a red shirt, dark hair, medium-skin tone, and smaller than the passenger. The passenger, and the shooter, was unknown to the witnesses. The witnesses described the passenger as heavy-set with a goatee, medium complexion, and wearing a white, polo shirt with stripes. The witnesses were also able to describe the vehicle being driven by Simon as a silver-gray Toyota Tundra and to provide a license plate.

San Antonio Police Officer Faras Khalaf arrived shortly after the shooting. He observed Guzman providing medical attention to Wass. Officer Khalaf further relayed hearing Marissa Casanova scream, “It was Simon. It was Simon.” Marissa did not, however, provide the officer with a last name. Finally, Officer Khalaf's investigation also supported the vehicle contained two individuals, but only the passenger was shooting.

Officer Randall Matthey, also with the San Antonio Police Department, testified the vehicle was originally identified as a silver-colored Dodge. The identification was later corrected to a silver-colored, four-door, Toyota Tundra with a matching hard cover.

B. The Eye–Witnesses

The State called several witnesses that either witnessed the shooting or arrived shortly thereafter.

1. Bernabe Robledo Jr.

The State's first lay witness was Bernabe Robledo Jr. At the time of the shooting, Robledo, an insurance adjuster, was sitting in his vehicle writing an estimate for Domingo Perales. Robles testified a red Honda Civic pulled in behind him and, while the female exited the vehicle and entered the residence, the male stayed in the vehicle. Robledo testified that, shortly thereafter, a silver truck pulled up and the two individuals in the truck were arguing with the male in the Honda. Robledo described two Hispanic men exiting the truck; the shorter one from the driver's side and the bigger one from the passenger door.

As the arguing continued, Robledo saw the driver yelling at the Honda passenger. Robledo was trying to mind his own business and finish the estimate when he heard shots fired. When he looked up, Robledo identified the bigger guy as the shooter and further testified he saw a black .45 Glock in the passenger's hand. Robledo heard the shooter say something akin to, “I told you not to do that shit and I told you,” before firing several more times at the victim. When the victim “rolled out of the car,” Robledo testified the passenger shot him again as the victim tried to duck behind the car towards the curb. When questioned, Robledo believed he heard a total of seven or eight gunshots.

Robledo further testified he heard the victim say, “they are shooting at me, they are shooting at me,” followed by, “They shot me, they shot me.” Robledo saw the driver pushing the passenger toward the truck and say, “let's go, let's go.” As the two men drove off, Robledo was able to write down the license plate, make, and model of the truck.

Robledo did not know any of the individuals involved in the shooting. Although he was able to provide the officers with a description of each, when asked to identify the driver from a photo array, Robledo could only limit his identification to two of the individuals shown. Yet, during trial, over defense counsel's objection, Robledo identified Simon as “the smaller gentleman” and the driver of the silver Toyota Tundra.

2. Marissa Casanova

Marissa testified Wass was her on-again, off-again boyfriend for approximately three years and the father of her youngest child. Additionally, her sister, Sally Ann, was married to Simon's brother, Albert Garcia Jr. Marissa relayed that she picked up Wass earlier in the evening in her sister's red Honda Civic and drove back to her father's house. Marissa conceded she was with Wass the evening before when Wass smoked marijuana and ingested methamphetamines. Marissa's father, Domingo Perales, did not like Wass; thus, when they arrived at the house, Wass waited in the car while Marissa went inside to get her sister, Sally Ann. Marissa further explained that she had known the Garcia family, including Albert and Simon, her entire life. They had lived down the street and grown up together.

While Marissa was in the residence, she heard five shots fired and then a “loud truck” drive away. She testified she immediately recognized the vehicle as “Simon's truck,” the Toyota Tundra she often heard speeding through the neighborhood. When she ran outside, she saw Wass walking toward her, he stumbled, and then collapsed on the ground. When she asked “who did this,” Marissa testified Wass “mouthed” it was Simon.

3. Domingo Perales

The State also called Domingo Perales to testify. Perales had known and lived on the same street as the Garcia family for over thirty years and had known Simon since he was born. He also testified his daughter, Sally Ann, was married to Simon's brother, Albert Garcia Jr. Perales testified that he was on his doorstep, with his back to the street, when he heard the shots. When Perales moved to where he could see what happened, he saw Simon get into his Toyota Tundra and speed away. Perales further testified that he heard a second person get into the truck, but he could not see the passenger door or the other individual.

4. Albert Garcia Sr.

Albert Garcia Sr., Simon's father, was also called to testify. Mr. Garcia was in his residence when he heard the shots fired. As he walked out the front door, he saw Simon driving by in his Toyota Tundra truck. Mr. Garcia, the only individual that could identify the passenger, testified he only knew the passenger as “Robert.” Although he did not know Robert's last name, he testified that Robert and Simon had been together earlier in the day helping with the family snow-cone business.

5. Jennifer Guzman

The final lay-witness was Jennifer Guzman. Guzman, a cardiac sonographer, was on her way home when she saw two men arguing. As she looked down to put her car into gear, Guzman reported hearing several gunshots. When she looked up, she saw Simon ran around the driver's side of the truck, but the truck took off quickly and she could only describe a “big arm” with a black gun outside of the passenger's side.

Guzman was the first to administer first aid to Wass. She remembered asking him “who shot you” and “who were you arguing with” and Wass responding, “Simon.” But when questioned, Guzman acknowledged the questions were asked in succession and Wass could have been answering either question.

C. Previous Exchange between Simon and Wass

The State elicited testimony from several witnesses regarding previous altercations between Simon and Wass. The State also called two additional officers regarding a stolen vehicle in October of 2011, approximately six months before the shooting. San Antonio Police Officer Connell testified that Simon made a stolen vehicle report on a silver Toyota Tundra registered to his father, Albert Garcia Sr. Simon reported that Wass stole the vehicle for the “twenty-eight inch rims.” A second officer testified the vehicle was later recovered with extensive damage to the vehicle.

Marissa also described several incidents between Wass and Garcia. One incident involved her son playing outside with Simon. When she and Wass walked up, Simon commented that Wass was not the child's father. Under rigorous questioning, Marissa conceded Wass and Simon exchanged “fighting words” and Simon “stated something about ‘I'll get you one day,’ or ...