Gerardo Gabriel De La Fuente v. State

• Decision Date: 02 April 2014
• Docket Number: No. 04–13–00144–CR.,04–13–00144–CR.
• Citation: 432 S.W.3d 415
• Parties: Gerardo Gabriel DE LA FUENTE, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

432 S.W.3d 415

Gerardo Gabriel DE LA FUENTE, Appellant

v.The STATE of Texas, Appellee.

No. 04–13–00144–CR.

Court of Appeals of Texas,

San Antonio.

April 2, 2014.

Roberto Balli, Balli Law Office, Laredo, TX, for Appellant.

David L. Reuthinger, Jr., Webb County District Attorney's Office, Laredo, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice, REBECA C. MARTINEZ, Justice, LUZ ELENA D. CHAPA, Justice.

OPINION

Opinion by: REBECA C. MARTINEZ, Justice.

Gerardo Gabriel “G.G.” De La Fuente appeals his conviction for murder, challenging the sufficiency of the evidence to corroborate accomplice witness testimony and to support his guilt under the law of parties, in addition to other purported trial errors. We overrule De La Fuente's issues on appeal and affirm the trial court's judgment.

Factual and Procedural Background

De La Fuente was charged with the murder of Agustin Tamayo. In the early morning hours of August 11, 2011, De La Fuente and Sabrina Rubio, a cocaine supplier for the “Ghost Town” neighborhood of Laredo, were driving around making deliveries. At one point, they stopped and picked up Mario Alberto Garza. De La Fuente continued driving Rubio's black Chevy Impala; Rubio was riding in the front passenger seat, and Garza was in the backseat. At approximately 4:05 a.m., a phone call was made from one of Rubio's cell phones to Tamayo's house. De La Fuente then drove to Tamayo's house, a known “crack house” in the Ghost Town area. Tamayo walked out of his house and had a conversation with one of the people inside the black car. Garza fired four shots at Tamayo from the backseat of the car. After the shots were fired, De La Fuente drove away. Tamayo was shot in the heart and lungs and died at the scene. Garza, Rubio, and De La Fuente were all indicted for Tamayo's murder.

The evidence at De La Fuente's trial included accomplice witness Sabrina Rubio's testimony that De La Fuente was the driver of her black Chevy Impala that night and Garza was the shooter. The State granted Rubio testimonial immunity. Rubio testified she picked up De La Fuente about midnight and they drove around making her cocaine deliveries. Rubio had two cell phones with her that night—numbers * * *2684 and * * *1275. She stated De La Fuente was using the cell phone with the number * * *2684 that night. De La Fuente called Mario Garza, whom Rubio did not know. De La Fuente was the one who decided to drive over and pick up Garza. Rubio testified that all three of them had used drugs and alcohol that night, and “not one of us was sober.” Rubio testified that she was the one who used cell phone number * * *2684 to call Tamayo's residence at about 3:00 a.m. or 4:00 a.m. Tamayo asked Rubio if she “had anything on [her],” and Rubio said she did. De La Fuente then drove the car over to Tamayo's house, with Rubio riding in the front passenger seat and Garza in the back seat. Tamayo met them outside and walked up to the driver's side window. Tamayo told De La Fuente he was waiting for a guy to bring him some money and De La Fuente replied they would come back later. Rubio stated that Tamayo always paid her and did not owe her money and that the conversation was friendly. Garza suddenly fired four shots into Tamayo's chest from the backseat of the car; Garza did not say anything, he just shot. Rubio stated she turned around in her seat and asked Garza, “why ... did you do that?” Rubio saw that the gun was a revolver. De La Fuente drove away at “medium” speed after Garza fired the shots, telling Rubio to “calm down.”

Rubio testified that De La Fuente drove to her family ranch off of Highway 359. The ranch house was locked but they broke inside and she, De La Fuente, and Garza stayed there together for about seven or eight hours. Rubio testified that at the ranch house she overheard De La Fuente ask Garza, “why did you do that?” and say, “I never wanted you to do anything.” Later, De La Fuente told Rubio that, “if anything happened that he would take the blame,” and that “some things are meant to happen and some things just happen.” De La Fuente also instructed Rubio to erase Tamayo's phone number. In her statement to Officer Richard Reyes, Rubio stated that De La Fuente also told her “if anything happens, you don't know nothing.” Rubio testified she did not know why Garza shot Tamayo, and did not see Garza with a gun when he got into her car. She stated De La Fuente never told her anything about a plan to kill Tamayo that night. Rubio called her grandmother while they were at the ranch. Her grandmother drove to the ranch and Rubio gave her purse to her grandmother who took it home. Rubio stated her purse had a thousand dollars' worth of cocaine and money in it. The next morning Garza's brother picked the three of them up in a yellow Hummer. Rubio left her black Impala at the ranch and eventually gave it to her aunt in another city. Garza's brother drove them to the Garza home where the three of them stayed together another four or five hours. Eventually, Rubio asked Garza's mother to drive her home. No one ever called the police about Tamayo's murder.

In addition, Joey Salazar, who was inside Tamayo's house at the time of the shooting, testified he heard a car honk and Tamayo went outside. Salazar looked outside and saw a black car. He heard Tamayo arguing with someone immediately before he heard three to five gun shots. When Salazar came out he saw the black car driving away and found Tamayo on the ground dead. Veronica “Betty” Ramos testified that Rubio called her between 2:30 a.m. and 3:00 a.m. on the night of Tamayo's murder. Ramos could see that Rubio and De La Fuente were together in the car because De La Fuente took the phone away from Rubio and told Ramos to open the gate and let them in. Ramos refused. Ramos also testified that both Rubio and De La Fuente had told her they were dating.

Orlando Ibarra testified that, two weeks before Tamayo's murder, De La Fuente asked him for a gun but Ibarra did not have a gun at the time. Ibarra also testified that, two weeks after Tamayo's murder, he saw De La Fuente and they talked about the murder, with De La Fuente asking him, “What you know?” ¹ Specifically, Ibarra testified that, “it came up again, just to talk about the murder, just talk about it, hey, you know, talk about neighborhood stuff. Did you know anything about him? Well no. Only what you know. Like what do you know? What do you know? And well, you know, that's the way I took it, what you know.” When asked what De La Fuente's mannerisms and demeanor were like, Ibarra said, “Well, the way he is, the way we all carry ourselves. What, you know—I guess I just took it as what you know. What do you know? That's what he said.” In addition, Rubio's grandmother testified that Rubio was at the ranch house with two men that night and that they broke the locks to get inside. Garza's mother testifiedthat Rubio and De La Fuente were with her son at her home the next day.

Detective Robert Garcia testified about his analysis of cell phone tower records for the night of Tamayo's murder. The records for cell phone number * * *2684, which is registered to Sabrina Rubio, showed that a call was placed to Tamayo's residence at 4:05 a.m.; another call was made from that phone at 4:14 a.m. The records show the phone was physically located close to Tamayo's house at the time of those calls. The time of the 911 call from Tamayo's residence was 4:16 a.m., according to the lead investigator Richard Reyes. The phone records from later that day show Rubio's cell phone number * * *2684 was near Highway 359, where Rubio's family ranch is located. The records also show, however, that the phone did not stay in one place, but was continuously moving into different cell phone tower areas during the day. Garcia testified the times shown on the cell phone tower records are not exact with respect to the time a call was placed, but reflect when the data was received.

Officer Richard Reyes testified concerning his investigation of Tamayo's murder and his interview of De La Fuente. The video recording of De La Fuente's statement was admitted into evidence and played for the jury. A written transcript with translations from Spanish to English was also admitted. In response to questions asking what he knew about Tamayo's murder, De La Fuente stated he heard a black car was involved but he denied knowing why or how Tamayo was killed. De La Fuente stated that he used drugs at Tamayo's house at about 8:00 p.m. that night and “was really high on drugs.” De La Fuente insisted that Tamayo was a very good friend. De La Fuente admitted that he was driving Rubio's black Impala as they cruised around later that night. He stated that Rubio was a drug supplier and a friend with whom he hung out two to three times per week, but stated she was not his girlfriend. He also admitted that he sometimes used Rubio's cell phone. De La Fuente admitted that he drove Rubio's car to Tamayo's house. De La Fuente stated that Tamayo came out of the house, he spoke to Tamayo but did not get out of the car, and then he and Rubio drove away. De La Fuente was evasive, however, about whether he was the person who used Rubio's cell phone to call Tamayo's residence at 4:05 a.m. De La Fuente explained that after they stopped by Tamayo's house at about 4:00 a.m., he and Rubio drove to her grandfather's ranch off of Highway 359, but it was locked so they left. He and Rubio parted ways and he returned to Laredo at about 6:45 a.m. in a different vehicle with a friend that he refused to name.

The jury was instructed to find De La Fuente guilty of murder if they found that, either acting alone or as a party with Mario Alberto Garza, he intentionally or knowingly caused Tamayo's death by shooting him in his body with a firearm. No lesser included offense instruction was given. The jury found De La Fuente guilty of murder. De La Fuente pled true to the State's punishment enhancements based on his prior...