Gonzales v. State

• Docket Number: 11-19-00274-CR
• Decision Date: 29 September 2023
• Citation: 680 S.W.3d 358
• Parties: Dimas GONZALES, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

680 S.W.3d 358

Dimas GONZALES, Appellant

v.The STATE of Texas, Appellee

No. 11-19-00274-CR

Court of Appeals of Texas, Eastland.

Opinion filed September 29, 2023

On Appeal from the 106th District Court, Dawson County, Texas, Trial Court CauseNo. 15-7565

Sarah Moore, Assistant, Philip Mack Furlow, District Attorney, for Appellee.

Dante Dominguez, Cynthia Orr, San Antonio, Douglas R. Gladden, Dallas, for Appellant.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

JOHN M. BAILEY, CHIEF JUSTICE

The jury convicted Dimas Gonzales¹ of first-degree murder and assessed his punishment at confinement for a term of forty-five years in the Institutional Division of the Texas Department of Criminal Justice.Appellant challenges his conviction in twenty-two issues.

Appellant’s fifteenth, sixteenth, and seventeenth issues concern the manner in which the trial court conducted the initial hearing on Appellant’s motion for new trial.We previously abated this appeal and remanded this cause to the trial court to conduct a new evidentiary hearing on Appellant’s motion for new trial.A copy of our August 12, 2021, abatement order is attached as an appendix to this opinion.We expressly incorporate the abatement order as a part of the opinion in this appeal.

In our abatement order, we determined that the trial court abused its discretion in conducting an evidentiary hearing on a motion for new trial when it (1) held the hearing in a private conference room, rather than a public courtroom; and (2) denied Appellant’s bench warrant and required Appellant to appear at the hearing via telephone.We sustained Appellant’s fifteenth through seventeenth issues by ordering that the trial court conduct a new evidentiary hearing on Appellant’s motion for new trial that complied with Appellant’s Sixth Amendment right to a public hearing and statutory right under Article 33.03 of the Texas Code of Criminal Procedure to be "personally present" at his motion-for-new-trial hearing.In response to our abatement order, the trial court conducted a second evidentiary hearing on Appellant’s motion for new trial.The trial court denied Appellant’s motion after the second evidentiary hearing.On the reinstatement of this appeal, we now address Appellant’s nineteen remaining issues.We modify and affirm.

Background Facts

A summary of the events leading up to the incident at issue, and the connections between the parties involved, is necessary.Nichole Canady and Appellant’s nephew, Bernardo "Bernie" Gonzalez, had been dating for a year.They were living together in an efficiency apartment on Nichole’s aunt’s property, and Bernie had received permission from Nichole’s parents to propose to her.Bernie also had permission from Nichole and her parents to drive Nichole’s car.In March 2015, Bernie crashed Nichole’s Ford Fusion into a tree in Lamesa.The car was totaled.

Nichole purchased a Mercury Montego to replace the Ford Fusion.On May 17, 2015, about two months after the Ford Fusion crash, Bernie was driving the Montego, with his brotherNicholas Gonzalez as a passenger, and fell asleep at the wheel.After Bernie awoke and "jerked the wheel" back towards the road, the vehicle rolled onto its passenger side and incurred extensive damage before falling back onto all four tires.

Bernie called Nichole and told her about the accident.Nichole broke up with Bernie at that time, telling him that he needed to remove his belongings from the apartment.Once he returned to the apartment, Bernie gathered his things and asked Gregorio Gonzalez, which is Bernie and Nicholas’s father, to pick them up.

Nichole called her mother, Mistry Canady, at around 5:00 p.m. to tell her that Bernie had crashed the Montego.Nichole’s father, Bernard Canady, called Mistry at around 8:00 p.m. to tell her that he was on his way home from work.When Bernard arrived home at around 8:30 p.m., Mistry told him that Bernie had crashed another vehicle.Mistry testified that Bernard was "upset" and quickly left for Nichole’s apartment to look at the damage to the vehicle.Mistry tried calling Bernard twice after he left, but he did not answer the phone.Mistry also called Nichole to tell her that her father was on the way.Nichole testified that Mistry seemed worried about Bernard when she called.

Nichole testified that Bernard arrived at her apartment when it was still "kind of daylight" to look at the damage to the Montego.Nichole estimated that Bernard arrived about fifteen-to-twenty minutes after Bernie left.Nichole testified that Bernard was "mad" about the car.Constella Bolton, Nichole’s aunt, was home during this conversation.Constella knew that Bernard was upset about the car because he was yelling and using profanity.

Bernard told Nichole that he was going to see Bernie and asked Nichole to come with him.Nichole asked her father not to go, told him that she did not want to go with him, and stayed behind as he left.Word quickly spread about Bernard’s intent to confront Bernie.Nichole called Bernie to let him know that Bernard was on his way.Constella called Mistry and told her that they needed to find Bernard; and Constella asked her cousin, Michael Manuel, and her father, Garfield Bolton, to check on Bernard.

Meanwhile, Gregorio had taken Bernie and Nicholas to Maria Gonzalez’s home (the site of the incident).Maria, Appellant and Gregorio’s mother, allowed both Appellant and Gregorio to live on her property.

Maria’s property was on a farm-to-market road near Lamesa.There were fields of crops and a bar ditch across the road.The property was fenced in and had gates that were usually kept open.The property had two buildings: the "main house" and the "back house," which was a one-bedroom house behind the main house.Both houses faced the farm-to-market road.The property had one driveway on the eastern side of the main house and one driveway in front of the main house.There was also a dirt road leading to the back house.

Gregorio parked his pickup on the driveway to the east of the main house.Maria was inside the main house, and Appellant was in his pickup listening to music and drinking beer.Appellant had parked his pickup near the back house, with the front of the pickup facing the farm-to-market road.

Shortly after arriving at Maria’s, Bernie received a call from Nichole.Nichole told Bernie that Bernard was on his way to Maria’s house.Bernie testified that Nichole was crying and apologizing to Bernie for her father.Nicholas noticed Bernie acting "[w]orried [and] scared" while on the phone.

Bernard quickly pulled into Maria’s property while Bernie was standing outside and on the phone with Nichole.Bernie testified that Bernard pulled into the driveway in front of the main house, almost hitting Bernie in the process.Nicholas and Gregorio testified that Bernard parked towards the side of the main house.

Bernard got out of his pickup and began yelling at Bernie.Nicholas testified that Bernard told Bernie he needed to pay for the car, and that when Bernie told Bernard he did not want any "problems," Bernard responded, "we’re going to have problems because of what you did."Bernie testified that Bernard threatened to "kick [Bernie’s] a-s."Gregorio tried to deescalate the situation, but Bernard hit Bernie in the face.Bernie testified that he fell into the tree in front of the main house, and that Gregorio was holding Bernard down and was telling him to calm down by the time Bernie got up.

Gregorio testified that he"threw Bernard to the ground" and that Bernard was hitting him and attempting to flip him over.Bernie and Nicholas began hitting Bernard while Gregorio had him on the ground because Bernard was biting Gregorio in the chest.Nicholas testified that Gregorio then let Bernard get up and told him that "it didn’t need to be like this, they could have came [sic] and talked and a fight didn’t have to break out, talk to him like real men."

Bernard went back to his pickup, grabbed something, and approached Bernie.Nicholas testified that he saw Bernard grab an "object," but could not tell what he was holding.Bernie and Gregorio testified that Bernard was holding a knife, and Bernie described it as a pocketknife with a gray and black handle.Bernie testified that he challenged Bernard to "come on, stab me, m----------r."Bernie testified that Bernard only pointed the pocketknife at him, but Nicholas and Gregorio testified that Bernard lunged at Bernie.Gregorio told Bernard not to stab his son.Maria was "[s]creaming hysterically" on the porch.

Bernie is the only person who testified that Appellant was close enough to the fight to speak to Bernard when he had the pocketknife out.Bernie testified that Appellant told Bernard to "[g]et out of here m----------r," to which Bernard responded "[n]o, I’m going to kill these m----------s, they jumped me."Bernie testified that Appellant then walked towards the back house to get his firearm.

Bernie grabbed a brick and attempted to throw it at Bernard, but Gregorio hit the brick out of his hand.Bernard walked back to his pickup and said that he had "more people coming" to Maria’s property.Bernie testified that Bernard said the Gonzalez family was going to "pay for what [they] did to him."

Bernard reversed his pickup out of Maria’s property and onto the farm-to-market road.Bernie picked the brick up again and threw it at Bernard’s pickup.Testimony differed as to whether Bernard was driving away or already parked on the road when Bernie threw the brick.²Bernard stepped out of his pickup and threw the brick back at Bernie.Nicholas and Bernie testified that the brick bounced off the property fence and hit Bernie in the eye.

After Bernard threw the brick back, he and Bernie began fighting again by the property gate.Nicholas testified that Bernard was bigger than Bernie, and it looked like Bernard was "winning" the fight.Bernie testified that he was trying to shield his face from Bernard hitting him and...