Hinojosa v. State

Decision Date20 August 2014
Docket NumberNo. 04–12–00854–CR.,04–12–00854–CR.
Citation433 S.W.3d 742
PartiesRomeo HINOJOSA, Appellant v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals


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

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



Opinion by: PATRICIA O. ALVAREZ, Justice.

Appellant Romeo Hinojosa filed a motion for rehearing alleging error in this court's opinion. Specifically, Hinojosa complains of factual assertions contained within the opinion. This court's opinion and judgment dated March 5, 2014 are withdrawn. This opinion, clarifying the factual assertions and reasonable inferences therefrom, and judgment are substituted in its stead. Hinojosa's motion for rehearing is denied.

Brief Overview

Appellant Romeo Hinojosa, along with co-defendants Carlos Zambrano and Abraham Linares, was charged with second-degree aggravated assault with a deadly weapon and first degree aggravated kidnapping of Nestor Abundez. Hinojosa was charged as a primary actor and as a party to the offense. Hinojosa was found guilty on the aggravated kidnapping and not guilty on the charge of aggravated assault with a deadly weapon. The jury assessed punishment at fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000.00 fine on the aggravated kidnapping charge.

On appeal, Hinojosa argues (1) the evidence is legally insufficient to prove that Hinojosa committed the offense of aggravatedkidnapping because there was no evidence that Nestor Abundez was secreted; (2) the evidence presented at trial is insufficient based upon a variance between the offense alleged in the indictment and the jury charge; and (3) the State's comments during closing argument were improper and outside the scope of permissible jury argument and violated his right to a fair trial. We disagree and affirm the judgment of the trial court.

Factual Background 1

A. The Arrest

At approximately 2:00 a.m., on May 2, 2011, Webb County Deputy Gerard Pecina was patrolling Highway 359 when he witnessed a green Expedition SUV traveling in excess of the marked speed limit. Deputy Pecina proceeded to follow the SUV into a subdivision, and ultimately initiated a stop. The SUV eventually came to a stop at a Valero gas station. Deputy Pecina testified that Hinojosa, the driver of the SUV, immediately exited the vehicle and began to approach Deputy Pecina's vehicle. When Deputy Pecina demanded identification, a very nervous Hinojosa provided a Texas identification card. Based on Hinojosa's edginess, Deputy Pecina ordered Hinojosa to wait by the front of the vehicle while Deputy Pecina attempted to identify the three other individuals in the SUV—Zambrano, Linares, and Abundez.

Sergeant Sanchez testified that when he arrived to assist Deputy Pecina, Hinojosa was already in the back of Deputy Pecina's vehicle. Pat-downs were conducted on the other men. Before starting the pat-down on Abundez, however, Abundez informed Deputy Pecina that he did not know the other individuals and that they had kidnapped him with a gun.2 Deputy Pecina testified that Abundez appeared scared, frightened, and nervous. Sergeant Sanchez separated Abundez from the others and placed him in the back of his patrol car. Abundez then related to Sergeant Sanchez what happened, including being taken from his residence at gunpoint, that the firearm was thrown from the SUV by one of the men, and where it was thrown. Deputy Pecina headed to the location where the gun was allegedly thrown and found a weapon, a loaded handgun magazine, and a gray-colored cell phone.

Zambrano, Hinojosa, and Linares were placed under arrest for the aggravated kidnapping of Abundez. Zambrano, Linares, and Hinojosa, were each charged with second-degree aggravated assault with a deadly weapon and first-degree aggravated kidnapping. All three individuals were tried together and the jury trial began on Monday, October 15, 2012.

B. The Trial1. Nestor Abundez's Testimony

The State's first witness was Abundez. Abundez testified that about 1:00 a.m. on May 2, 2011, he and his family, along with his brother's family, were at his house in Laredo, Webb County, Texas. Abundez testified that he went outside to investigate loud noises and saw a white Ford truck and two individuals honking the horn. When Abundez's wife walked outside their home with Abundez's cell phone, Abundez took the phone and instructed her to return to the house. Although he had never seen the two men before, Abundez walked towards the truck. According to Abundez, once he approached the truck, Zambrano struck him in the head with the handle of the pistol and then forced him into the vehicle. Although Abundez testified that Zambrano and Linares referred to the driver as “the cousin,” he could not identify the individual driving the truck. At some point during the evening, Abundez was transferred to the Expedition. Abundez was able to identify Hinojosa as the driver of the Expedition. Abundez testified that while Hinojosa drove, Zambrano held a gun to him.

Abundez further testified that Zambrano, Linares, and Hinojosa were apparently looking for another individual named Pelon, a nickname for someone who is bald. Abundez, who was also bald, explained that he and his family had only lived in the house for a short period of time and to his knowledge, a person called Pelon lived in the house prior to Abundez.

During cross-examination, defense counsel suggested Abundez knew the two assailants and that all three men went to Linares's house to party and smoke marijuana when a fight broke out. Abundez denied knowing any of the individuals involved in the incident. After questioning by defense counsel, Abundez acknowledged he had his cell phone prior to Zambrano and Linares taking it, but explained that he was too nervous to call anyone or use the phone. Defense counsel also argued the weapon actually belonged to Abundez and that it was thrown from the Expedition by Abundez. Abundez, however, denied owning or throwing the firearm located by Deputy Pecina.

2. Christian Abundez's Testimony

Abundez's brother, Christian Abundez, testified that after seeing his brother forced into the white truck, he grabbed his keys and started chasing the truck. At some point, the truck stopped at a creek and both Linares and Zambrano exited the vehicle. According to Christian, Linares hit him (Christian) in the back and Zambrano threatened him with a gun. Christian also testified a third person was driving the truck, but he could not identify the driver of the truck or how many men were in the truck. At Abundez's request, Christian left to find their older brother, Jose.

Once Christian found Jose, they went back to the creek but no one was there. After driving around the area trying to find Abundez, they saw the commotion at the gas station. When questioned by defense counsel, Christian acknowledged seeing the same white truck, which had been in front of Abundez's residence and the one he had chased earlier, at the gas station, but did not notify the officers.

3. Sergeant Rolando Elizalde's Testimony

Although none of the defendants testified at trial, Sergeant Rolando Elizalde Jr. testified about the defendants' interviews taken shortly after their arrest.

With regard to Hinojosa's interview, Sergeant Elizalde testified Hinojosa told him that he was awakened by Linares, his son-in-law, at approximately 1:00 a.m. Hinojosa explained he was simply driving Linares and Zambrano around because he did not want Linares to get a ticket for the dark tint on his vehicle. Hinojosa also relayed that he did not know Abundez's name or anything about him and that the other men called him “mojadito” or wetback. During cross-examination, Sergeant Elizalde acknowledged that Hinojosa seemed surprised the three were being held on kidnapping charges and asked the officer whether it was the “mojadito” that was making the allegation. Hinojosa also described the others as drunk.

While interviewing Hinojosa, Sergeant Elizalde observed that Hinojosa was very calm, but extremely concerned that his wife have access to the impounded truck so that she could be at work the following day. According to Sergeant Elizalde, it appeared to him that Hinojosa was more concerned about his truck being impounded than with the kidnapping charges.

Sergeant Elizalde next relayed specifics about his interview with Linares. Sergeant Elizalde testified that Linares told him that they had been partying, that they went and picked [Abundez] up and they were partying.” In contradiction to Hinojosa's statement, Sergeant Elizalde interpreted Linares's statement to mean that Hinojosa, Zambrano, and Linares had gone to pick up the victim together. As to his presence at the gas station, Linares explained they were meeting another person at the gas station and that Abundez had only been with them for a short period of time when they were stopped by the deputy.

Sergeant Elizalde further testified that immediately after beginning the interview, Linares told the officer that he was a confidential informant for other officers and that he wanted to talk in exchange for a “deal.” Sergeant Elizalde described Linares as fidgety, always moving his legs, and at times crying. During testimony, Sergeant Elizalde described Linares as “look[ing] like a drug addict, fidgety and nervous.”

Based on Linares's statement, Sergeant Elizalde testified that he requested a patrol officer travel to the area identified by Linares as the location of the party. But once there, the officer did not find any evidence that a party had taken place. Sergeant Elizalde further explained that he even went back to the area the following day, but he likewise did not see any evidence suggesting a party.


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