Lopez v. State

• Court: Texas Court of Appeals
• Writing for the Court: Opinion by Justice Longoria
• Citation: Lopez v. State, 672 S.W.3d 915 (Tex. App. 2023)
• Docket Number: NUMBER 13-22-00171-CR
• Decision Date: 06 July 2023
• Parties: Justin David LOPEZ, Appellant, v. The STATE of Texas, Appellee.

672 S.W.3d 915

Justin David LOPEZ, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-22-00171-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed July 6, 2023.

Discretionary Review Refused November 15, 2023

ATTORNEY OF RECORD FOR THE APPELLANT: John Lamerson, The Lamerson Law Firm, P.O. Box 241, 405 N. Tancahua, Corpus Christi, TX 78403.

ATTORNEYS OF RECORD FOR THE APPELLEE: Pamela E. Guenther, Douglas K. Norman, Special Prosecutor, Jackson County District Attorney, 115 W. Main, Ste. 205, Edna, TX 77957.

Before Justices Benavides, Longoria, and Tijerina

Opinion by Justice Longoria

Appellant Justin David Lopez was found guilty by a jury for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02. The jury sentenced appellant to life imprisonment. By five issues which we reorganize and re-number as four, appellant claims that (1) the evidence was legally and factually insufficient to support his conviction; (2) he was denied his right to due process and right to a jury trial because the verdict was not unanimous; (3) the trial court abused its discretion in denying his motion to reduce bail; and (4) his trial counsel provided ineffective assistance. We affirm.

I. FACTUAL BACKGROUND

The evidence at trial demonstrated that around midnight on November 4, 2019, Jacob Hernandez slowly drove his father's gray Ford truck, with Monica Luna, down Ward Street in Edna, Texas. The truck's windows were fully open and loud music played as Jacob stopped the truck in front of Jose David Lopez Jr.’s¹ residence. At the time, Jose was drinking beer in his front yard with others. Jose approached the truck and an altercation ensued. Jacob and Jose yelled profanities at each other, spat at each other, and threw items at each other before Jacob drove away.

In the early morning hours of November 5, 2019, Angel Lozano had phone conversations with Jose. According to Lozano, Jose wished to fist fight Jacob at his home. According to Jose, it was Jacob who wished to fight.

Subsequently, Lozano, Jacob, Jacob's brother Eric Hernandez, Sabas Reynaldo Mosqueda, James Andrew Guerra, and Isaac Andre Ybarra gathered in Eric's red Nissan truck; Lozano drove to Jose's home. After Lozano parked in front of Jose's driveway, Ybarra exited Eric's truck and walked towards Jose. The others in the truck also exited. Shortly after, appellant ran up to Ybarra, pointed a firearm within inches of his face, then shot Ybarra. Ybarra fell to the ground. According to Lozano, appellant pointed his gun at him and Mosqueda and stated, "Y'all want some, too." According to Mosqueda, appellant stated, "You bitch ass want some[,] too." Immediately thereafter, Lozano, Jacob, and Eric got back into Eric's truck and drove away. At the same time, Mosqueda and Guerra ran away from Jose's residence on foot. According to Mosqueda, appellant thereafter got into a car and drove off.

Officer Stacy Cavazos of the Edna Police Department and Deputy Jorge Franco of the Jackson County Sheriff's Department simultaneously arrived at Jose's residence around 1 a.m. Franco secured the scene while Cavazos attended to Ybarra, who had a gunshot wound on his face originating at his left eye. Ybarra was non-responsive, and an ambulance arrived minutes later. Cavazos took photos of Ybarra, which were admitted into evidence. The photos depict Ybarra as he lay face-up on the road in front of Jose's residence, his head resting in a pool of blood. Ybarra was later pronounced dead by a justice of the peace.

Appellant was not present at the scene when police arrived. Police did not find a firearm or spent ammunition casings at the scene or inside Jose's home.² An autopsy of Ybarra was performed by a Travis County medical examiner. According to the medical examiner, Ybarra's death was a homicide, and the cause of death was a gunshot wound in his left upper eyelid.

Lozano testified that he saw appellant's face the night of the shooting and knew him only as ‘Justo’ and that he picked ‘Justo’ out of a photo array provided by Texas Ranger John Lingle. Likewise, Lingle testified that he made a note in the photo array provided to Lozano that indicated he was "90-percent certain that [appellant] was the person that [Lozano] had witnessed shoot Isaac Ybarra." The photo array was admitted into evidence at trial. Further, Lozano made an in-court identification of appellant as the shooter. In his testimony, Mosqueda identified appellant as the shooter and stated that he recognized appellant's voice when appellant spoke after shooting Ybarra. A warrant for appellant's arrest was filed on November 6, 2019. According to Lingle, appellant was arrested by US Marshalls in Laredo, Texas on January 10, 2020.

II. PROCEDURAL BACKGROUND

Appellant was indicted for one count of murder, three counts of aggravated assault, and one count of manslaughter. The murder count contained six paragraphs alleging six alternate manner and means in committing the offense. The indictment also alleged that appellant was a habitual offender based on four prior felony convictions: aggravated assault of a deadly weapon, judgment rendered on January 6, 1998; aggravated assault with a deadly weapon; possession of a prohibited substance in a correctional facility; and tampering with physical evidence, all judgments rendered on November 30, 2010. See TEX. PENAL CODE ANN. § 12.42(d) (setting punishment range at imprisonment for twenty-five to ninety-nine years or life for habitual offenders with two prior felony convictions). Prior to voir dire, the State abandoned three of the alternative manner and means of the murder charge, all three counts of aggravated assault, and the manslaughter charge.

Appellant was tried for one count of murder, consisting of three alternate manner and means under the indictment: (1) intentional murder, Count 1 paragraph 1, see id. § 19.02(b)(1); (2) committing an act clearly dangerous to human life with intent to cause seriously bodily injury, Count 1 paragraph 2, see id. § 19.02(b)(2); and (3) felony murder, Count 1 paragraph 5, see id. § 19.02(b)(3). Specifically, the indictment alleged in relevant part as follows:

... [Appellant] ... did then and there

COUNT 1

Paragraph 1 (Murder Intending Death)

intentionally or knowingly cause the death of an individual, namely Isaac Andre Ybarra, by shooting the said Isaac Andre Ybarra with a firearm.

Paragraph 2 (Murder Intending SBI)

... [Appellant,] did then and there with intent to cause serious bodily injury to an individual, namely, Isaac Andre Ybarra, commit an act clearly dangerous to human life, to-wit: by shooting the said Isaac Andre Ybarra with a firearm, thereby causing the death of the said Isaac Andre Ybarra.

....

Paragraph 5 ([Felony Murder]—Agg. Assault Threaten DW)

... [Appellant,] did then and there commit an act clearly dangerous to human life, to-wit: shooting Isaac Andre Ybarra with a firearm, that caused the death of the said Isaac Andre Ybarra, and the defendant was then and there in the course of intentionally or knowingly committing or attempting to commit a felony, to-wit: Aggravated Assault with a Deadly Weapon:

1. By intentionally and knowingly threatening another, namely Isaac Andre Ybarra, with imminent bodily injury by pointing a firearm in the direction of the said Isaac Andre Ybarra, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault; or

2. By intentionally and knowingly threatening another, namely Isaac Andre Ybarra, with imminent bodily injury by threatening to shoot the said Isaac Andre Ybarra, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault

Further, the death of Isaac Andre Ybarra was caused while the defendant was in the course of and in furtherance or [(SIC)], or in immediate flight from, the commission or attempt to commit the felony of Aggravated Assault with a Deadly Weapon.

Each paragraph in the indictment tracked the statutory language contained in the relevant subsections of the murder statute. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), (b)(2), (b)(3). The trial court's charge permitted the jury to find appellant guilty of murder if it found beyond a reasonable doubt he committed murder by one of the three alternate means as charged in the indictment and not abandoned by the State. The jury returned a general verdict finding that appellant was " ‘Guilty’ of the offense of the Murder of Isaac Andre Ybarra as alleged in Count 1, paragraphs 1, 2, or 5 of the indictment."

During the punishment phase, the jury found the habitual offender enhancement allegations true and sentenced appellant to life imprisonment in the Correctional Institutions Division of the Texas Department of Criminal Justice. See id. § 12.42(d). This appeal followed.

III. SUFFICIENCY

In his first issue, appellant argues that the evidence was legally and factually insufficient to support his murder conviction. The Texas Court of Criminal Appeals has held that only one standard should be used to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency. Brooks v. State , 323 S.W.3d 893, 905–07 (Tex. Crim. App. 2010) (plurality op.). Accordingly, we will apply the legal-sufficiency standard when addressing appellant's legal-sufficiency and factual-sufficiency arguments. Id.

A. Standard of Review & Applicable Law

"In reviewing the sufficiency of the evidence to support a conviction, we consider the evidence ‘in the light most favorable to the verdict’ to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

Delagarza v. State , 635 S.W.3d 716, 723 (Tex. App.—Corpus Christi–Edinburg 2021, pet. ref'd) (quoting Stahmann v. State , 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) ); see Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We consider both direct and...