Romero v. State, No. 08-05-00005-CR (Tex. App. 8/24/2006)
| Decision Date | 24 August 2006 |
| Docket Number | No. 08-05-00005-CR.,08-05-00005-CR. |
| Parties | SAUL ROMERO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 168th District Court of El Paso County, Texas, (TC# 20040D00902).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
This is an appeal from jury convictions for three counts of aggravated assault with a deadly weapon, (Counts One through Three), and one count of deadly conduct (Count Four). The jury assessed punishment at fifteen years' imprisonment and a $5,000 fine on Count One, five years' imprisonment and a $2,000 fine on Count Two, two years' imprisonment and a fine of $2,000 on Count Three, and eight years' imprisonment and a fine of $5,000 on Count Four. We affirm the judgment of the trial court.
Prior to trial, Appellant objected to the anticipated evidence that Appellant had given a sum of money to one of his companions to buy cocaine from Sidina Mobley who was nicknamed "Precious." Appellant wanted to avert any mention of a drug deal. On the day of trial, the court ruled that the State could refer to activities that led up to searching for Mobley, but could not refer to the possible use of counterfeit money or cocaine. Appellant argued that even with these restrictions, the evidence was more prejudicial than probative. The court overruled this objection.
The offenses involved were alleged to have occurred on or about December 2, 2003 in El Paso County, Texas. Around that date, Sergio Diaz testified that he picked up Appellant between 5 p.m. and 6 p.m. to go to a house were a woman named Monica lived. Diaz characterized Monica as being Appellant's wife.1 Diaz, Appellant, and an individual named Victor Devora were in the car. When they arrived at the house, they picked up Monica's brother, Jose Borjon, known as "Junior." They drove to a store to meet up with some of Junior's friends in order to buy what was characterized as "product" at trial. After going to various stores and a fast food outlet, they stopped at a Wendy's restaurant. Junior had changed vehicles and was in a tan Explorer. They parked on one side of the restaurant and Junior went to the other side to get the product. He phoned back to the car that a girl was walking to their side, she had the money, and she was going to get the product. Diaz saw her get into a blue BMW and leave. He described the girl as being black. They were unable to follow the car, and they returned to the Wendy's to get Junior. It became apparent to Diaz that Appellant's money was used to try to purchase the product. Junior and Appellant were arguing and Appellant was upset with Junior that the girl had left without providing the product. They continued the search to no avail.
They drove to Diaz' house and changed cars. They drove off in Diaz' red Mustang. They went to Appellant's house were he got a gun. Appellant had the gun tucked into his pants and covered with his shirt. Appellant got into the car and stated that he was going to scare the people in the BMW in order to get the money back. Monica called and they met her at a bar called Tequila Sunrise. The BMW was there and Appellant spoke to two individuals who were friends with Monica. They agreed to follow the BMW when it left the bar. Diaz, Appellant, Junior, and Devora waited at Monica's house to hear from the individuals in the white car. They got a call and they went to the stated location. Diaz was driving the Mustang, Appellant was in the passenger's seat, Junior was behind Appellant, and Devora was seated behind Diaz. They saw the white car blocking the BMW at a stop sign. Someone got out of the BMW and threw a can at the white car. Diaz drove up next to the BMW and started driving side-by-side. He heard gunshots and he saw that the windows in the BMW were shot out and it was swerving. Diaz saw Appellant get back into the car from the window. He had the gun in his hand. Appellant threw the gun out of the window. They proceeded to Monica's house, and Devora took Diaz' car back to his house, and Appellant took Diaz home in Monica's truck.
Victor Devora testified that on the day of the shooting, Sergio Diaz came by and took him out to eat. They drove to a Burger King restaurant. Devora, Sergio Diaz, Appellant, and Junior were in a white Honda. At the restaurant, Devora went inside to eat and the others remained outside. Later, Devora met up again with the same individuals. Appellant appeared angry, and Junior seemed worried. Appellant asked Junior "why had he given it to him" or her.
Devora and the others drove to some apartments, strip clubs, and bars, and then went to pick up a red mustang belonging to Diaz' mother. They then went to Appellant's house. Only Appellant went inside, and Devora was unaware of why Appellant went into the house. They then proceeded to the Tequila Sunrise bar. There, Appellant and a woman Devora knew as being Appellant's wife waited in the parking lot for the arrival of someone. Devora joined them as they stood with two other individuals in front of a white car. They then went to Junior's house for a phone call. After receiving a call, they went to a location where the white car and the BMW were stopped at a traffic light. Diaz was driving, Appellant was in the front passenger seat, Devora was seated behind the driver, and Junior was behind the Appellant. The Mustang traded places with the white car behind the BMW. After initially losing sight of the BMW, they came across the BMW and the white car. Someone from the BMW was fighting someone from the white car. The BMW took off leaving its passenger behind. The Mustang pulled up on the right side of the BMW. Devora saw Appellant put his hand out the window and start shooting. He bent down and did not see anything else. He did not think Junior was shooting. He never actually saw a gun.
They went back to Junior's house, and Devora asked if he could take the Mustang in order to go home. He took it to Diaz' house and then went home. He did not talk to the others afterward about the incident as he was afraid of them. He did not know anyone in the car had a gun, and he was not involved in the shooting. He was never arrested for the offense.
Regina Lauren Rendon testified that she was Jose Borjon's (Junior's) girlfriend. Appellant was Monica Borjon's boyfriend and Rendon knew Appellant from that connection. Earlier in the day of the shooting, she was helping Monica move into her father's house. Junior was assisting. Later, Appellant and Diaz and Devora came to help. Those three left and returned later. While she did not understand Spanish, she was able to discern that Junior wanted to find a girl named "Precious" because Appellant's money had been taken. Rendon and Monica went to the Tequila Sunrise bar and obtained what she referred to as "product." Monica spoke to an individual named Eric who was driving a white car. Rendon and Monica were looking for a BMW because someone named "Precious" was in the vehicle. The two then returned to Monica's house.
Leslie Saenz testified that on the day of the shooting, she was in the process of moving. Rick Gomez, Sidina Mobley, and Rick Dominguez, who was known as "Watts," were helping her. Sidina's nickname was "Precious." Mobley persisted in saying that she wanted to go eat. After dropping off a load in the U-Haul truck, they stopped at a McDonald's restaurant. Mobley got out of the car to make a phone call. She then walked to a nearby Wendy's restaurant.
When they returned to the house, Mobley went into another room to talk on her phone and the phone kept ringing all night. They returned the U-Haul truck and they went out to eat. Mobley told Saenz that she was afraid to go home and she asked the others if she could spend the night with them. She received a negative answer. They then went to the Tequila Sunrise bar to get one beer. Mobley "went crazy" buying drinks for everyone. She was trying to go out with some men so that she could stay with them.
When they left the bar, it was their intention to go back to Saenz' house to get Rick Dominguez' car in order to proceed to Gomez' house. Gomez was driving the BMW, Saenz was in the passenger's seat, Mobley was behind her, and Dominguez was behind the driver. Gomez stated that he thought someone was following them. While Gomez made a turn, a white car almost ran into them. Someone was hanging outside the passenger side window. Saenz stated that she was intoxicated and she did not know how many people were in the other car. It appeared that rocks were being thrown. Dominguez jumped out of the car. Gomez stated that someone was shooting at them. Gomez released Saenz' seatbelt and pushed her head down. A bullet came into the car, grazed Saenz' head, and hit Gomez. Gomez accelerated, but he had been paralyzed, and he needed Saenz' help to stop the car. They narrowly avoided hitting some gas pumps at a convenience store. A woman at the store called the police. Saenz was unable to identify anyone with a gun.
Rick Dominguez also helped Saenz to move. After they finished moving, Dominguez, Saenz, Mobley, and Gomez went to eat. They then went to the Tequila Sunrise bar for a drink. Mobley kept on buying them all drinks. She did not want to go home. When they left the bar, Dominguez saw a white car driving by on the opposite side of the street and someone was hanging out the passenger-side window. Someone in the white car threw something at the car Dominguez and his friends were in. Gomez stopped and Dominguez got out of the car. Gomez drove off and four individuals got out of the white car. Dominguez jumped over a wall to escape them. The individuals in the white car left. Dominguez had no reason to believe that anyone was after him or the others.
Ricardo Gomez testified that he also helped Saenz move. When they had returned the U-Haul truck, they all went out to eat and...
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