Villarreal v. State, No. 13-07-00558-CR (Tex. App. 1/15/2009)

• Decision Date: 15 January 2009
• Docket Number: No. 13-07-00558-CR.,13-07-00558-CR.
• Citation: Villarreal v. State, No. 13-07-00558-CR (Tex. App. 1/15/2009), No. 13-07-00558-CR. (Tex. App. Jan 15, 2009)
• Parties: JOHNNY OSCAR VILLARREAL, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

JOHNNY OSCAR VILLARREAL, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-07-00558-CR.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed January 15, 2009.

Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 156th District Court of Bee County, Texas.

Before Justices RODRIGUEZ, GARZA, and VELA.

MEMORANDUM OPINION

Memorandum Opinion by Justice GARZA.

Appellant, Johnny Oscar Villarreal, was charged by indictment with one count of murder and one count of engaging in organized criminal activity. See Tex. Penal Code Ann. 19.02(b)(1) (Vernon 2003), 71.02(a)(1) (Vernon Supp. 2008). The jury found appellant guilty of both offenses, and the trial court assessed concurrent life sentences in the Institutional Division of the Texas Department of Criminal Justice ("TDCJ") with no fine.¹ By four issues on appeal, appellant contends that: (1) the evidence adduced at trial was legally and factually insufficient to sustain his convictions; (2) the trial court erred in denying his entrapment defense; (3) the prosecutor engaged in prosecutorial misconduct by asking leading questions and referencing pre-drawn diagrams, contravening the trial court's instructions; and (4) the trial court erred in admitting evidence of his extraneous offenses.² We affirm.

I. Factual and Procedural Background

On October 5, 2006, a Bee County grand jury indicted appellant for murder and engaging in organized criminal activity. See id. §§ 19.02(b)(1), 71.02(a)(1). The indictment provided that:

And it is further presented in and to said Court that deadly weapons, to wit: a gun and a knife, was [sic] used or exhibited during the commission of the aforesaid offense and that the Defendant used or exhibited said deadly weapons or was a party to the aforesaid and knew that deadly weapons would be used or exhibited . . .

Moreover, the indictment contained an enhancement paragraph referencing appellant's previous conviction for felony aggravated assault.

1. State's Evidence

The State called several witnesses to opine on the events leading up to, during, and after the murder of Donald Bonham. On the evening of April 17, 2005, Bonham attended a dance at the Chick-a-Saw Club (the "Club") in Beeville, Texas. Bonham, an ex-member of the Hermandad De Pistoleros Latinos ("HPL") gang, had recently been released from prison, where he was serving time for transporting illegal aliens.³ Molly Cox, a bartender at the Club, recalled seeing Bonham arriving at the Club at around 11:00 p.m. and wearing a cowboy hat. Cox remembered that Bonham appeared to be in a happy mood and that they discussed Bonham doing some carpentry work at her house. Cox recalled that Bonham danced with two girls and spoke to someone "at the end of the pool table." At the Club's closing time, Bonham asked Cox if he could leave out the back door; she denied his request, stating that the back door was for employees only.

Another patron of the Club, Joann Medellin, observed that on the night of the incident, several men would occasionally go into the restroom together. This appeared odd to Medellin because "you don't usually see boys going—men going into the bathroom at the same time." As she was leaving the Club, Medellin heard gunfire and saw people running towards the back of the Club. She observed a man—Bonham—fall down, and she immediately ran inside the Club to call for help. Medellin, being licensed in CPR, then went to see if Bonham needed help. As she was helping Bonham, she observed a white van rapidly take off out of the Club's parking lot.

Ruben Maddy Aleman, an admitted HPL member, testified that he was convicted of murder and organized crime for his role in the killing of Bonham.See generally Aleman v. State, No. 13-07-0049-CR, 2008 Tex. App. LEXIS 2938 (Tex. App.-Corpus Christi Apr. 24, 2008, pet. ref'd) (mem. op., not designated for publication). Ruben stated that he had known appellant since 1989 and that appellant was the leader of the HPL at the time of Bonham's murder. Ruben then recalled a previous incident where he was convicted of public intoxication. In that incident, Ruben attended a bar function with appellant, and appellant directed him and another HPL member to "take care of some business" outside. Prior to going outside, appellant offered Ruben a black .25 caliber handgun; however, Ruben told him that he did not need a gun. Subsequently, a fight ensued, and Ruben was arrested for public intoxication.

As to the night in question, Ruben testified that he accompanied others, including his nephew John Phillip Aleman, to a dance at the Club. Ruben remembered that the Club was quite crowded that evening and that appellant attended with his wife and Joe Quin Villarreal, among others. Appellant later asked Ruben if he wanted to "take out" Bonham. Ruben declined, so appellant then went to the restroom. Joe Quin and John Phillip accompanied appellant in the restroom. Ruben also followed the group into the restroom and observed appellant trying to give an old 22 caliber pistol, referred to as the "ugly duckling," to John Phillip. Ruben recognized this handgun as Joe Quin's. Upon seeing John Phillip accept the gun from appellant, Ruben took it and gave it back to appellant. Ruben did not want John Phillip getting involved; however, John Phillip subsequently made repeat trips to the restroom to meet with appellant.

As he left the Club, Ruben noticed that appellant, Joe Quin, John Phillip, and Bonham were already fighting. Bonham screamed out for Ruben to help while appellant and Joe Quin were hitting him repeatedly. Ruben then saw appellant and John Phillip stab Bonham with knives. John Phillip used a hook knife to stab Bonham; Ruben did not believe that appellant's knife was left at the scene. Ruben intervened to help Bonham, but Ruben ended up getting cut on his lip by Bonham. Ruben recalled that Bonham was wearing the cowboy hat that was found at the scene. Ruben tried to help Bonham flee, but they tripped and Bonham fell on top of Ruben. As he was falling, Joe Quin shot Bonham. After Ruben pushed Bonham off of him, Joe Quin shot Bonham a second time. Ruben then saw appellant run from the scene and get into a white van.⁴

Contrary to appellant's allegations, Ruben denied bragging about his participation in the murder of Bonham. Ruben also denied appellant's assertion that Ruben took it upon himself to "take out" Bonham without any direction from appellant.

Joe Quin testified that he participated in the murder of Bonham. Joe Quin was told by several HPL members that appellant was the leader of the HPL in the Beeville area. Joe Quin first met appellant at a barbecue in 2005. Shortly thereafter, Joe Quin began selling marihuana for appellant. Joe Quin sold the marihuana for over a year even though he still was not a member of the HPL. Eventually, Joe Quin was made a member of the HPL after appellant and appellant's brother read him the rules and regulations of the HPL.

On the night of Bonham's murder, Joe Quin stated that he went to the Club for a tejano dance. He planned to meet up with appellant and other HPL members. Once appellant arrived, he instructed Joe Quin to keep an eye on Bonham to make sure that Bonham did not leave. Appellant later told Joe Quin that "we had to get this guy [Bonham], that we had to take him out" and provided Joe Quin with the gun used to shoot Bonham. Joe Quin testified that appellant kept all the guns for the HPL members to ensure that "we were always ready for something." Prior to the Club's closing, Joe Quin met with appellant and John Phillip in the restroom. Joe Quin noted that appellant first instructed John Phillip to take Bonham out, but John Phillip refused to do so. Appellant then gave Joe Quin the 22 caliber pistol and told him that he "was next in line to show [his] true colors" and that by taking Bonham out, it was his "ticket to get all the way in." Joe Quin subsequently took the gun from appellant.

Per appellant, Joe Quin was to first provoke Bonham to get him to go outside the Club. Joe Quin told Bonham that he had "a very personal problem about him [Bonham] and that we have to take care of it." Bonham did not know Joe Quin, but he met Joe Quin outside a few minutes later. Once Bonham got outside, Joe Quin called him over to some trees that surrounded the Club. Shortly thereafter, appellant and several other gang members came outside and "rushed" Bonham. Joe Quin noticed that appellant's wife went to position the white van for a quick getaway. He also heard Ruben scream after getting cut and saw appellant holding Bonham's arm while others were stabbing Bonham. Appellant then instructed Joe Quin "[t]o do [his] job." While standing over Bonham's body, Joe Quin shot Bonham twice. Joe Quin then saw appellant run towards the white van and take off.

Joe Quin testified that he observed that appellant had a knife that night. Appellant called Joe Quin the next day to ask if he "was okay, if I had been cut or anything, if I had talked to anybody, if I had stashed the gun, if I wanted to go into town, if I wanted to hide out or anything." Joe Quin was eventually arrested and convicted for his role in the murder of Bonham.

Officer Jason Alvarez, Sergeant Mike Willow, and Sergeant Kevin Behr conducted the investigation of the crime scene. They recovered two knives outside the Club: a brown-handled knife and a silver hooked knife. They also found .22 caliber brass casings in the roadway by the Club, a cell phone, and a cowboy hat.⁵ Standard police protocol was followed in the collection of the evidence. Each testified that there was significant amounts of blood at the crime scene, but no eyewitnesses came forward to describe the attack or to identify appellant. The knives and the brass casings were sent off for analysis; however, tests conducted on the items were inconclusive.

Lieutenant Reagan Scott, a narcotics investigator, testified that he...