                                                                       ACCEPTED
                                                                  04-14-00682-CR
                                                       FOURTH COURT OF APPEALS
                                                            SAN ANTONIO, TEXAS
                                                             3/30/2015 4:19:58 PM
                                                                    KEITH HOTTLE
                                                                           CLERK

             NO. 04-14-00682-CR

   IN THE COURT OF APPEALS FOR THE           FILED IN
                                      4th COURT OF APPEALS
       FOURTH DISTRICT OF TEXAS        SAN ANTONIO, TEXAS
           SAN ANTONIO, TEXAS         3/30/2015 4:19:58 PM
       ______________________________   KEITH E. HOTTLE
                                               Clerk
              BENITO GARZA,
                 Appellant

                       v.

          THE STATE OF TEXAS,
                 Appellee
      ______________________________

ON APPEAL FROM THE 187th DISTRICT COURT
       OF BEXAR COUNTY, TEXAS
         CAUSE NO. 2013-CR-9168
      ______________________________

          BRIEF FOR THE STATE
      ______________________________

       NICHOLAS “NICO” LAHOOD
         Criminal District Attorney
           Bexar County, Texas

               LAURA E. DURBIN
     Assistant Criminal District Attorney
             Bexar County, Texas
             Paul Elizondo Tower
             101 W. Nueva Street
           San Antonio, Texas 78205
   Phone: (210) 335-2411 Fax: (210) 335-2436
            State Bar No. 24068556

        Attorneys for the State of Texas

       ORAL ARGUMENT WAIVED
                         Identity of Parties and Counsel


        Pursuant to TEX. R. APP. P. 38.2(a), the appellee supplements the appellant’s
list of parties as follows:

APPELLATE STATE’S                              Laura E. Durbin
ATTORNEY                                       Assistant Criminal District Attorney
                                               Paul Elizondo Tower
                                               101 W. Nueva Street
                                               San Antonio, Texas 78205
                                               State Bar No. 24068556
                                               laura.durbin@bexar.org
                                               (210) 335-2411




                                          ii
                                                Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Authorities ................................................................................................. iv
Statement Regarding Oral Argument ........................................................................1
Statement of the Case.................................................................................................1
Statement of the Facts ................................................................................................1

Appellant’s First Point of Error: ...............................................................................3
         The Appellant was egregiously harmed when the
         trial court failed to give a unanimity instruction to
         the jury. ............................................................................................................3

State’s Response to Appellant’s First Point of Error: ...............................................3
         The jury charge contained a proper unanimity
         instruction because the jury did not need to be
         unanimous as to the manner and means in
         Appellant committed the felony murder. .........................................................3

Argument....................................................................................................................4

Appellant’s Second Point of Error:............................................................................7
         The erroneous jury charge egregiously harmed
         Garza. ..............................................................................................................7

State’s Response to Appellant’s Second Point of Error: ...........................................7
         The jury charge was not erroneous and therefore
         Garza was not harmed. ....................................................................................7

Prayer for Relief .........................................................................................................7
Certificate of Compliance ..........................................................................................8
Certificate of Service .................................................................................................8



                                                              iii
                                               Table of Authorities

Statutes

Tex. Penal Code Ann. 19.02(b)(3) (Vernon Supp. 2014) ..........................................6
Rules

Tex. R. App. P. 9.4 (West 2013) ................................................................................8
Tex. R. App. P. 38.2(a) ............................................................................................. ii
Cases

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) ...............................................................4
Arrington v. State,
 No. PD-1448-13, 2015 Tex. Crim. App. LEXIS 15 (Tex. Crim. App. Jan. 15,
 2015) .......................................................................................................................6
Cosio v. State,
 353 S.W3d 766 (Tex. Crim. App. 2011) ................................................................4
Holford v. State,
 177 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ......................5
Kitchens v. State,
 823 S.W.2d 256 (Tex. Crim. App. 1991) ...............................................................6
Magaña v. State,
 351 S.W.3d 501(Tex. App.―San Antonio 2011, no pet.) .....................................4
Sanchez v. State,
  182 S.W.3d 34 (Tex. App.—San Antonio 2005, pet. granted) ..............................4
White v. State,
 208 S.W.3d 467 (Tex. Crim. App. 2006) ...............................................................6




                                                              iv
TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS:

      Now comes, Nicholas LaHood, Criminal District Attorney of Bexar County,

Texas, and files this brief for the State.

                       Statement Regarding Oral Argument

      The State waives oral argument. However, if the Court is inclined to grant

argument, the State is prepared to present argument and would respectfully ask the

Court for an opportunity to respond.

                                Statement of the Case

      On October 21, 2013, Appellant, Benito Garza (hereinafter “Garza”) was

indicted by a Bexar County grand jury for one count of felony murder. (CR 5-6).

After refusing a peal offer, Garza pled not guilty and proceeded to a jury trial in the

187th District Court on September 22, 2014. (2 RR 1, 3 RR 7, 11). On September

25, 2014, the jury returned a guilty verdict. (5 RR 36). At the end of the

punishment phase, the jury sentenced Garza to 60 years incarceration in the Texas

Department of Corrections, Institutional Division. (CR 53-54, 7 RR 15).

      The trial court certified Garza’s right to appeal. (CR 67-68, 7 RR 15).

Garza filed a notice of appeal and this appeal follows.

                                Statement of the Facts

      The facts of the case are not pertinent to the issue on appeal. However the

State will give a brief summation of the main facts.
                                             1
      On September 21, 2012, Garza entered the home of Michel Jay Flores in the

Indian Creek subdivision on the southwest side of San Antonio. (3 RR 91-92)

Flores was in the bathroom at the time, when he heard his brother scream out.

Flores exited the bathroom and found his brother laying on the floor and learned he

had been robbed. (3 RR 92). Garza testified that he had gone to the home to

“retrieve” property. (4 RR 152). Flores tried to chase down Garza on foot and

then in a vehicle, but was not successful. Neighbors called the police after seeing a

man with a gun in a silver sedan. (3 RR 26).

      Police responded and quickly targeted a silver Hyundai exiting the

subdivision. (3 RR 51). Clearly marked patrol cars with overhead lights pursued

Garza down Old Pearsall Road towards Loop 410. (3 RR 71). Garza never

attempted to stop and cut through a gas station parking lot and then entered Loop

410 traveling in the wrong direction at 7 P.M. that evening. (3 RR 71). The

officers ceased their immediate chase to pursue Garza in the correct flow of traffic.

(3 RR 74).

      Meanwhile, Roxana Tenorio and her husband, Pedro Tenorio, were traveling

from Corpus Christi, Texas to a motorcycle rally in Bandera, Texas. (3 RR 18).

Garza collided with the couple head on. (4 RR 22-25). Pedro Tenorio was killed

instantly from multiple traumatic injuries, including a severed spinal cord and arm.

(4 RR 109). Roxana Tenorio lost her leg, but survived the collision. (3 RR 19).


                                          2
      Garza’s car collided not only with the motorcycle, but Nicole Valadez-

Moreno’s vehicle as well. (4 RR 22, 32). Garza fled the scene of foot with a shot

gun and was apprehended in a nearby school bus parking lot. (3 RR 52, 4 RR 58).

Garza testified that he did not remember the accident.

      Garza was indicted with felony murder. (CR 5). The indictment alleged that

Garza committed robbery and evaded in a vehicle and while in commission or

flight of those offenses committed an act clearly dangerous to human life which

caused the death of Pedro Tenorio. (CR 5). At trial, the jury was submitted both

the robbery and evading with a vehicle as two alternative theories of the felony

murder charge.    (CR 49, 50). The charge included a general instruction that the

verdict must be unanimous. (CR 53).

                     Appellant’s First Point of Error:
 The Appellant was egregiously harmed when the trial court failed to give a
                    unanimity instruction to the jury.

            State’s Response to Appellant’s First Point of Error:
 The jury charge contained a proper unanimity instruction because the jury
  did not need to be unanimous as to the manner and means in Appellant
                       committed the felony murder.


                           Summary of the Argument

      There was no error in the jury charge. Garza was charged with felony

murder in the course of either committed a robbery or evading in a vehicle. Two

alternative theories of committing felony murder were submitted to the jury and

                                         3
the jury properly returned a general verdict of guilt. The jury was not required to

be unanimous as to the theory, or manner and means, of committing felony murder

as long as the evidence supported either. The evidence supported both alternative

theories. The jury charge contained no error and therefore Garza was not harmed.

                                     Argument

      In analyzing a jury charge, the court must first decide whether error exists.

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985). If error exists,

then it must be analyzed for harm. Id. If the appellant objected to the charge

before it was given to the jury, the court will only reverse the trial court’s judgment

if “some harm” resulted. Sanchez v. State, 182 S.W.3d 34, 61 (Tex. App.—San

Antonio 2005, pet. granted) (citing Almanza, 686 S.W.2d at 171). However, if an

appellant did not object to the charge, the court must find egregious harm to

reserve the trial court’s judgment. Id.

      Texas law requires that a jury reach a unanimous verdict about the specific

crime that the defendant committed. Cosio v. State, 353 S.W3d 766, 771 (Tex.

Crim. App. 2011). A jury must unanimously convict a defendant of a single,

specific offense, but it need not unanimously agree as to any particular theory of

how the defendant committed that offense. Magaña v. State, 351 S.W.3d 501, 504

(Tex. App.―San Antonio 2011, no pet.). “In reviewing a disjunctive jury charge,

we first determine whether the separate application paragraphs contain different


                                          4
criminal acts or whether they merely instruct as to different means of committing

the single offense.” Id., quoting Holford v. State, 177 S.W.3d 454, 461 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d). In Magaña, the appellant had been

convicted of felony murder and argued the trial court committed harmful error by

allowing for a less than unanimous jury verdict. Magaña, 351 S.W.3d at 503.

Similar to the facts here, the appellant had committed two separate felonies in the

commission of the offense of felony murder. Id. The court rejected the appellant’s

argument and found that the jury must be unanimous to the single offense charged,

but it need not be unanimous as to the particular theory of how the defendant

committed the offense. Id. at 505.

      Here, the jury charge contained a general instruction that the jurors must be

unanimous in their verdict. (CR 53). Garza’s trial counsel did not object to the

jury charge, however, Garza now argues the jury charge allowed for a non-

unanimous verdict. Specifically, the jury charge allowed for conviction by a less

than unanimous verdict because some jurors could have convicted him of murder

based on the robbery and others could have convicted him of murder based on the

evading arrest with a vehicle. However, if an indictment alleges multiple felonies

as alternative basis for felony murder liability, the felonies are not elements

because the felonies constitute the manner and means that make up the felony

element of felony murder. White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App.


                                         5
2006); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Tex. Penal

Code Ann. 19.02(b)(3) (Vernon Supp. 2014). Moreover, “[i]t is appropriate where

the alternate theories of committing the same offense are submitted to the jury in

the disjunctive for the jury to return a general verdict of the evidence is sufficient

to support a finding under any theory submitted.” Kitchens, 823 S.W.2d at 258.

Therefore, the jury need not be unanimous as to which felony constitutes the

manner and means as long as there is sufficient evidence to support the underlying

felony.

      The State submitted two alternatives theories of felony murder: (1) robbery

and (2) evading with a vehicle. The evidence supported either theory. At trial, it

was shown Garza entered Michael Jay Flores’ home. Flores’ brother said he had

been robbed and Garza himself admitted that he entered the home, armed, to

retrieve property. Multiple witnesses then saw Garza flee in his car. Garza evaded

the police attempting to conduct a stop and he entered the highway traveling the

opposite direction at a high rate of speed. He then collided with and killed Pedro

Tenorio. Since the evidence supported either theory of robbery or evading with a

vehicle the charge was not erroneous and the jury returned a valid verdict.

      Garza relies on a recent Court of Criminal Appeals case to advance his

argument. See Arrington v. State, No. PD-1448-13, 2015 Tex. Crim. App. LEXIS

15 (Tex. Crim. App. Jan. 15, 2015). However, Arrington considered the proper


                                          6
harm analysis the court must conduct when there is an unobjected-to erroneous

jury charge. Id. Arrington does not apply to Garza’s analysis because there is no

error in the jury charge.

                      Appellant’s Second Point of Error:
             The erroneous jury charge egregiously harmed Garza.

           State’s Response to Appellant’s Second Point of Error:
  The jury charge was not erroneous and therefore Garza was not harmed.


      As discussed in the previous point of error, the jury charge had no error and

the State will forgo a harm analysis.

                                 Prayer for Relief

      The State prays that this Court will affirm the judgment of the trial court.


                                        Respectfully submitted,
                                        NICHOLAS “NICO” LAHOOD
                                        Criminal District Attorney
                                        Bexar County, Texas

                                        /s/ Laura E. Durbin
                                         ______________________________
                                         LAURA E. DURBIN
                                         Assistant Criminal District Attorney
                                         Bexar County, Texas
                                         101 West Nueva, 7th Floor
                                         San Antonio, Texas 78204
                                         (210) 335-2411
                                         State Bar No. 24068556
                                         (On Appeal)

                                        Attorneys for the State

                                          7
                           Certificate of Compliance

     I certify, in accordance with newly revised Rule 9.4 of the Texas Rules of
Appellate Procedure that this document contains 1,463 words.

                                     /s/ Laura E. Durbin
                                     _____________________________
                                     LAURA E. DURBIN




                              Certificate of Service

      I certify that a copy of the foregoing brief was sent to Guillermo Lara,
Attorney for Appellant, at alexjoss@yahoo.com and cindy@campionlawfirm.com
by electronic service on the 30th day of March, 2015.

                                     /s/ Laura E. Durbin
                                     ___________________________
                                     LAURA E. DURBIN




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