                               NUMBER 13-17-00054-CR

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


HERIBERTO SAENZ,                                                                          Appellant,

                                                        v.

THE STATE OF TEXAS,                                                                         Appellee.


                       On appeal from the 347th District Court
                             of Nueces County, Texas.


                            MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

        Appellant Heriberto Saenz challenges his convictions for murder and three

aggravated assaults, first and second-degree felonies.1 See TEX. PENAL CODE ANN. §§

19.02, 22.02 (West, Westlaw 2017 through 1st C.S.). By three issues, Saenz challenges


        1  This is Saenz’s second trial in this matter. Saenz was convicted in the 2010 original trial. His
conviction was reversed in post-conviction proceedings and remanded to the trial court for a new trial.
the admission of hearsay, the sufficiency of the evidence, and argues that his trial counsel

provided ineffective assistance when he failed to impeach a witness with prior testimony.

We affirm.

                                     I.   BACKGROUND

       On the evening of September 30, 2009, a group of people were gathered outside

a residence at 1112 Sabinas Street in Corpus Christi according to trial testimony by

several witnesses. At approximately 11:00 p.m. a red truck drove past the residence.

The driver of the truck shot ten or more rounds of ammunition into the crowd, killing

seventeen-year-old Claryssa Silguero, and wounding three men. Jerry Gonzalez, one

of the injured men, later testified that Saenz was the driver of the truck. Several other

witnesses testified that the shooting took place but could not identify the truck’s driver.

Gonzalez also testified that the shooter said, “hey Debo,” and “S.B.” while at the scene.

Ms. Silguero’s nickname was Debo.

       Over the course of the next two days the Corpus Christi Police Department (CCPD)

developed information that the shooting was gang related and that Saenz was the shooter

in the red truck. Saenz denied any involvement. He offered an alibi that he was at the

Century 16 theater watching “Jennifer’s Body,” and spent the night with his girlfriend,

fifteen-year-old Rebecca Mills.    Saenz admitted that he was a member of a gang,

Suicidal Barrios, or “S.B.” Mills testified that Saenz called her at school the afternoon of

October 1, 2009 and told her to leave school. Saenz told her there had been a shooting

and he was concerned for her safety because of possible retaliation. On October 2, Mills

told the investigating detectives that she did not see Saenz on September 30, 2009. But


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the next day Mills went back to the police station with her mother and admitted that Saenz

arrived at her house after 11:30 the night of September 30, 2009 and left the next morning

before 8:30. Mills testified that Saenz asked to spend the night of September 30 at her

house and she agreed, but told him he could not come over until after her mother went to

sleep. Saenz told her he was going to a movie on September 30 to kill some time until

then.

        Saenz made a number of calls the night of September 30, 2009. He spoke to and

texted Heather Velasquez. Velasquez testified to a conversation with Saenz in which

Saenz said he was going to “hit up Quare hood.”2 Velasquez asked him why and Saenz

responded that “he had to do what he had to do.” During that same conversation,

Velasquez believed she heard the sound of a gun being cocked or a round being

chambered.

        CCPD Detectives Guadalupe Rodriguez and R.L. Garcia performed much of the

investigation. Detective Rodriguez testified that during her investigation she became

aware of a melee at the Taco Bell across from Ray High School a week or ten days before

the shooting. The melee involved members of La Quarenta and Suicidal Barrios. Mills

attended Ray High School and two or three days a week, she met Saenz there after

school. The afternoon of the melee, Saenz was at Taco Bell in his red truck to pick up

Mills after school. When the melee began he took her away and did not get involved,

although members of La Quarenta were taunting him.




        2  Quare refers to a neighborhood of forty streets that includes the shooting location on Sabinas
Street and refers to a gang from that neighborhood also known as La Quarenta.
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       Agent Ben Teed, a former CCPD officer who worked for Homeland Security at the

time of trial, analyzed Saenz’s cell phone activity between ten p.m. and midnight on

September 30. Teed testified that Saenz’s cell phone was bouncing off a cell tower near

the movie theater around 10:30 p.m. According to Agent Teed, twenty-six seconds after

the first 911 call regarding the shooting, Saenz called Mills and three minutes later Mills

called Saenz. Saenz’s call to Mills picked up the cell tower closest to the shooting

location and when the call ended, his phone picked up a tower south of the shooting. In

addition, Agent Teed testified that several of Saenz’s phone calls right before and right

after the shooting were placed to known Suicidal Barrios’ gang members. Saenz’s truck

was spotted at an apartment complex where one of these gang members lived on October

1, 2009, after he left Mills’s home.

       The defense cell phone expert testified that the initial tower for a call on the GSM

network that T-Mobile, Saenz’s carrier, used is generally the closest cell tower.

However, he also testified that once the call is picked up by the network, the cell tower

involved is not necessarily the nearest tower but is chosen by the GSM network. After

the initial tower, according to the defense expert, the tower location does not necessarily

have any relationship to the physical location of the cell phone. He had other criticisms

of Agent Teed’s methodology and conclusions, but he agreed with Agent Teed that at the

time of the shooting, Saenz’s cell phone was not near the cell towers close to Century 16

theater.

       Detective R.L. Garcia testified that the gun used in the September 30, 2009

shooting was recovered on October 4, 2009, from Kelan Oliver. The gun was used in a


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shooting on October 2, 2009, after Saenz was arrested and was in custody. Oliver told

the police officers that he bought the gun on the street within a week before he was

arrested, but he did not know the date. Detective Rodriguez’s investigation of the gun’s

whereabouts led her to believe that the gun was sold to Oliver by a man who was affiliated

with the Suicidal Barrios gang.

       The jury convicted Saenz on all four counts: murder and three aggravated

assaults. Saenz was sentenced to sixty-five years’ imprisonment for murder and to ten

years’ imprisonment for each of the three aggravated assaults, all to be served

concurrently in the Texas Department of Criminal Justice—Institutional Division.

                              II.   SUFFICIENCY OF THE EVIDENCE

       In his second issue on appeal, Saenz challenges the sufficiency of the evidence

to support his convictions.

       A.     Standard of Review

       The Court applies the sufficiency standard from Jackson v. Virginia, which requires

the reviewing court to “view[] the evidence in the light most favorable to the prosecution,”

to determine whether “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson, 443 U.S. 307, 319 (1979) (emphasis in original)); see

also Williams v. State, No. 03-11-00598-CR, 2013 WL 6921489 at *6 n.10 (Tex. App.—

Austin Dec. 31, 2013, pet. ref’d.) (mem. op., not designated for publication). When a

reviewing court views the evidence in the light most favorable to the verdict, it “is required

to defer to the jury’s credibility and weight determinations because the jury is the sole


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judge of the witnesses’ credibility and the weight to be given their testimony.” Brooks,

323 S.W.3d at 899 (emphasis in original). “The reviewing court must give deference to

the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

If the record supports conflicting inferences, we presume that the fact finder resolved the

conflict in favor of the prosecution and defer to that resolution. Garcia v. State, 367

S.W.3d 684, 686–87 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 899.

       Evidence is insufficient under the Jackson standard in four circumstances: 1) the

record contains no evidence probative of an element of the offense; 2) the record contains

a mere “modicum” of evidence probative of an element of the offense; 3) the evidence

conclusively establishes a reasonable doubt; and 4) the acts alleged do not constitute the

criminal offense charged. 443 U.S. at 314, 318 n.11, 320. If an appellate court finds

the evidence insufficient under this standard, it must reverse the judgment and enter an

order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982); Garcia v. State, 367

S.W.3d 683, 687 (Tex. Crim. App. 2012).

       B.     Discussion

       The shooting at 1112 Sabinas Street happened at approximately eleven o’clock

p.m. on September 30, 2009. According to Saenz’s statements to Detectives Rodriguez

and Garcia, he was at a showing of “Jennifer’s Body” at Century 16 movie theater on the

southside of Corpus Christi and arrived at Mills’s house at 11:30 where he spent the night.

Mills’s testimony confirmed that he arrived at her house around 11:30 that night. The


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Court admitted Saenz’s movie ticket that reflects that the movie began at 10:35 p.m.

Century 16 provided videotape of the hallway leading to Theater 15 where “Jennifer’s

Body” was being shown. Detective Michael Ilse with the CCPD works for Century 16 as

its head of security. He testified that he obtained three of the various surveillance tapes

from the night of September 30, 2009 and viewed them at the request of the investigating

detectives. The tapes were admitted at trial. A man who could have been Saenz is

seen walking down the hallway towards Theater 15.          That same man is also seen

walking away from Theater 15 in the hallway at 10:37 p.m. The same man did not go

back down the hallway to Theater 15 before 11:00 p.m. Detective Ilse also testified that

there are exits to outside in the hallway that do not require a patron to exit through the

theater lobby.

       Gonzalez testified that he picked Saenz’s face out of a photo array on October 2,

2009, less than forty-eight hours after the shooting. His selection was not recorded on

the videotape statement taken from him that day by Detectives Garcia and Rodriguez.

Each detective explained that Detective Rodriguez was still setting up the equipment

when Gonzalez picked Saenz’s photo from the array. Gonzalez also testified that he

saw a vehicle turn from Buford Street onto Sabinas and noticed that the driver turned off

his headlights. Gonzalez described the vehicle as a red Ford truck. The driver pulled

the truck closer to the curb than to the center of the street and began shooting out the

driver’s side window. Gonzalez heard the driver say, “Hey, Debo” before he started

shooting and said “S.B.” The next morning, CCPD Detectives Guadalupe Rodriguez and

R.L. Garcia visited Gonzalez in the hospital. Gonzalez testified that he had a shot of


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morphine right before he spoke to them. He told the detectives that morning that the

truck was a red Ford and that he could not identify the driver. The detectives came back

the next day and showed him a photo array. He explained to the jury that when he saw

the photos, he recognized the shooter, Saenz. Gonzalez denied that the detectives

influenced his choice of photo. Gonzalez also made an in-court identification of Saenz

as the shooter.

      Bo Villarreal testified that he had a conversation with Saenz while both were in the

Nueces County jail in mid-October 2009 in which Saenz told Villarreal that he “did a

shooting” of some people including a female named Debo in the Quare. Saenz’s friend

Velasquez testified that she was on the phone and texting with Saenz after ten p.m. on

September 30, 2009, and he told her he was going to “hit the Quare hood.” Velasquez

also thought she heard a round being chambered in a gun while she was talking to Saenz.

      Although there was evidence that no one who was present on Sabinas Street that

night could identify Saenz other than Gonzalez, one witness described the red truck with

a Z71 on its rear side panel (which meant it was a Chevrolet, not a Ford), and the gun

was not recovered in Saenz’s possession, the jury resolved the contradictory evidence in

favor of conviction. See Garcia, 367 S.W.3d at 686–87. We hold that the evidence is

sufficient to support Saenz’s conviction for the murder of Claryssa Silguero, and the

aggravated assaults on Jerry Gonzalez, Charles Castillo, and Jose Azua. We overrule

Saenz’s second issue.




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                                      III.   HEARSAY

       Saenz’s first issue challenges the admission of his statement on the telephone to

Velasquez that he was going to “hit up Quare hood.” The statement came in through

Velasquez’s testimony over defense counsel’s hearsay objection.            The trial court

overruled the objection.

       A.     Standard of Review

       Hearsay is a statement other than one made by the declarant while testifying at

the trial or hearing offered in evidence to prove the truth of the matter asserted. TEX. R.

EVID. 801(d). Hearsay is not admissible except as provided by statute or the rules of

evidence. TEX. R. EVID. 802. An appellate court reviews a trial court’s evidentiary ruling

for abuse of discretion and will not reverse that decision absent an abuse of discretion.

See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Zuliani v. State, 97

S.W.3d 589, 595 (Tex. Crim. App. 2003); Epps v. State, 24 S.W.3d 872, 879 (Tex. App.—

Corpus Christi 2000, pet. ref’d). “The trial court abuses its discretion when [its] decision

lies outside the zone of reasonable disagreement.” McCarty v. State, 257 S.W.3d 238,

239 (Tex. Crim. App. 2008).

       B.     Discussion

       Although hearsay is an out-of-court statement, hearsay does not include the

statement of a party opponent even though the statement was made out of court. TEX.

R. EVID. 801(e)(2)(A); Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim. App. 1999) (“A

statement qualifies as an admission by party opponent if it is offered against a party and

it is the party’s own statement.”); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App.


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1999) (“The State correctly argues that Rule 801(e)(2)(A) plainly and unequivocally states

that a criminal defendant’s own statements, when being offered against him, are not

hearsay.”). “A party’s own statements are not hearsay and they are admissible on the

logic that a party is estopped from challenging the fundamental reliability or

trustworthiness of his own statements.” Trevino, 991 S.W.2d at 853; see also Alcala v.

State, 476 S.W.3d 1, 23 (Tex. App.—Corpus Christi 2013, pet. ref’d).

      Because Saenz’s statement to Velasquez is defined as not hearsay, it was

admissible. TEX. R. EVID. 801(e)(2)(A) The trial court did not abuse its discretion by

admitting the statement. We overrule Saenz’s first issue.

                       IV.   INEFFECTIVE ASSISTANCE OF COUNSEL

      Saenz’s third issue complains that his counsel was ineffective because he failed

to impeach Bo Villarreal with his previous statements. Villarreal was a witness against

Saenz who testified that Saenz admitted shooting Silguero and the others. Saenz made

the admission while the two of them were in the Nueces County Jail in mid-October 2009,

approximately two weeks after the shooting.

      A.     Standard of Review

      “For a claim of ineffective assistance of counsel to succeed, the record must

demonstrate both deficient performance by counsel and prejudice suffered by the

defendant. An ineffective-assistance claim must be ‘firmly founded in the record’ and

‘the record must affirmatively demonstrate’ the meritorious nature of the claim.”

Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). Saenz is required to

establish that counsel’s performance failed to satisfy an objective standard of


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reasonableness under prevailing professional norms and Saenz was prejudiced because

of that deficiency. Ex parte Bowman, 533 S.W.3d 337, 350 (Tex. Crim. App. 2017) (citing

Strickland v. Washington, 466 U.S. 668, 688 (1984)). “Isolated errors or omissions of

counsel do not amount to deficient performance, which is judged by the totality of the

representation.” Id. We must presume that counsel “rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

Id.

      In most cases on direct appeal the record will not be adequately developed to

address a claim of ineffective assistance of counsel. Menefield, 363 S.W.3d at 592–93.

This may be particularly true when counsel has not been given an opportunity to explain

his reasons for undertaking the challenged action. Id. at 593. When trial counsel has

not been afforded an opportunity to explain his actions, “the appellate court should not

find deficient performance unless the challenged conduct was ‘so outrageous that no

competent attorney would have engaged in it.’” Id.

      B.     Discussion

      There is no record of counsel’s thought process regarding his decision not to

impeach Villarreal with his previous testimony. From our review of the trial record, it is

apparent that defense counsel was familiar with the previous trial record.       Villarreal

admitted that he knew Saenz through the gang Suicidal Barrios. Saenz told Villarreal

that Saenz “he did a shooting.” When Villarreal asked him “who it was on,” Saenz

responded that it was a group of people from the Quare and he said it was a female Debo.

Villarreal testified that his cousin Silguero’s nickname was Debo.      Defense counsel


                                           11
elicited Villarreal’s admission that he had threatened to kill a police officer, that Villarreal

had been in substance abuse treatment for alcoholism, that he violated the terms of his

supervision by having a relationship with a female guard at the rehabilitation facility, that

he was sentenced to four years’ imprisonment at TDCJ for his threat to kill an officer in

2009 after he was in the Nueces County Jail with Saenz, and that before this trial he was

convicted of possession of a controlled substance for which he served a state jail

sentence. Defense counsel established that Villarreal did not report Saenz’s admission

right away and he was not interviewed by detectives in this case until December 3, 2009.

Counsel questioned Villarreal regarding his previous statement that there were two

people in the vehicle, Saenz and Henry Ayala.          Villarreal responded that all he knew

about the shooting came from Saenz, and he had no other information. At closing,

counsel argued that Villarreal was not a credible witness.

       Appellate counsel did not make any record of the testimony that defense counsel

allegedly should have used to cross-examine Villarreal. Appellate counsel points only to

the partial recitation of evidence in the court of criminal appeals’ opinion that reversed

Saenz’s original conviction. Ex parte Saenz, 491 S.W.3d 819, 832 (Tex. Crim. App.

2016). The record in that case is not before us.

       The Court does not have a sufficient record from which to determine whether

Saenz’s third issue on appeal is valid. Saenz’s claim of ineffective assistance of counsel

is better made in an article 11.07 proceeding. TEX. CODE CRIM. PROC. ANN. art. 11.07

(West, Westlaw 2017 through 1st C.S.). We overrule Saenz’s third issue on appeal.




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                                    V.    CONCLUSION

       We affirm the judgment of the trial court.


                                                       GINA M. BENAVIDES,
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of August, 2018.




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