                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00682-CR

                                           Benito GARZA,
                                              Appellant

                                                 v.

                                         The STATE of Texas,
                                               Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR9168
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 5, 2015

AFFIRMED

           Appellant Benito Garza was charged by indictment with felony murder. The jury convicted

Garza and assessed punishment at sixty years’ confinement in the Institutional Division of the

Texas Department of Criminal Justice. On appeal, Garza contends the trial court erred by failing

to provide a unanimity instruction in the court’s charge. Because the unanimity requirement is not

violated by instructing the jury on alternative legal theories of committing the same offense, we

affirm the trial court’s judgment.
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                                    FACTUAL BACKGROUND

       On September 21, 2012, San Antonio police officers responded to a home invasion in the

Indian Creek subdivision in San Antonio, Texas. The suspect left the subdivision in a small gray

Kia vehicle. Officer Nathan Zachary was in route to the location when he witnessed a small gray

Kia traveling the opposite direction on Five Palms Drive. Officer Zachary activated the overhead

lights and sirens on his marked vehicle and attempted to stop the Kia. Officer Zachary continued

to follow the Kia through a gas station parking lot and down Old Pearsall Road where the Kia ran

a red light. The officer suspended his chase when the Kia entered the exit ramp of Interstate Loop

410 traveling the wrong direction into oncoming traffic.

       The Kia ran head-on into a motorcycle carrying Roxana and Pedro Tenorio. Pedro was

killed on impact and Roxana survived the collision, but lost her leg. The driver of the Kia exited

his vehicle carrying a shotgun and was apprehended in a nearby school bus parking lot. The driver

of the vehicle was identified as Appellant Benito Garza.

       Garza was charged by indictment with felony murder, with an enhancement paragraph

alleging a prior felony conviction and a deadly weapon enhancement. The two paragraph

indictment alleged:

                                         PARAGRAPH A
       on or about the 21st Day of September, 2012, BENITO GARZA, hereinafter
       referred to as defendant, did then and there commit or attempt to commit the felony
       offense of EVADING ARREST IN A VEHICLE, and while in the course of or in
       furtherance of or in immediate flight from the commission or the attempted
       commission of this offense, the defendant did then and there commit or attempt to
       commit an act clearly dangerous to human life, to wit: DRIVING A MOTOR
       VEHICLE AT A SPEED THAT WAS NOT REASONABLE OR PRUDENT
       UNDER THE CIRCUMSTANCES THEN EXISTING, DRIVING A MOTOR
       VEHICLE AND FAILING TO APPLY THE BRAKES IN A TIMELY AND
       REASONABLE MANNER AND /OR DRIVING THE MOTOR VEHICLE INTO
       ONCOMING TRAFFIC, DRIVING A MOTOR VEHICLE AND ATTEMPTING
       TO PASS ANOTHER MOTOR VEHICLE WHEN IT WAS NOT REASONABLE
       AND PRUDENT UNDER THE CIRCUMSTANCES THEN EXISTING,
       DRIVING A MOTOR VEHICLE AND FAILING TO MAINTAIN A SINGLE
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       LANE OF TRAFFIC, DRIVING A MOTOR VEHICLE AND FAILING TO
       TAKE NECESSARY EVASIVE ACTION TO AVOID COLLIDING WITH
       ANOTHER VEHICLE IN/ON WHICH THE COMPLAINANT WAS A DRIVER
       OR PASSENGER WHICH CAUSED THE DEATH OF AN INDIVIDUAL,
       NAMELY: PEDRO TENORIO;

                                         PARAGRAPH B
       on or about the 21st Day of September, 2012, BENITO GARZA, hereinafter
       referred to as defendant, did then and there commit or attempt to commit the felony
       offense of ROBBERY THREATS, and while in the course of or in furtherance of
       or in immediate flight from the commission or the attempted commission of this
       offense, the defendant did then and there commit or attempt to commit an act clearly
       dangerous to human life, to wit: DRIVING A MOTOR VEHICLE AT A SPEED
       THAT WAS NOT REASONABLE OR PRUDENT UNDER THE
       CIRCUMSTANCES THEN EXISTING, DRIVING A MOTOR VEHICLE AND
       FAILING TO APPLY THE BRAKES IN A TIMELY AND REASONABLE
       MANNER AND /OR DRIVING THE MOTOR VEHICLE INTO ONCOMING
       TRAFFIC, DRIVING A MOTOR VEHICLE AND ATTEMPTING TO PASS
       ANOTHER MOTOR VEHICLE WHEN IT WAS NOT REASONABLE AND
       PRUDENT UNDER THE CIRCUMSTANCES THEN EXISTING, DRIVING A
       MOTOR VEHICLE AND FAILING TO MAINTAIN A SINGLE LANE OF
       TRAFFIC, DRIVING A MOTOR VEHICLE AND FAILING TO TAKE
       NECESSARY EVASIVE ACTION TO AVOID COLLIDING WITH ANOTHER
       VEHICLE IN/ON WHICH THE COMPLAINANT WAS A DRIVER OR
       PASSENGER WHICH CAUSED THE DEATH OF AN INDIVIDUAL,
       NAMELY: PEDRO TENORIO;

The trial court’s charge tracked the language of the indictment, providing the two alternative

theories of committing felony murder under section 19.02(b)(3). See TEX. PEN. CODE ANN.

§ 19.02(b)(3).

       A person commits an offense if he commits or attempts to commit a felony, other
       than manslaughter, and in the course of and in furtherance of the commission or
       attempt, or in immediate flight from the commission or attempt, he commits or
       attempts to commit an act clearly dangerous to human life that causes the death of
       an individual.

Id. During the charge conference, defense counsel’s request for the lesser included offense of

criminally negligent homicide was denied. No other objections were made to the court’s charge.

       The jury found Garza guilty of the charged offense and made an affirmative finding of a

deadly weapon. Garza entered a plea of true to the enhancement allegation, and the jury assessed


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punishment at sixty years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice.

       On appeal, Garza complains the guilt-innocence charge provided two separate theories as

to how Garza committed the murder of Pedro Tenorio without providing the jury with a unanimity

instruction. Garza contends the trial court’s error allowed the jury not to be unanimous on the

question of how Garza committed felony murder. Garza further contends the error caused

egregious harm.

                                   UNANIMITY INSTRUCTIONS

A.     When Jury Charge Must Include Unanimity Instruction

       “Under our state constitution, jury unanimity is required in felony cases, and, under our

state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d 738, 745 (Tex.

Crim. App. 2005); see also Leza v. State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011) (“Jury

unanimity is required on the essential elements of the offense but is generally not required on the

alternate modes or means of commission.”). While “the jury must unanimously agree about the

occurrence of a single criminal offense, . . . they need not be unanimous about the specific manner

and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim.

App. 2011); see also Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Ngo, 175

S.W.3d at 745–46.

       The trial court properly charges a jury with a general verdict form when an “indictment

[does] not allege different offenses but only allege[s] different ways of committing the same

offense.” Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. [Panel Op.] 1982) (op. on

reh’g); accord Zavala v. State, 401 S.W.3d 171, 182 (Tex. App—Houston [14th Dist.] 2011, pet.

ref’d). Importantly, however, alternative methods of committing the same offense are properly

submitted in the disjunctive, in a general verdict form, if the evidence is legally sufficient to
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support a finding of the offense under any of the theories submitted. Kitchens v. State, 823 S.W.2d

256, 258 (Tex. Crim. App. 1991); accord Finster v. State, 152 S.W.3d 215, 218 (Tex. App.—

Dallas 2004, no pet.).

B.     White v. State

       The Texas Court of Criminal Appeal’s case, White v. State, 208 S.W.3d 467 (Tex. Crim.

App. 2006), is instructive on this issue. In White, the defendant was convicted of felony murder

under section 19.02(b)(3). Id. at 467. The evidence presented at trial supported that White was

driving a stolen car during a high-speed chase when his vehicle collided with another vehicle,

killing the driver. Id. The two paragraph indictment alleged White caused the victim’s death

during the commission of a state-jail felony, either unauthorized use of a motor vehicle or evading

arrest or detention. Id. at 467–68. “The jury charge authorized the jury to convict appellant if it

unanimously found that he caused the victim’s death during the commission of either one of these

two felonies without having to unanimously find which felony appellant was committing.” Id. at

468. Like Garza, White claimed for the first time on appeal that the court’s charge violated his

right to a unanimous jury verdict. Id.

       The White court explained the term felony under section 19.02(b)(3):

       The term “felony” is clearly an element of Section 19.02(b)(3), thus requiring a jury
       to unanimously find that the defendant committed a “felony.” And, in cases like
       this, where some of the jurors might believe that the defendant committed felony A
       and the rest of the jurors might believe that he committed felony B, the jury has
       unanimously found that the defendant committed a “felony.” In addition, the
       transitive verb of the portion of Section 19.02(b)(3) at issue here is “commits”
       followed by the term “felony.” This indicates that the prohibited conduct about
       which a jury must be unanimous is that the defendant commit a “felony,” and not
       one specific felony out of a combination of felonies.

Id. (internal citations omitted); accord Contreras v. State, 312 S.W.3d 566, 584 (Tex. Crim. App.

2010); see also Jefferson v. State, 189 S.W.3d 305, 312–14 (Tex. Crim. App. 2006).

       We see no distinction in the case presented before us today.
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C.     Application

       Garza was charged with felony murder in a two-count indictment with “felony A” being

evading arrest and “felony B” being robbery threats. Thus, because Garza’s indictment alleged

two felonies under section 19.02(b)(3), the actual felonies of evading arrest and robbery threats

are not elements on which the jury must be unanimous. See White, 208 S.W.3d at 469; Contreras,

312 S.W.3d at 584. Instead, “[t]hese felonies constitute the manner or means that make up the

‘felony’ element of Section 19.02(b)(3).” White, 208 S.W.3d at 469; see also Jefferson, 189

S.W.3d at 311 n.7 (explaining the unanimity question turns on whether a particular term in the

statute is an element and thus requires unanimity, or whether the term is “an underlying brute fact

or means of committing an element” and does not require juror unanimity). Accordingly, the trial

court did not err in failing to include a unanimity instruction in the court’s charge. Having found

no error, we need not address Garza’s remaining issue on appeal. The trial court’s judgment is

affirmed.


                                                 Patricia O. Alvarez, Justice

DO NOT PUBLISH




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