                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00093-CR



        SAMUEL DELEON GARZA, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 196th District Court
                Hunt County, Texas
               Trial Court No. 29,017




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                  MEMORANDUM OPINION
        A jury convicted Samuel Deleon Garza of obstruction or retaliation, a third degree

felony. See TEX. PENAL CODE ANN. § 36.06(c) (West 2011). Garza entered a plea of “true” to

the State’s enhancement allegations, raising the penalty range to a “term of not more than 99

years or less than 25 years.” TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). The jury

assessed Garza a punishment of eighty years’ imprisonment. On appeal, Garza’s sole point of

error rests on his argument that the evidence was legally insufficient to prove obstruction or

retaliation. 1 We find that legally sufficient evidence supports Garza’s conviction and affirm the

trial court’s judgment.

I.      Standard of Review and the Hypothetically Correct Jury Charge

        In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found the essential elements

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

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).                   Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–

18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate




1
 In companion cases 06-14-00088-CR, 06-14-00089-CR, 06-14-00091-CR, and 06-14-00092-CR, Garza appeals
from four convictions of assault dating violence, with a previous conviction of assault family violence. In
companion case 06-14-00090-CR, Garza appeals from a conviction of burglary of a habitation.

                                                    2
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        A person commits the offense of obstruction or retaliation if he intentionally or

knowingly harms or threatens to harm another by an unlawful act in retaliation for, or on account

of, the other’s service as (1) a witness or informant, or (2) a person who has reported the

occurrence of a crime. TEX. PENAL CODE ANN. § 36.06(a)(1) (West 2011). ‘“Harm’ means

anything reasonably regarded as loss, disadvantage, or injury.”        TEX. PENAL CODE ANN.

§ 1.07(a)(25) (West Supp. 2014).

        Here, the State’s indictment contained an error that forms the basis of Garza’s complaint

on appeal. The indictment read,

        SAMUEL DELEON GARZA

        did then and there intentionally or knowingly harm or threaten to harm MARIA
        ULLOA, hereinafter called Complainant, by an unlawful act, namely:

                     (1)     On February 4, 2013, Defendant harmed
               Complainant by kicking Complainant’s leg or by pushing
               Complainant to or against the floor;


                                                3
                       (2)   On February 4, 2013, Defendant harmed
               Complainant by pushing Complainant to or against the floor or by
               striking Complainant’s chest or body;

                       (3)  On February 5, 2013, Defendant harmed
               Complainant by striking Complainant’s head or face or by pulling
               Complainant’s hair or by pushing Complainant to or against the
               floor; OR

                       (4)    On February 8, 2013, Defendant harmed or
               threatened to harm Complainant by breaking her vehicle’s window
               and texting “Eye for an eye! Bitch”;

       and said unlawful act was in retaliation for or on account of the service or status
       of Complainant as a witness or a prospective witness or an informant or a person
       who had reported the occurrence of a crime, namely:

              And it is further presented in and to said Court that, prior to the
       commission of the aforesaid offense, on the 19th day of FEBRUARY, 2009[,]
       A.D., in cause number 24508 in the 354th JUDICIAL DISTRICT COURT of
       HUNT County, Texas, the Defendant was convicted of POSSESSION OF A
       CONTROLLED SUBSTANCE, NAMELY METHAMPHETAMINE, IN AN
       AMOUNT OF 4 GRAMS OR [M]ORE BUT LESS THAN 200 GRAMS and said
       conviction is a final conviction;

              And it is further presented in and to said Court that, prior to the
       commission of the aforesaid offenses, on the 28th day of FEBRUARY, 2011,
       A.D., in cause number 26935 in the 254th JUDICIAL DISTRICT COURT of
       HUNT County, Texas, the Defendant was convicted of POSSESSION OF A
       CONTROLLED SUBSTANCE PG 1 >=1G<4G and said conviction is a final
       conviction.

(Emphasis added).

       Capitalizing on the State’s mistake in having included the word “namely,” but then

erroneously omitting the offense or offenses which should have been named before setting forth

the enhancement paragraphs, Garza argues (1) that the hypothetically correct jury charge

requires the State to prove that Garza harmed Ulloa in retaliation for her connections to the 2009

                                                4
and 2011 offenses and (2) that because there is no evidence that Ulloa was a witness, prospective

witness, or informant in the 2009 and 2011 cases, there is a material variance between the

indictment and the proof at trial. We disagree with Garza’s reading of the indictment.

       The State alleged that Ulloa was a “witness or an informant or a person who had reported

the occurrence of a crime,” and, although the phrase was followed by the word “namely,” the

State left blank Garza’s crime or crimes which Ulloa allegedly witnessed or reported or about

which she provided information to the authorities. Plainly, even though the word “namely” is

directly followed by the descriptions of the convictions used for the purpose of enhancing the

charged offense, it would be nonsense for the indictment to charge that Ulloa was involved as a

witness or reported information about offenses committed by Garza for which he was convicted

in 2009 and 2011, long before Ulloa even knew him. It is plain to see that there was a simple

omission of the present offenses (for which Garza was contemporaneously tried).

       A plain reading of the indictment demonstrates that the State did not allege that Ulloa

was a witness, prospective witness, or informant for either the 2009 or the 2011 offenses which

were mentioned for the purpose of enhancement. Garza’s comprehension of the charges for

which he was on trial was demonstrated by his acquiescence to the jury charge (which did not

require the jury to find that Ulloa was a witness or prospective witness to, or an informant

regarding the 2009 or 2011 offenses) and his recognition of and pleas of true to the enhancement

allegations. See Simmons v. State, 106 S.W.3d 756, 761 (Tex. App.—Texarkana 2003, no pet.).

Further, during voir dire, the State informed the jury panel, without objection, (1) that the

“indictment alleges . . . the defendant is retaliating based on the burglary of a habitation” and

                                                5
“the assault family violences being reported by Ms. Ulloa” and (2) that Garza wanted “to get

back at Ms. Ulloa because she reported him to the Greenville Police Department.” 2 Also, the

indictment was corrected when it was read in open court prior to Garza’s plea. See Hall v. State,

62 S.W.3d 918, 919–20 (Tex. App.—Dallas 2001, pet. ref’d).

            We find that the State did not allege that the retaliation for which Garza was charged

involved those offenses described in the enhancement allegations.                            Thus, under the

hypothetically correct jury charge, the State had the burden of proving that (1) Garza

(2) intentionally or knowingly (3) harmed or threatened to harm Ulloa by committing one or

more of the four acts set forth in the indictment (4) in retaliation for or on account of (5) Ulloa’s

service as a witness, prospective witness, informant, or a person who reported the occurrence of

a crime. To establish whether the State met its burden of proof, we examine the record to

uncover the disturbing events that occurred in the first week of February 2013.

II.         Factual Background

            In December 2012, Ulloa (who, although married, had not seen her husband in ten years)

met Garza. Two weeks after they met, despite the existence of her marriage, Ulloa commenced

her tumultuous relationship with Garza by agreeing to accompany him on a date. Soon, Garza

started spending approximately three nights per week at Ulloa’s home. Michael, 3 Ulloa’s son,

testified that Garza “would just like come and go.” When Garza spent the night, he shared a

2
 The jury charge recited the substantive crimes committed by Garza against Ulloa but repeated the same error as the
indictment by failing to specifically name the associated crimes about which Garza attempted to retaliate against
Ulloa. However, unlike the indictment, this omission was not immediately followed by a recitation of the
enhancement convictions. Garza raised no objection to this part of the jury charge.
3
    This is a pseudonym for this child, who was nine years old at the time of trial.

                                                              6
bedroom with Ulloa, Garza kept some of his clothes at Ulloa’s home, and Ulloa cooked for

Garza and did his laundry. Garza, who was unemployed, borrowed Ulloa’s vehicle every night.

Although Ulloa was aware that Garza was simultaneously dating another woman, she testified

that she fell in love with Garza and said that the two discussed the possibility of marriage.

         Ulloa testified, however, that shortly after their relationship began, Garza began to

verbally abuse Ulloa and that the verbal abuse evolved into physical abuse three weeks into their

relationship. Michael testified that Garza committed “domestic violence on [his] mom.” Garza

regularly apologized for his behavior, and Ulloa forgave him just as regularly. Ulloa testified

that she endured Garza’s physical abuse for two months before threatening to report his behavior

to the police. Garza’s conduct gave no evidence that he was intimidated by this threat.

         At about 1:50 a.m. on February 2, 2013, Garza appeared at Ulloa’s door.                              Garza

immediately accused her of having an affair with another man as a predicate to striking her in the

mouth, breaking her tooth. Fearing for her life, Ulloa called the police as Garza fled. Gary Don

Barrow, II, an officer with the Greenville Police Department, testified that Ulloa “was bleeding

from the chin and mouth area, [and] looked like she had been beaten up.” He took photographs

of Ulloa’s bloody lip and mouth, which were shown to the jury. Garza was later apprehended. 4

         On February 3, 2013, Ulloa received a telephone call from detective Mike Johnston, who

informed her that Garza had been arrested and that it was necessary to pay $175.00 for him to be

released. Johnston also indicated that he wanted to speak to Ulloa about the use of her truck

during the commission of a possible extraneous offense. Ulloa went to the Greenville Police

4
 This incident resulted in Garza’s conviction for assault dating violence with a previous conviction of assault family
violence. Garza appeals from that conviction in companion case number 06-14-0088-CR.
                                                          7
Department, paid Garza’s bond, and spoke to Johnston about the alleged extraneous offense.

According to Johnston, Ulloa denied Garza’s involvement in the suspected criminal activity, but

implicated other individuals.

         From February 4 through February 5, 2013, Garza committed three separate instances of

assault against Ulloa. After Garza was released from jail on February 4, he returned to Ulloa’s

house early in the morning, broke down her front door, and accused her of “snitching.” Ulloa

testified that on that occasion, Garza hit her in the face and kicked her in the leg. Michael, who

witnessed the assault, testified, “My mom [was] on the ground and [he was] above her hitting

her.” Michael also saw Garza pocket Ulloa’s cell phone before she could call the police, leaving

her vulnerable and crying on the ground. Michael ran to a neighbor’s house, dialed 9-1-1, telling

the emergency dispatcher of Garza’s conduct toward his mother and of his confiscation of

Ulloa’s cell phone (making it impossible for her to use it to call the police). The police

responded with sirens screaming. Garza, hearing the police sirens, fled before he could be

apprehended by responding officers, Leigh Dixon and Barrow, who arrived at approximately

6:00 a.m. According to Dixon, Ulloa was crying and claimed to have been assaulted. 5

         Several hours later, Garza returned with Cody Acreage, a mutual friend who asked Ulloa

if she would speak to Garza through the crack in a barely-opened front door. When Ulloa

declined the offer, Garza pushed the door open and began once more to beat Ulloa, hitting her in

the face and chest, shoving her to the ground, and yanking her hair. (Michael testified that Garza


5
 This first February 4 incident resulted in Garza’s conviction for assault dating violence with a previous conviction
of assault family violence. Garza appeals from that conviction in companion case 06-14-00092-CR.

                                                         8
“yanked [Ulloa] down and hit her in the head” twice with his fists.) Michael once again resorted

to running to the neighbor’s house and reporting the incident to the police dispatcher who

responded to the 9-1-1 call he placed. Dixon, Barrow, and West responded to this call. Because

Garza had already fled, the officers took more photographs of Ulloa, which depicted redness on

her chest and neck. Then, they left, giving Garza an opportunity to return. 6

        After the police left, Garza returned again and kicked down Ulloa’s front door.

Photographs of the damaged front door were shown to the jury. According to Ulloa, Garza then

broke into her locked bedroom, and she was awakened by his blows to her face. Michael

testified that he witnessed Garza push Ulloa into the bedroom door, causing her to fall back and

hit her head on a hard surface. For the third time within a twenty-four-hour period, Michael ran

to the neighbor’s house, dialed 9-1-1, and informed the dispatcher that Garza had hit his

mother’s head on a door. Dixon, who responded to Michael’s call, testified that Ulloa was

crying hysterically because she had been “woken from her sleep and assaulted.” Photographs

taken of Ulloa after this assault depicted Ulloa’s bloodied face and scalp. Dixon requested

medical assistance for Ulloa. 7

        Garza’s February 4 and February 5 assaults did not end his relationship with Ulloa.

Consistent with his pattern of behavior, Garza apologized for what he had done to her, and Ulloa

continued communicating with him by telephone. On February 7, 2013, around 7:00 a.m., Garza

called Ulloa and asked if he could collect his belongings from her home, and Ulloa consented.
6
 This second February 4 incident resulted in Garza’s conviction for assault dating violence with a previous
conviction of assault family violence. Garza appeals from that conviction in companion case 06-14-00089-CR.
7
 This last February 5 incident resulted in Garza’s conviction for burglary of a habitation. Garza appeals from that
conviction in companion case 06-14-00090-CR.
                                                        9
Garza came and took his things as he indicated he would, but after he left, Garza texted Ulloa,

“Go look at ur truck bitch.” Ulloa stepped outside to discover that Garza had thrown a brick

through her truck’s rear window. Two minutes after the first text message, Garza texted, “Eye

for an eye! Bitch,” and affixed a winking emoticon as punctuation. Officer Victor Ray Petrea

responded to Ulloa’s report of the property damage and took photographs of the damaged truck.

         On February 9, 2013, Barrow located and arrested Garza. Although Ulloa did not see

Garza again until April, the two continued to communicate with one another by telephone. In

April, Ulloa saw Garza in a parking lot. Ulloa testified that Garza walked over to her truck,

opened the door, struck her in the mouth with his fist, told her that he did not want to see Ulloa

with anyone else, and left. A photograph of Ulloa’s injuries from this incident documented a

black eye and a bleeding laceration on her face. 8

         After having heard this evidence, the jury convicted Garza of obstruction or retaliation.

III.     Sufficient Evidence Supports the Jury’s Verdict

         Garza argues that there is no evidence that he was “aware that his conduct was

reasonably certain to be in retaliation of anything.” We disagree.

         “One who witnesses an offense but who has not yet testified in a trial involving that

offense is a prospective witness.”            Solomon v. State, 830 S.W.2d 636, 637 (Tex. App.—

Texarkana 1992, pet. ref’d) (citing Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982),

overruled on other grounds by Malik, 953 S.W.2d 234). “[W]hether one is a prospective witness

must be judged from the standpoint of the one who retaliates.” Id.; see Morrow v. State, 862

8
 This April incident resulted in Garza’s conviction for assault dating violence with a previous conviction of assault
family violence. Garza appeals from that conviction in companion case 06-14-00091-CR.
                                                         10
S.W.2d 612, 615 (Tex. Crim. App. 1993).                  “[R]etaliatory intent may be inferred from an

accused’s acts, words, or conduct.” Umstead v. State, 440 S.W.3d 909, 916 (Tex. App.—

Eastland 2014, pet. ref’d) (mem. op.); In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth

2002, no pet.) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982)).

        Prior to February 3, 2013, Ulloa told Garza that she would “put charges against him” if

he did not stop physically abusing her. On February 2, 2013, Garza assaulted Ulloa, this assault

prompting Ulloa to inform the police. Shortly thereafter, Garza was arrested. Ulloa received a

telephone call from detective Johnston, who wanted to talk to her about Garza’s possible

involvement in an extraneous offense involving her truck. Ulloa went to the Greenville Police

Department, spoke with Johnston, and implicated others in the extraneous crime. After his

release from jail on February 4, 2013, Garza called Ulloa a “snitch” and assaulted her once

again. Although Garza fled as the police were arriving, he twice returned to assault her. On

February 7, 2013, Garza damaged Ulloa’s truck and texted her the adage of an “eye for an eye”

as the reason for the harm. In light of this evidence, a rational jury could find that Garza’s

actions were in retaliation for Ulloa’s decision to (1) report Garza’s February 2 crime of assault,

(2) cause Garza’s arrest for the February 2 assault, (3) become an informant or prospective

witness for the February 2 offense, (4) implicate others in discussing the extraneous offense with

Johnston,9 (5) inform the police of the three incidents in February, and (6) cause Garza’s

February 9 arrest.



9
 A “person committing an offense need not be the person against whom the prospective witness could testify if he is
charged under the law of parties.” See Umstead, 440 S.W.3d at 916.
                                                        11
       Because we find the evidence legally sufficient to support the jury’s verdict of guilt, we

overrule Garza’s sole point of error.

IV.    Conclusion

       We affirm the trial court’s judgment.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:        February 17, 2015
Date Decided:          March 10, 2015

Do Not Publish




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