Heriberto Saenz v. State ( 2018 )

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
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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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