Ronnie Rodriguez Jr. v. the State of Texas ( 2023 )

NUMBER 13-21-00263-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RONNIE RODRIGUEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
OPINION
Before Justices Benavides, Longoria, and Tijerina
Opinion by Justice Tijerina
A jury found appellant Ronnie Rodriguez Jr. guilty of capital murder of Juan
Sandoval III a/k/a Juan Jose Martinez Sandoval III (“Baby Juan”) and Nicky Sandoval
(“Nicky”), and he was sentenced to life without the possibility of parole. See TEX. PENAL
CODE ANN. §§ 19.02, 19.03. By four issues, appellant contends that (1) the evidence was
insufficient to support his conviction, (2) the trial court improperly submitted the case to
the jury on the second amended indictment, (3) a different date was in the jury charge
than alleged in the indictment, thus, the trial court should have submitted the case on the
original date in the unamended indictment, and (4) the trial court’s denial of his request
for a ten-day continuance was erroneous and caused him harm.1 We affirm.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence is insufficient to support the
jury’s verdict. Specifically, appellant argues that although “[t]here is no dispute that [an
eyewitness, Juan Espinosa2] testified that [appellant] shot [the victims, Baby Juan and
Nicky],” in this case “no rational jury could have believed this evidence.” Appellant claims
that “a rational juror could not have believed” Espinosa’s testimony “because [appellant’s]
father [Big Ronnie] had just shot [Espinosa] in the head with the same gun” used to kill
the victims and Espinosa “testified that his sons were shot in the back of their heads” but
“the medical examiner testified that the victims were shot from the front.” Appellant further
argues that all other eyewitnesses testified that Big Ronnie shot the victims; “[t]hus, no
rational juror could have believed that [appellant] shot the victims.” Appellant also asserts
that even under the law of parties, he is not guilty.
1 We have reorganized and renumbered appellant’s issues for purposes of our analysis.
2 The parties refer to this witness as Juan Espinosa who is also referred to in the record as Juan
Sandoval. We will refer to this witness as Espinosa throughout this memorandum opinion for ease of
reading.
Espinosa’s father, Juan Sandoval Sr. (“Sandoval Sr.”), and Espinosa’s three sons, Baby Juan,
Nicky, and Jeremy Rodriguez were all killed during an altercation with appellant, his father, Ronnie
Rodriguez Sr. (“Big Ronnie”) and his brother, Jeremey Rodriguez (“Little Jeremy”). We will use the
nicknames of the parties used by the witnesses at trial for consistency.
Appellant is not charged with the deaths of Sandoval Sr. and Jeremy Sandoval.
2
A. The Evidence
Espinosa testified that a confrontation occurred between appellant’s family
members and him and his four sons, Baby Juan, Justin Sandoval, Nicky, and Jeremy
Sandoval. According to Espinosa, the situation began on the evening of October 12,
2018, when appellant’s brother, “Little Jeremy,” came to his house insisting that
Espinosa’s father, Sandoval, Sr. needed to contact Little Jeremy’s father, Big Ronnie.
Espinosa stated that Little Jeremy was cussing and seemed upset, so Espinosa asked
Little Jeremy to leave, but Little Jeremy refused. Espinosa testified that he and Nicky then
went inside and waited for Little Jeremy to leave, which he eventually did without further
incident.
Espinosa stated that the next day, he, his wife, sons, and Sandoval Sr., went about
their usual routine; but suddenly, Jeremy Sandoval “comes inside and he goes, ‘Hey, they
got grandpa in the barrio,’ in the neighborhood.” Espinosa clarified that he believed that
Little Jeremy and appellant had “barricaded” Sandoval Sr. in the neighborhood, and
Jeremy Sandoval said, “They’re going to hurt him.” Espinosa said that Jeremy Sandoval
then “booked it out the door . . . [a]nd we ran right after him” and “got in the car and took
off.” The group consisted of Espinosa, Jeremy Sandoval, Baby Juan, and Nicky. The
group then arrived at a home where Big Ronnie stopped his vehicle. Espinosa stated that
the group then exited the vehicle, and appellant’s relative, Rudy Rodriguez, who was on
the front porch of the home, started “cussing [the group] out.” The group then approached
a stop sign where Big Ronnie had parked his vehicle, and Espinosa spoke with Big
Ronnie. When asked what they discussed, Espinosa replied, “About sons.” Espinosa
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clarified that the men discussed that appellant and Little Jeremy were harassing Sandoval
Sr., and according to Espinosa, Big Ronnie agreed that his sons had been bothering
Sandoval Sr., and said, “I already talked to them. I don’t know what their deal is . . . . They
don’t listen.” Espinosa said, “Right when he said that, all I heard was ‘Boom.’” According
to Espinosa, “the dirt in front of [his] foot just . . . . And [he] looked over and it was
[appellant]. [Appellant] fired another shot, ‘Boom.’ That time to [his] boys.” Espinosa
clarified that he saw appellant shoot “twice” in his direction. Espinosa said, “That’s when
I told my boys to get the hell out of the way . . . . And then they started scattering.”
Espinosa stated that appellant then handed the gun to Big Ronnie. During his
testimony, Espinosa pointed at a diagram he drew of the location with marks showing
where appellant and all the parties had been when the shootings occurred. Espinosa said
that after appellant shot at him, he “went behind the truck by the road.” Espinosa stated:
“[Appellant] and [Little Jeremy] came at me. They wanted to fight. So when I was going
to hit him, [Big Ronnie] blew out my face.” Espinosa clarified that when he said that Big
Ronnie “blew out” his face, he meant that Big Ronnie shot him on the left side of his face.
Espinosa testified that he then witnessed Big Ronnie shoot Sandoval Sr., and
Sandoval Sr. “fell down.” Espinosa continued as follows: “And then my boy, Jeremy
[Sandoval], grabs Big Ronnie and they are struggling. And that’s when [appellant] hits
[Jeremy Sandoval] in the back of the head. And that’s when [Jeremy Sandoval] got shot.”
Espinosa clarified that although he did not remember when Big Ronnie lost the gun, he
“saw [appellant] grab the gun and [shoot] towards” Baby Juan and Nicky. In summary,
Espinosa testified that after Big Ronnie shot him and Sandoval Sr., Jeremy Sandoval
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wrestled with Big Ronnie for the gun, appellant hit Jeremy Sandoval over the head, at
some point Big Ronnie lost possession of the gun, and appellant then shot Baby Juan
and Nicky. The prosecutor asked Espinosa if Baby Juan and Nicky were also wrestling
Big Ronnie for the gun. Espinosa replied, “No sir.”
Christian Payne, a patrol deputy with the San Patricio County Sheriff’s Department,
testified that he received a dispatch prior to the murders at approximately 5:30 p.m.
Deputy Payne said, “For the call that I heard the dispatch [report] there was an elderly—
dispatch advised an elderly man was being assaulted by two juveniles with weapons
around . . . Dolores Street.” Deputy Payne stated that he went to the Sheriff’s office to get
his patrol unit, and while en route, he received another dispatch that “advised there’d
been shots fired and multiple victims were at [a residence on] Wilburn.” When Deputy
Payne arrived at the scene, he was ushered to an area where four males were “laying on
the ground relatively in a semi-circular fashion and another male subject standing” who
“appeared [to have] been shot in the face. Blood coming down his face.” Deputy Payne
stated that he witnessed other officers arrest appellant near the scene of the killings, and
subsequently, he located appellant’s vehicle and secured consent from the co-owner to
search it. Deputy Payne testified that he ran to the location of the arrest, and he arrived
after appellant had been taken into custody.
Adel Shaker, M.D., the medical examiner for Nueces County, Texas, testified that
Baby Juan and Nicky died due to gunshot wounds to each of their heads. Dr. Shaker
stated that regarding Baby Juan, “the gunshot wound of entrance was on the right side of
the face below the top of the head” and the bullet “exited the left posterior occipital scalp.”
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Dr. Shaker clarified that “[p]osterior means back. Occipital means . . . [s]kull.” On cross-
examination, Dr. Shaker reiterated that the bullet entered Baby Juan’s head on the front
and exited on the back of his head. Appellant asked, “So he did not have a gunshot entry
wound to the back of his head?” Dr. Shaker replied, “No. It was front to back.”
Regarding Nicky, Dr. Shaker testified that the cause of his death was a
“[p]enetrating gunshot wound to the head. Dr. Shaker opined that the bullet “penetrated
the body in a backwards—from the front to the back—downwards and rightwards,” and
he “retrieved it from the back of the head.” In addition, Dr. Shaker said that he “noticed
another gunshot wound to the left side of the head.” Dr. Shaker explained, that although
not terminal, the bullet “grazed the skin and subcutaneous tissue without entering the
cranial cavity on the left side.” The cause of Nicky’s death was the bullet that entered his
head. On cross-examination, appellant asked, “Nicky was not shot in the back of the head,
correct?” Dr. Shaker responded, “Correct.”
The trial court also admitted several pictures of Baby Juan’s and Nicky’s bodies
taken during their autopsies. These pictures showed the entry and exit wounds. Nolanna
Ortiz, an officer who responded to the shootings, testified that “State’s Exhibit 19 shows
the entry wound and Nick Sandoval’s face” and “State’s Exhibit 20 shows the trajectory
in which the bullet passed through” Nicky. On cross-examination, appellant asked, “None
of the victims were shot in the back of the head, based upon your examination, correct?”
Ortiz replied, “No, they were not.”
Joshua Sepulveda, a trooper with the Texas Department of Public Safety, testified
that he arrived at the scene after the murders occurred. Trooper Sepulveda stated that
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he was “watching” a residence near the area where the murders occurred and where a
suspect’s vehicle had been parked. Sepulveda noticed a white Dodge Charger “driving
around very suspiciously” in that “[i]t would stop in front of the house, wait a few minutes
and then take off again.” Trooper Sepulveda said, “And then it would circle back around
the block. It was circling a few times. And that is what caught my attention on that.”
Trooper Sepulveda noticed that at one point a male exited the home where the
suspect’s vehicle, a Charger, was parked, and the man entered the Charger, which
belonged to appellant and his girlfriend. The Charger left the home, which was not the
home where the killings occurred. Based on this, Trooper Sepulveda decided to make a
traffic stop on the Charger “[b]ecause there was a possible suspect that left the
residence.” Trooper Sepulveda testified that he was looking for an appropriate place to
make the traffic stop, but the driver of the Charger eventually pulled over before Trooper
Sepulveda turned on his overhead lights. Trooper Sepulveda then turned on his overhead
lights. Trooper Sepulveda identified appellant as the person sitting in the passenger side
of the Charger, and Trooper Sepulveda detained appellant and then transported him “to
the county.” Trooper Sepulveda clarified that he took appellant to the Criminal
Investigation Division, “escorted him inside to a holding room and [another officer]
interviewed him.”
The State played a surveillance video taken by neighbors of the residence where
the murders occurred. Samuel Cody Lankford, a Texas Ranger, testified that in the video,
appellant, Big Ronnie, and Little Jeremy left the scene of the murders approximately four
minutes prior to the police arriving at the scene. On cross-examination by appellant,
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Ranger Lankford agreed that Espinosa told officers in three separate statements that
appellant shot Baby Juan and Nicky in the back of the head. Ranger Lankford also agreed
that none of the victims were shot in the back of the head.
On redirect examination by the State, Ranger Lankford stated that “there is no
doubt in [his] mind” that appellant discharged a firearm toward Espinosa on the date of
the murders. The State asked, “If you believed that [appellant] was acting lawfully while
discharging that firearm at [Espinosa], would you have requested an arrest warrant for
the deadly conduct?” Ranger Lankford replied, “[F]iring a weapon at somebody is deadly
conduct . . . So, yes, I would have filed that warrant with the information that I had.”
Although Ranger Lankford could not recall “who they said initially the shots were fired
at[,] . . . [he] had statements from multiple people that [appellant] fired the weapon in the
direction [of the victims].” Ranger Lankford stated that he found the gun used to kill Baby
Juan and Nicky buried in a field. According to Ranger Lankford, no one other than the
victims that were shot reported sustaining any injuries during the incident, and when he
encountered appellant, Ranger Lankford did not observe any injuries and appellant made
no complaints of any injuries. Ranger Lankford described appellant’s demeanor as
“somewhat nonchalant. Relaxed.”
Appellant called his cousin, Vanessa Ramirez, to testify. She testified that on the
day of the murders, she was in a vehicle with her husband when she saw that appellant
and Little Jeremy used appellant’s Charger to block Sandoval Sr.’s vehicle with Sandoval
Sr. and his wife in the vehicle. Ramirez saw Sandoval Sr. punching appellant’s vehicle
and “swearing at them.” Ramirez scolded Sandoval Sr. and instructed him to discuss the
8
problem with appellant’s father because appellant and Little Jeremy “were young.”
According to Ramirez, a neighbor then informed the arguing parties that the police were
coming, and Sandoval Sr. told his wife to call his children and to send everyone. Ramirez
testified that Sandoval Sr. “ends up taking off, you know, burning rubber. And then [all
present parties] end up leaving.” On cross-examination, Ramirez acknowledged that she
and appellant were being aggressive during the incident. However, she claimed that
Sandoval Sr. had been more aggressive. Ramirez stated that she was not aware that the
person who called 911 told the dispatcher that two juveniles with weapons were
assaulting an old man.
Appellant then called Roberto Rodriguez, appellant’s uncle, who testified that “the
Sandovals” arrived at the home where a party was being held for his sister’s son. Roberto
did not see appellant with a gun. However, when asked what happened, Roberto stated
that appellant “got the gun out” because according to Roberto, the Sandovals were there
to fight. Appellant asked, “At any point, did you see [appellant] pull a gun out?” Roberto
replied, “Yes.” Appellant asked, “What did he do,” and Roberto said, “Warning shots to
the ground.” Roberto claimed that the Sandovals did not leave and “they went towards
them. . . [so, t]hat’s when my brother[, Big Ronnie,] took the gun away from [appellant]
and then told them again, ‘Please. Please leave.’” Roberto testified that the Sandovals
did not leave, Espinosa “came towards” Big Ronnie, and Big Ronnie then shot Espinosa.
Roberto testified that Big Ronnie shot all of the victims and that appellant did not
shoot anyone. 3 Roberto clarified that appellant only fired two warning shots “to the
3 Roberto did not specify exactly who he claimed Big Ronnie shot.
9
ground.” On cross-examination, Roberto denied that appellant fired the warning shots in
the Sandovals’ direction, but he admitted that they were close. According to Roberto, after
Big Ronnie killed Sandoval Sr., four of the Sandovals attacked Big Ronnie, took him down
to the ground, he removed Espinosa from Big Ronnie, and Big Ronnie “shot three shots
up to the sky” killing Jeremy Sandoval, Nicky, and Baby Juan. Roberto stated that Big
Ronnie stayed at the home “for a while and then just—he got up and just left.” Roberto
clarified that appellant left with Big Ronnie.
Little Jeremy testified that on the date of the murders, Sandoval Sr. “got out of the
vehicle and tried threatening [appellant],” and he hit the back of appellant’s vehicle.
According to Little Jeremy, appellant “got off and he told him, ‘Leave me alone.’” Little
Jeremy stated that Sandoval Sr. refused to stop, so he exited the vehicle and “told him,
‘Can you leave?’” Little Jeremy testified that his cousin Vanessa Ramirez, who arrived at
the scene, told Little Jeremy to leave because the police were contacted. Little Jeremy
denied that he or appellant had a weapon during this incident.
Regarding the incident at the residence, Little Jeremy said that Big Ronnie and
appellant asked the Sandovals “to leave nicely,” but the Sandovals “kept coming,
coming.” According to Little Jeremy, when appellant’s warning shots failed to stop the
Sandovals from approaching, Sandoval Sr. said, “F them, sons. Go get ‘em.” Little Jeremy
claimed that he asked Big Ronnie for help, “[a]nd after that, like, just everything
happened. . . . I didn’t really see nothing.” Little Jeremy admitted that he did not see who
shot the victims, but he still claimed that Big Ronnie was responsible for the killings.
On cross-examination by the State, Little Jeremy claimed that Sandoval Sr.
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attacked appellant’s car and wanted to fight appellant and Little Jeremy, who were
blocked in by Sandoval Sr.’s vehicle. Little Jeremy stated that Sandoval Sr. and his wife
exited their vehicle, and Little Jeremy was scared because he thought they had a weapon.
According to Little Jeremy, he and appellant left because his cousin Vanessa Ramirez
told the elderly couple to leave him and appellant alone. Little Jeremy stated, “I was just
telling him to leave us alone. Like, ‘Leave us alone. Leave us alone,’” and appellant said,
“To go away. Like, ‘Stop hitting my vehicle.’”
Little Jeremy testified that when he was at the scene of the killings, he saw
appellant with a gun. He said, “I just seen that he had the weapon[,] and he just let off the
warning shot towards the grass.” Little Jeremy stated that he ran to his grandmother’s
house prior to the victims being shot.
Appellant testified that on the date of the murders, he encountered Sandoval Sr.
in his vehicle and Sandoval Sr. “rolled down his window[,] and he started [w]hooping and
hollering saying why was I accusing him of being a Peeping Tom at my grandfather’s
house.” According to appellant, eventually Sandoval Sr. exited his vehicle and “started
hitting” appellant’s vehicle and “wanted to fight” appellant. Appellant said that he told
Sandoval Sr., “Man, you are an older man, you know, I’m not going to fight you.” Appellant
stated, “So after he did not want to leave, I decided to be the bigger person and get into
my vehicle and leave. So we left that scene. And that’s what happened there in that area.”
Appellant testified he then went to the residence where a party was being held,
and Sandoval Sr. arrived shortly thereafter again wanting to fight; however, appellant and
Big Ronnie “ran him off.” Appellant stated that Sandoval Sr. came back to the residence
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with other members of his family, and Big Ronnie asked Espinosa, “What’s going on?
Why did y’all come back over here? We just ran your dad off.” According to appellant the
Sandovals then “started to proceed forward” and Big Ronnie “started stepping back.”
Appellant explained, “So then I pulled out the gun from my side of my hip and I fired—
[and] said, ‘Y’all need to go ahead and leave. . . . This is the wrong place, wrong time.
We’re at a birthday party here and y’all want to start drama.’” Appellant testified that the
Sandovals continued their forward movement and “[s]o, at that point, [he] shot to the floor
one time. Boom.” Appellant claimed this caused the Sandovals to get mad, and “[t]hey
decide[d] to push forward . . . so we started stepping back—backpedaling.”
Appellant said, “And then . . . I seen that they were coming at me, but I didn’t
want . . . none of my intention was to hurt them with the gun or anything. So my instant
thought was to just drop the gun. So when I am backpedaling, I dropped the gun.”
According to appellant, the Sandovals and Big Ronnie “tried to jump on the gun,” and
“then they were there tussling for the gun.” Appellant stated, then “the gun starts going
off.”
When asked if he was in fear of “serious bodily injury,” appellant said, “Of course.
Yes, sir.” Appellant explained that he weighs 130 pounds, and the majority of the
Sandovals were much bigger. Appellant agreed with his trial counsel that the Sandovals
were “two times” his size. Appellant’s trial counsel asked, “And did [the Sandovals] have
a reputation for going as a group to take care of business?” Appellant responded, “Plenty.
Plenty. A lot of things have happened with them . . . .”
Appellant testified that Big Ronnie shot the five Sandovals and that appellant did
12
not shoot anyone. Appellant stated that after Big Ronnie shot the alleged attackers,
appellant “ended up getting into [his] car and looking for [his] brother.” He then went to
his mother’s house because” he “knew” that “there w[ere] more people coming.”
According to appellant, he did not stay very long at his mother’s house, and he went to
his girlfriend’s house where he left his car. Appellant testified that he stayed at his
girlfriend’s house briefly because her parents said that the police were looking for
appellant, and appellant’s aunt then picked him up, and he went to his grandmother’s
house.
On cross-examination by the State, appellant denied that he is in a gang or that he
has gang affiliation. Appellant claimed that he does not understand the concept of a gang
member wearing certain colors, and when the State asked if he associated with people
who wore a “vest with their nickname and the gang association,” appellant replied, “It’s
just a vest that they use.” Appellant however acknowledged that he knows “gang
members.” When asked, “So you don’t know what wearing their colors is” or “what driving
around dirty is,” appellant said that he did not know either phrase.
Regarding the incident wherein appellant claimed that Sandoval Sr. attacked his
car, appellant acknowledged that he could have driven away from the scene. The
following exchange occurred:
[The State]: Okay. So [Little] Jeremy came up and said that Juan
Sandoval, Sr., blocked your car and you couldn’t leave. That’s
not true?
[Appellant]: Yes, it is true. That’s how it started. When I’m at the stop
sign—I was already approaching the stop sign. His truck was
turning into the street that I was already in. And, like I said, the
streets are real narrow. So, I mean, he was trying to—his
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bumper was already almost close to my car. So then, he
made—he finally made it in there and then we stayed like that,
sideways. At first it was like that. He was catty-corner blocking
my car.
Appellant agreed with the State that he was “able to leave” when Vanessa Ramirez
arrived at the altercation and Sandoval Sr. started hitting his car. Appellant explained that
he did not call the police when the altercation with Sandoval Sr. occurred because “it
wasn’t necessarily at my house or my father’s house. . . .” Appellant testified that when
he exited his vehicle, he “was upset, because [he] respect[s] everyone. And whenever
[Sandoval Sr.] rolled down his window, he was being very disrespectful.” Appellant said,
“I was mad because of what he was saying—the way he was coming for me.” Appellant
acknowledged that Sandoval Sr. did not have any weapons. Appellant testified that he
decided to leave the scene when Vanessa Ramirez told him to leave. Appellant stated
that although he had the weapon that was used to kill the victims in his vehicle, he did not
use or exhibit it during his altercation with Sandoval Sr. Appellant also claimed that Little
Jeremy did not have a weapon during the altercation.
Regarding the incident at the party, appellant testified that Sandoval Sr., Espinosa,
and Baby Juan “went for the gun,” were on top of and “tussling” with Big Ronnie while he
was on the ground, and then Big Ronnie shot the three men as they were on the ground
tussling. Appellant told the State that Espinosa was not standing when he was shot and
that everyone except Nicky and Jeremy Sandoval who were on the ground when Big
Ronnie shot the other three men. Appellant stated that he did not see who Big Ronnie
shot first because he and Little Jeremy were running from Jeremy Sandoval and Nicky.
Appellant said, “We circled around my car and [Jeremy Sandoval and Nicky], they circled
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around my car as well. So, as I was approaching back to where my dad was on the
ground,” Big Ronnie had already shot Sandoval Sr., Baby Juan, and Espinosa. Appellant
continued as follows:
At that point . . . , I tried to—I think, if I’m not mistaken, I hit the surviving
victim. I hit him in the mouth, because he was still—after he was shot he
was bleeding, but I did hit him in the mouth because he was on top of [Big
Ronnie] still. But after I hit him, [Espinosa’s] two sons [Jeremy Sandoval and
Nicky] are barely circling around my car and that’s whenever my dad got to
get up. After I hit the surviving victim, that’s when my dad got to get up and
then more shots went off. The other two shots went off.
The State asked appellant if he agreed with some of Espinosa’s statements
concerning the timeline of events and the positions of the parties involved. Appellant
agreed that he shot the warning shot in the area where Espinosa’s sons were standing,
but he disagreed that the bullet ricocheted off the ground by Espinosa’s feet. Appellant
agreed that after he fired the warning shot, Espinosa’s sons and Sandoval Sr. “went
toward” him, that Big Ronnie also moved to his area, and that the Sandovals “started
charging” at appellant and Big Ronnie when appellant exhibited his gun. Appellant
disagreed with Espinosa’s testimony that appellant and Little Jeremy then went over to
Espinosa to fight with him. Appellant disagreed that Espinosa was standing when Big
Ronnie shot him. Appellant stated that he did not see Big Ronnie shoot Sandoval Sr.
Appellant said, “I only seen whenever the third shot happened, when he got his mouth
shot in the face—the survivor,” Espinosa.
Appellant clarified that Big Ronnie shot Espinosa, Sandoval Sr., and Baby Juan
“while they were on top of him,” while Jeremy Sandoval and Nicky were chasing appellant
and Little Jeremy. Appellant agreed with the State that Big Ronnie lay on the ground as
15
Jeremy Sandoval and Nicky chased appellant and then got up when the men ran toward
Big Ronnie’s direction. Appellant said, “Yes, sir, because [Espinosa] was still on him when
he was shot. When he got shot, he was still on top of [Big Ronnie]. They were still fighting
for the gun.” According to appellant, he then hit Espinosa “on his face” to “get him off” of
Big Ronnie. Appellant explained, “So while I was—while I already circled my car, I ran as
fast as I could to [Big Ronnie] and I hit [Espinosa] off [Big Ronnie]. And that’s whenever
[Big Ronnie] kind of got to move away from [Espinosa]. And then that’s whenever Nicky
and Jeremy [Sandoval] . . . got killed.” Appellant stated that after Jeremy Sandoval and
Nicky died, Big Ronnie “didn’t know what to do. He was—he wanted to stay around and
then he ended up walking towards the front.”
According to appellant, Little Jeremy ran after Big Ronnie; however, Big Ronnie
continued running so appellant got in his vehicle. Appellant stated that he located Little
Jeremy in a field chasing Big Ronnie. Appellant said, “I seen [sic] [Little Jeremy] chasing
after [Big Ronnie] and I told him to get in my car. Because I didn’t know where [Big Ronnie]
was going.” Appellant admitted that he did not call 911, and instead took Little Jeremy to
their mother’s home.
B. Standard of Review and Applicable Law
In reviewing the sufficiency of the evidence, we consider all the evidence in the
light most favorable to the verdict and determine whether any rational factfinder could
have found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
16
App. 2010) (plurality op.). Direct and circumstantial evidence are equally probative.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The factfinder is the
exclusive judge of the facts, the credibility of witnesses, and the weight to be given their
testimony. Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in
favor of the judgment. Id.We measure the sufficiency of the evidence in reference to the elements of the
offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). “Such a charge [is] one that accurately 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.” Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d
at 240).
Under the Texas Penal Code, a person commits the offense of murder if the person
“intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE ANN.
§ 19.02. A person commits capital murder if he “murders more than one person . . . during
the same criminal transaction.” Id. § 19.03.
C. Discussion
Appellant contends that the evidence is insufficient because there is conflicting
evidence showing that he did not shoot Baby Juan and Nicky in this case. He specifically
points to testimony stating that Big Ronnie shot them. In addition, appellant complains
that Espinosa testified that appellant shot the victims in the back of the head, while
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evidence was presented that the victims were shot in the front of the head.
These contentions attack the credibility of Espinosa’s testimony, not its sufficiency.
See Criff v. State, 438 S.W.3d 134, 137 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(“Courts have consistently held that eyewitness testimony can be sufficient to support a
conviction absent additional corroborating evidence, so long as the testimony proves
every element of the offense beyond a reasonable doubt.”). Our standard of review
requires that we defer “to the responsibility of the trier of fact fairly to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We may not re-weigh
the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). In addition, as the sole judge of the weight and
credibility of the evidence, the jury is free to believe or disbelieve the testimony of all
witnesses and to accept or reject any or all of the defensive evidence. Braughton v. State,
569 S.W.3d 592, 608–09 (Tex. Crim. App. 2018); see also Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991) (“As factfinder, the jury is entitled to judge the
credibility of witnesses, and can choose to believe all, some, or none of the testimony
presented by the parties.”). Under our standard of review, we presume that the jury
resolved conflicting inferences in favor of the verdict, and we defer to its determination of
the evidentiary weight and witness credibility. Braughton, 569 S.W.3d at 608; see Criff,
438 S.W.3d at 136–37.
Accordingly, the jury could have chosen to disbelieve any testimony claiming that
Big Ronnie shot and killed Baby Juan and Nicky, rather than appellant. In addition, the
18
jury could have reasonably found that Espinosa saw appellant shoot the victims but
mistakenly believed that appellant shot the victims in the back of the head—especially
considering the following: Espinosa had been shot in the face, Espinosa had witnessed
his family members being shot and killed, and chaos occurred during the melee. See
Braughton, 569 S.W.3d at 608–09.
Considering all the evidence in the light most favorable to the verdict, we conclude
that any rational factfinder could have found the essential elements of the crime beyond
a reasonable doubt based on the evidence and reasonable inferences from that
evidence.4 See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898–99.
II. THE DATE IN THE INDICTMENT
By his second issue, appellant contends that the date of the incident in the
indictment was incorrect, and the trial court “never amended the date in the indictment.”
Appellant argues that although the trial court attempted to orally amend the date in the
indictment, that effort was futile; therefore, the trial court should have submitted the case
to the jury with the date on the original indictment.5 Specifically, as we understand it,
4 In addition, under the law of parties, the jury could have reasonably found that the evidence
supported a finding that appellant acted with the intent to promote or assist the commission of the offense
by soliciting encouraging, directing, aiding, or attempting to aid Big Ronnie to commit the murders. See
TEX. PENAL CODE ANN. § 7.02. The evidence showed that appellant was involved in an altercation with
Sandoval Sr. just prior to the shooting where someone informed the 911 dispatcher that appellant and his
brother had boxed in Sandoval Sr. and were attacking Sandoval with a weapon; appellant had a gun;
appellant shot at the Sandovals prior to giving the gun to Big Ronnie, who then used the gun to shoot and
kill some of the victims; and appellant fled from the scene of the crimes without calling law enforcement.
Therefore, even assuming for argument’s sake that appellant is correct that the jury should have
disregarded Espinosa’s testimony, the jury could have still reasonably found that appellant had aided Big
Ronnie in killing the victims. See id.
5 An indictment to be sufficient must give day, month and year of the commission of the
offense. Failure of an indictment to allege the date of the commission of an offense
constitutes fundamental error.
It has been frequently said[, however, that] when an “on or about” date is alleged
19
appellant claims that the trial court orally amended the indictment, which is impermissible,
and the record does not contain a signed written order amending the date of the offense
in the indictment.6 By his third issue, appellant “contends that the trial court erred in
including the date October 13, 2018, in the jury charge when the indictment alleged May
16, 2019” because the trial court failed to amend the indictment.
In Guerrero-Acosta v. State, this Court analyzed the nature of an amendment to
an indictment noting that “the court of criminal appeals, explained ‘that neither the State’s
motion to amend nor the trial court’s granting thereof is an amendment; rather the two
comprise the authorization for the eventual amendment of the charging instrument.’” See
No. 13-17-00560-CR, 2018 WL 5832097, at *4 (Tex. App.—Corpus Christi–Edinburg
Nov. 8, 2018, no pet.) (mem. op., not designated for publication) (citing and quoting Riney
v. State, 28 S.W.3d 561, 564 (Tex. Crim. App. 2000)). In our analysis of the State’s
attempted amendment to the indictment, we stated that the purported amendment would
“have elevated” the originally charged offense to a third-degree felony. Id. at *5. We
explained that the State “received authorization to amend the indictment, but it never took
any steps to effect the amendment.” Id. at *4. Additionally, we stated that there is no
as the date of the commission of the offense the time mentioned must be a date anterior
to the presentation of the indictment and not so remote that prosecution is barred by the
statute of limitation[s]. Under such circumstances, the State is not bound by the date
alleged, but conviction may be had upon proof that the offense was committed any time
prior to the return of that indictment that is within the period of limitation.
Ex parte Hyett, 610 S.W.2d 787, 789 (Tex. Crim. App. 1981).
6 “The requirement of an objection under article 1.14(b) applies only to a defect, error, or irregularity
in an indictment, and not to procedural matters such as an error in the process of amending an indictment.”
Guerrero-Acosta v. State, No. 13-17-00560-CR, 2018 WL 5832097, at *4 (Tex. App.—Corpus Christi–
Edinburg Nov. 8, 2018, no pet.) (mem. op., not designated for publication). Thus, under these
circumstances, appellant was not required to preserve error. See id.20
authority supporting a conclusion “that an indictment is effectively amended through an
oral motion and ruling from the trial court.” Id. Accordingly, we explained that the State’s
oral motion to amend the indictment and the trial court’s oral grant of such motion “merely
authorized the State to amend the charging instrument” and “the State failed to file an
amended indictment.” Id. We held, “While the methods for amending an indictment may
vary, it is clear that a written amendment, standing alone or incorporated into the motion
or order, must be included in the record for the amendment to be valid.” Id. In addition,
we explained that “the State never filed a written motion containing the proposed
amendment” and the State did not “file a written amendment with the trial court after
receiving authorization to amend the indictment.” We concluded that “under these
circumstances . . . the indictment was never amended, and the original indictments
remain in full force and effect.” Id.The facts here are distinguishable from Guerrero-Acosta. Here, the record reflects
that on August 5, 2021, the State filed its second amended motion to amend the
indictment. The trial court signed an order granting the State’s motion to amend the
indictment on August 5, 2021, and the amended indictment is included in the record.
Thus, unlike the facts of Guerrero-Acosta, here, the State received authorization from the
trial court to amend the indictment, and the record contains a written amended
indictment.7 Id. We overrule appellant’s second and third issues.8
7 The amended indictment correctly states that the offense was committed “on or about the 13th
day of October, 2018.” Appellant did not file a motion to quash the amended indictment.
8 Appellant’s third issue is premised on a conclusion that the trial court’s amendment to the
indictment was ineffective. However, because we have determined that the trial court properly amended
the indictment, appellant’s third issue is meritless.
21
III. ARTICLE 28.10
By his fourth issue, appellant contends that the trial court should have granted his
request for a ten-day continuance for trial pursuant to article 28.10(a) of the Texas Code
of Criminal Procedure because the trial court allowed the State to amend the indictment
two days before trial. See TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (providing that once
the trial court allows the State to amend the indictment before trial on the merits
commences, “[o]n the request of the defendant, the court shall allow the defendant not
less than 10 days . . . to respond to the amended indictment.”). The State responds that
appellant has not shown that he suffered prejudice due to the trial court’s denial of his
motion for continuance.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Cruz v. State, 565 S.W.3d 379, 381 (Tex. App.—San Antonio 2018, no pet.).
No abuse of discretion occurs if the trial court’s ruling is within the zone of reasonable
disagreement. See id.A defendant must show that he was prejudiced by the trial court’s denial of his
motion for continuance to prevail on appeal. Heiselbetz v. State, 906 S.W.2d 500, 511
(Tex. Crim. App. 1995). To establish an abuse of discretion, an appellant must show that
the trial court erred in denying the motion for continuance and that the denial actually and
specifically prejudiced appellant’s defense. See Gonzales v. State, 304 S.W.3d 838, 842
(Tex. Crim. App. 2010). That a party “merely desired more time to prepare does not alone
establish an abuse of discretion.” Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App.
22
1996) (per curiam).
“Article 28.10 of the Code of Criminal Procedure provides the guidelines for when
an indictment can be amended.” James v. State, 425 S.W.3d 492, 499 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d). Specifically, an indictment may be amended at any
time before the date of trial on the merits commences as to a matter of form or substance.
TEX. CODE CRIM. PROC. ANN. art. 28.10(a). “On the request of the defendant, the court
shall allow the defendant not less than 10 days, or a shorter period if requested by the
defendant, to respond to the amended indictment or information.” Id. (Emphasis added).
Here, the trial court properly allowed the State to amend the indictment prior to
trial, but the trial court erred by denying appellant’s request for a ten-day continuance.
See id. Thus, we must determine if appellant was harmed by the trial court’s error. See
TEX. R. APP. P. 44.2; Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Flores
v. State, 139 S.W.3d 61, 65–66 (Tex. App.—Texarkana 2004, pet. ref’d).
B. Harm Analysis Applies to an Article 28.10 Violation
Appellant, citing Beebe v. State, argues that because the trial court had a
mandatory duty to grant his motion for continuance pursuant to article 28.10 the “error
under article 28.10 is categorically exempt from harmless-error analysis.” 811 S.W.2d
604, 606 (Tex. Crim. App. 1991). Thus, appellant claims that because this error is exempt
from the harmless-error analysis, we must remand the case to the trial court for a new
trial pursuant to article 28.10. See id. (citing and relying on Sodipo v. State, 815 S.W.2d
551, 556 (Tex. Crim. App. 1990) (op. on motion for reh’g)).
23
In Beebe, the court of criminal appeals held that article 28.10 was mandatory, and
the trial court’s denial of the defendant’s motion for a continuance was error, which
required no harm analysis. Id. The court remanded the case to the trial court for a new
trial. Id.There are two reasons why we believe that Beebe no longer applies to article
28.10. First, Beebe relied on Sodipo and Hillin, which were both implicitly overruled by
Wright v. State, 28 S.W.3d 526, 531–32 (Tex. Crim. App. 2000). See Flores, 139 S.W.3d
at 65–66 (acknowledging that although the Texas Court of Criminal Appeals has not
explicitly overruled Sodipo, “the court’s more recent jurisprudence suggests harm
analysis is required”) (first citing Matchett v. State, 941 S.W.2d 922, 928 (Tex. Crim. App.
1996); and then citing Cain, 947 S.W.2d at 264).
In both Sodipo and Hillin, the court of criminal appeals held that an error pursuant
to article 28.10 did not require a harm analysis. Sodipo v. State, 815 S.W.2d 551, 556
(Tex. Crim. App. 1990) (op. on motion for reh’g) (“We conclude that in order to give effect
to the full meaning and intent of Article 28.10, . . . the error complained of in the instant
case, i.e., that the State should not be permitted to amend a charging instrument on the
day of trial prior to commencing trial on the merits over the defendant’s objection, should
not be subjected to a harm analysis.”); Hillin v. State, 808 S.W.2d 486, 488 (Tex. Crim.
App. 1991) (plurality op.) (concluding that “the court of appeals was erroneous in its
determination under the facts of this case that the harmless error rule applied to Section
(a)” of article 28.10).
24
Subsequently, in Wright, the court of criminal appeals relying on Cain and Texas
Rule of Appellate Procedure 44.2, held that the amendment of an indictment in violation
of article 28.10 is subject to a harm analysis. Wright, 28 S.W.3d at 531–32 (“We need not
determine whether the amendment to the indictment was indeed effective or whether the
trial court erred in denying appellant ten days to prepare for trial [pursuant to article 28.10].
Rather, we hold that appellant was not harmed by these events.”); Hamann v. State, 428
S.W.3d 221, 225 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (stating that we
disregard violations of article 28.10 “unless the trial court’s error affects the defendant’s
substantial rights”); see also Dukes v. State, 239 S.W.3d 444, 447 (Tex. App.—Dallas
2007, pet. ref’d) (holding that Cain and Wright implicitly overruled “Sodipo’s holding that
violations of article 28.10 are reversible without a harm analysis”); Padilla v. State, 278
S.W.3d 98, 102 n.2 (Tex. App.—Texarkana 2009, pet. ref’d) (recognizing that although
“Sodipo has not been formally overruled by this state’s highest criminal court, that court’s
subsequent jurisprudence suggests Sodipo is, in fact, no longer sound” and listing courts
of appeals’ decisions that have now determined that a harm analysis applies to Article
28.10 error) (first citing Trejos v. State, 243 S.W.3d 30, 41–42 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d); then citing Dukes, 239 S.W.3d at 446–48; and then citing Curry v.
State, 1 S.W.3d 175, 178–80 (Tex. App.—El Paso 1999), aff’d, 30 S.W.3d 394 (Tex. Crim.
App. 2000)); see also Flores, 139 S.W.3d at 65–66.
Second, Rule 44.2 was amended after Sodipo and Hillin. See Curry, 1 S.W.3d at
178 (explaining that the rules of appellate procedure in effect as of September 1, 1997,
now provide that in criminal cases, we subject all errors constitutional or otherwise to an
25
appropriate harm analysis); see Sodipin, 815 S.W.2d at 556 (determining issue prior to
September 1, 1997); Hillen, 808 S.W.2d at 488 (same); see also Beebe, 811 S.W.2d at
606 (same). Regarding an alleged violation of art. 28.10, many of our sister courts of
appeal have determined a harmless error analysis is appropriate. See James, 425
S.W.3d at 500 (explaining that the court has recognized that Sodipo’s holding that no
harm analysis is required when a 28.10 violation occurs has been implicitly overruled);
Padilla, 278 S.W.3d at 102; Trejos, 243 S.W.3d at 41 (determining whether the trial court’s
erroneous ruling under article 28.10 was harmless error under Rule 44.2(b)); Dukes, 239
S.W.3d at 447; Flores, 139 S.W.3d at 66 (recognizing that the court of criminal appeals
has not overruled Sodipo in the specific context of 28.10 but following Cain determining
that a harm analysis is required); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.—Fort
Worth 2001, no pet.) (assuming that the trial court committed error under 28.10 and
applying a harm analysis); Curry, 1 S.W.3d at 178; Westfall v. State, 970 S.W.2d 590,
596 (Tex. App.—Waco 1998, pet. ref’d); see also Tucker v. State, No. 10-17-00154-CR,
2018 WL 6543944, at *4 (Tex. App.—Waco Dec. 12, 2018, pet. ref’d) (mem. op., not
designated for publication) (applying a harm analysis to a 28.10 violation after
acknowledging that Sidpo and Hillin were impliedly overruled); Mason v. State, No. 10-
05-00053-CR, 2006 WL 348578, at *2-3 (Tex. App.—Waco Feb. 15, 2006, pet. ref’d)
(mem. op., not designated for publication); Scoggins v. State, No. 03-04-00555-CR, 2006
WL 1126185, at *2–3 (Tex. App.—Austin Apr. 27, 2006, pet. ref’d) (mem. op., not
designated for publication). Accordingly, we conclude that a harm analysis applies to a
violation of article 28.10.
26
Appellant acknowledges that in the event we determine that a harm analysis
applies, the error in this issue is statutory, not constitutional, and that rule 44.2(b) is
applicable to determine whether the error is reversible. Under rule 44.2(b), any statutory
“error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.” TEX. R. APP. P. 44.2(b).
To determine whether the error affected a substantial right, we consider
whether the [indictment], as written, informed the defendant of the charge
against him sufficiently to allow him to prepare an adequate defense at trial
and whether prosecution under the erroneous [indictment] would subject
the defendant to the risk of being prosecuted later for the same crime.
Dukes, 239 S.W.3d at 447–48.
C. Change of Date
First, appellant complains that he was harmed when the State amended the date
in the indictment because although “the indictment alleged ‘on or about’ there is a
meaningful difference between an offense that occurred in May 2019 and one that
occurred in October 2018.” This issue has already been addressed by the Texas Court
of Criminal Appeals, which concluded that the denial of a continuance on the basis that
the State amended the date in the indictment is harmless. See Wright, 28 S.W.3d at 532.
In Wright, the court explained the following:
It is well settled that the “on or about” language of an indictment allows the
[S]tate to prove a date other than the one alleged as long as the date proven
is anterior to the presentment of the indictment and within the statutory
limitation period. There is no statute of limitations period for murder. Hence,
when [the] appellant was indicted for murder, he was put on notice to
prepare for proof that the crime happened any time before the presentment
of the indictment.
Id.27
Here, the original date and the date of the amended indictment were both prior to
the presentment of the indictment. Moreover, there was no confusion shown in the record
about the incident, which occurred at a residence where appellant participated in a brawl
resulting in the death and injury of multiple members of the Sandoval family. Therefore,
appellant was put on notice to prepare for proof that the crime happened any time before
the presentment of the indictment. See id. (concluding that “[b]ecause both the original
date and the date of the attempted amendment, which differed by two days, were prior to
the presentment of the indictment, the indictment provided adequate notice for proof of
either date”). We overrule appellant’s fourth issue to the extent he argues that he was
harmed by the trial court’s denial of his motion for continuance. See id.D. Change of Victim’s Name
Next, appellant asserts that he was harmed by the trial court’s denial of his motion
for continuance because the State amended the name of one of the victims which should
cause this Court to “harbor grave doubt about the sustainability of the convictions absent
the error.” Specifically, as we understand it, appellant argues that confusion about the
victims’ names occurred because three of the victims went by the name Juan Sandoval
and there was “no evidence of [the victim’s alias in the autopsy report] in the trial.”
The original indictment listed the victim, Baby Juan, as Jose Martinez Sandoval.
The amended indictment listed Baby Juan as Juan Sandoval III, a/k/a Juan Jose Martinez
Sandoval III. At trial, the parties and the witnesses referred to Juan Sandoval III as “Baby
Juan.” There is nothing in the record indicating that appellant or the witnesses were
confused about which victim the State accused appellant of killing. When he testified,
28
appellant was not confused about which victims he allegedly shot, and he specifically
denied shooting Baby Juan and claimed that Big Ronnie shot Baby Juan. At no time
during the trial was there any indication that the trial court’s failure to grant a ten-day
continuance had any impact on appellant’s ability to prepare a defense. Additionally,
appellant does not claim that it did so, and he does not point to anywhere in the record
where his defense was affected by the trial court’s failure to grant him the ten-day
continuance. See Flowers v. State, 815 S.W.2d 724, 729 (Tex. Crim. App. 1991) (“The
‘substantial right’ affected may [require] that the inquiry will be whether the amendment
had an impact on the defendant’s ability to prepare a defense, or it may concern some
other ‘substantial right’ claimed by a defendant so that the inquiry or focus of prejudice is
different depending on the ‘substantial right’ violated.”).
In addition, the amended indictment does not put appellant at risk of being
prosecuted later for the same crime. Dukes, 239 S.W.3d at 447–48. Therefore, under the
circumstances in this case, we are unable to state that appellant suffered any harm from
the trial court’s denial of his motion for continuance.9 See Flowers, 815 S.W.2d at 729(finding no prejudice to any substantial rights, when the trial court allowed the State to
change the name of the owner of the property from the State to “George Autry” because
“[t]he record of the hearings clearly show[ed] that all the parties knew this amendment
9 Appellant does not claim that he was unable to prepare an adequate defense due to the trial
court’s failure to grant his request for a ten-day continuance, and he does not state that his substantial
rights were harmed in any other way. See Flowers v. State, 815 S.W.2d 724, 729 (Tex. Crim. App. 1991)
(“For example, if the record shows that the amendment is made so as to charge a different occurrence or
incident than that originally alleged in the indictment, the substantial rights of a defendant would be
prejudiced in part because he has been denied any grand jury review of the offense.”). He simply states
that we should “harbor grave doubt” of the jury’s verdict. That is the extent of his argument.
29
dealt with the same occurrence of theft as that alleged prior to any amendments” and
“[t]he amendment simply altered the allegation in a fact situation where the State had
several choices of owners under V.T.C.A. Penal Code, § 1.07(a)(24)”). We overrule
appellant’s fourth issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
13th day of April, 2023.
30