Francisco Torres v. the State of Texas ( 2023 )

NUMBER 13-22-00465-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FRANCISCO TORRES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 379th District Court
of Bexar County, Texas.
MEMORANDUM OPINION 1
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
A jury convicted appellant Francisco Torres for the offenses of: unlawful carrying
of a firearm by a felon, a second-degree felony (Count 1); tampering with or fabricating
physical evidence, a third-degree felony (Count 2); and unlawful possession of a firearm
1This case was transferred from the Fourth Court of Appeals in San Antonio to this Court pursuant
to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
by a felon, a third-degree felony (Count 3). See TEX. PENAL CODE ANN. §§ 37.09,
46.02(e)(1), 46.04. The jury sentenced appellant to five, six, and four years’ imprisonment
on Counts 1, 2, and 3, respectively, with each sentence to run concurrently. By his sole
issue on appeal, appellant contends that the evidence was legally insufficient to support
his convictions. We affirm.
I. BACKGROUND
A grand jury indicted appellant on July 12, 2022. Count 1 of the indictment alleged
that on or about October 22, 2021, appellant
intentionally, knowingly, and recklessly carr[ied] a handgun on or about his
own person, and the defendant was not on the defendant’s own premises
or premises that were under the defendant’s own control, and the defendant
was not inside of or directly en route to a motor vehicle or watercraft that
was owned by the defendant or under the defendant’s control, and the
defendant was prohibited from possessing a firearm under Section 46.04(a)
of the Texas Penal Code, in that at the time of the commission of the
charged offense, the defendant had been previously convicted of [a] felony
offense . . . , and the defendant’s possession of the firearm occurred after
the fifth anniversary of the defendant’s release from confinement following
conviction of the felony, and the defendant possessed the firearm at 127
Henry Street, San Antonio, Texas, which was a location other than the
premises at which the defendant lived.
Count 2 of the indictment alleged that on or about October 22, 2021, appellant,
knowing that an investigation was in progress, to-wit: investigation in[]to the
shooting of Ashley Olmos, did intentionally and knowingly destroy a thing,
to-wit: evidence of the blood of Ashley Olmos located in the vehicle in which
[she] was transported to the hospital, with intent to impair its verity, legibility,
and availability as evidence in the investigation.
Count 3 of the indictment alleged that on or about October 22, 2021, appellant,
having been convicted of [a] felony offense . . . , did intentionally and
knowingly possess a firearm after the fifth anniversary of [his] release from
confinement or release from supervision under community supervision,
parole or mandatory supervision, following conviction of said felony at a
location other than the premises at which [he] lived, to-wit: 127 Henry Street,
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San Antonio, Texas.
Trial commenced on August 16, 2022. Most of the background facts come from a
video recording of appellant’s interview with police, which was admitted at trial as State’s
Exhibit 1 and played for the jury. On the morning of October 22, 2021, appellant was at a
house located at 127 Henry Street in San Antonio, which was not his residence. At some
point, a man showed up with a weapon that appellant desired to purchase. Ashley Olmos,
appellant’s girlfriend with whom he resided, arrived soon after. As appellant jubilantly
displayed his new purchase to Olmos, he accidentally shot her in the leg.
Appellant frantically loaded Olmos into his vehicle to rush her to the hospital. The
State played two 9-1-1 call recordings for the jury, admitted as State’s Exhibits 2 and 3.
In State’s Exhibit 2, a male requested emergency medical services (EMS) to 127 Henry
Street for a female who, he claimed, had been shot in the foot. Before EMS could respond,
the caller informed the 9-1-1 operator that the female had been taken from the scene to
a hospital. In State’s Exhibit 3, a security officer from the Children’s Hospital of San
Antonio reported that a twenty-nine-year-old woman named Ashley Olmos was being
treated for a gunshot wound to her thigh. He stated that somebody drove up to the
hospital, dropped Olmos off, and then departed.
After leaving the hospital, appellant went to an unidentified house. Appellant
informed an individual at that home what happened, and he was told to change his blood-
covered clothing and that he may have accidentally killed Olmos. Donning a borrowed
sweatshirt and gym shorts, appellant left, drove by 127 Henry Street, and wanted to admit
his wrongdoing to a female officer on the scene, but he could not go through with it. He
then drove to tell his mother about the incident and then to clean his car.
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Osvaldo Escobedo testified that he returned to his home from a friend’s house on
October 22, 2021, and saw a car parked in front, which he learned was appellant’s.
Escobedo stated that appellant offered him $30 to clean the car’s exterior. At some point,
Escobedo saw that the car’s back seats had been removed and were resting on the
ground. He saw that there was blood on the seats and asked appellant what happened.
Appellant informed Escobedo that he had accidentally shot his girlfriend. At that point,
Escobedo “freaked out” and left his house.
Officer Kenneth Cortez of the San Antonio Police Department (SAPD) testified that
on October 22, 2021, between 7:00 a.m. and 8:00 a.m., he was dispatched to 127 Henry
Street for a shooting. Officer Cortez interviewed some bystanders who did not witness a
shooting but heard the resulting commotion. Zareth Garay, who lived next door, testified
that he “heard and saw” people yelling. Garay stated that two men were “trying to rush [a]
lady to the hospital.” Garay recalled, among other things, that the men were “genuinely
trying” to help the injured woman. He heard one of the men apologize to the woman once
or twice. Officer Cortez testified that another witness heard a gunshot followed by “a lot
of screaming and yelling asking, Why did you shoot her? Why did you shoot your girl?”
Detective Dustin Kilpatrick of the SAPD testified that he received a call about a
shooting at 127 Henry Street and when he got to that address, he saw signs of a crime
scene, including blood in the house and on the back porch, but no victim. About twenty
to thirty minutes later, SAPD received a call from Children’s Hospital that somebody had
arrived with a gunshot wound, so he went to investigate. When he arrived at the hospital,
Detective Kilpatrick identified the victim as Olmos and spoke with the security officer who
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called 9-1-1. Detective Kilpatrick also reviewed surveillance footage which showed a car
pulling up to the hospital and a male dropping off Olmos. Detective Kilpatrick stated that
he identified the vehicle’s license plate number, and police then began searching for the
car.
Detective Jason Reno of the SAPD testified that he arrived at 127 Henry Street at
around 9:00 a.m. He received information that another SAPD detective spotted
appellant’s vehicle six to eight blocks away, so he went to surveil it. Detective Reno
testified that he saw appellant and two others “going in and out of the vehicle quite a bit”
and “moving things from the vehicle, putting them in the house, taking things from the
house, [and] going back out to the vehicle.” Reno stated that the men removed the
vehicle’s back seat and began vacuuming it and using cloths to wipe down its interior.
Reno watched the men clean the vehicle for a couple of hours until SWAT arrived to arrest
appellant.
After appellant was transported to SAPD headquarters, Detective Kilpatrick and
his partner, Detective Chad Tudor, interviewed him. The detectives read appellant his
Miranda rights, and appellant agreed to continue with the interview. After feigning
ignorance as to why he was at SAPD headquarters, and after telling a few versions of
what transpired, appellant finally admitted that he was holding a newly-purchased firearm
when he accidentally shot Olmos in the leg. Appellant stated that he “know[s he] fu[-]ked
up,” and that he was “not supposed to have possession of a firearm.” The State moved
to admit appellant’s judgment of conviction in a prior felony case from June 2014, and the
trial court admitted it into evidence. When asked by the detectives why he cleaned his
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car, appellant stated that he did not want Olmos to get upset at the sight of her blood in
the vehicle.
The parties then rested their cases. The jury convicted appellant and sentenced
him as stated above. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Appellant argues “that the evidence is not sufficient to find him guilty of the offense
of aggravated assault because the victim did not testify at trial, nor was any statement
made by her offered.” He continues: “In addition, no eyewitness testimony []or physical
evidence was offered proving appellant acted with intent or was reckless.” However, the
offense of aggravated assault was not charged in this case. In his prayer for relief,
appellant argues that the evidence was insufficient to support his convictions for
unlawfully carrying and possessing a firearm and tampering with physical evidence. We
will address those issues.
A. Standard of Review & Applicable Law
In reviewing the sufficiency of the evidence to support a conviction, we consider
the evidence ‘in the light most favorable to the verdict’ to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Delagarza v. State, 635 S.W.3d 716, 723 (Tex. App.—Corpus Christi–Edinburg
2021, pet. ref’d) (quoting Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App.
2020)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider both direct and
circumstantial evidence as well as all reasonable inferences that may be drawn from the
evidence and are not mere speculation. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.
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App. 2017); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “We resolve
any evidentiary inconsistencies in favor of the verdict, keeping in mind that the factfinder
is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give
their testimony.” Delagarza, 635 S.W.3d at 723 (first citing Walker v. State, 594 S.W.3d
330, 335 (Tex. Crim. App. 2020); and then citing TEX. CODE CRIM. PROC. ANN. art. 38.04).
“The sufficiency of the evidence is measured by comparing the evidence produced
at trial to ‘the essential elements of the offense as defined by the hypothetically correct
jury charge.’” Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (quoting Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury
charge ‘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.’” Id. (quoting Malik, 953 S.W.2d at 240).
A hypothetically correct jury charge would instruct the jury that the elements of the
offense of unlawful carrying of a weapon as charged in the indictment are: (1) appellant
(2) intentionally, knowingly, or recklessly carries on or about his . . . person a handgun
(3) while not on his own premises or premises under his control or “inside of or directly
en route to a motor vehicle or watercraft” which he owns and (4) “at the time of the offense,
was prohibited from possessing a firearm under [§] 46.04(a)” of the penal code. See TEX.
PENAL CODE ANN. § 46.02(a-7). In turn, § 46.04(a) of the penal code, relating to the
unlawful possession of a firearm, provides that “[a] person who has been convicted of a
felony commits an offense if he possesses a firearm . . . [after] the fifth anniversary of [his]
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release from confinement following conviction of the felony . . . at any location other than
the premises at which the person lives.” Id. § 46.04(a)(2). “‘Possession’ means actual
care, custody, control, or management.” Id. § 1.07(a)(39).
A hypothetically correct jury charge consistent with the indictment would instruct
the jury that the elements of the offense of tampering with or fabricating physical evidence
are: (1) appellant, (2) knowing that an investigation or official proceeding was in progress,
(3) destroyed evidence of Olmos’s blood (4) with intent to impair its verity, legibility, or
availability as evidence in the investigation. See id. § 37.09(a).
B. Analysis
After properly reciting the facts and the law relevant to a sufficiency of the evidence
review, the following is the extent of appellant’s briefing:
Appellant contends the evidence is legally insufficient because the witness
(Ashley Olmos) did not testify as to [a]ppellant being in possession of a gun
to shoot her. (See [Reporter’s Record] Index List of Witnesses, in which Ms.
Olmos is not listed as having testified)[.]
Appellant is not guilty of possession, since he was only looking at the
gun to make a potential purchase. There is no witness to any possession,
or shooting.
There is no evidence to support [a]ppellant tampering with evidence
if the incident was strictly an accident and he was not in possession of any
gun.
Nowhere in his brief does appellant recite the statutes under which he was convicted or
“the essential elements of the offense[s]” that he claims the State failed to prove beyond
a reasonable doubt. See Curlee, 620 S.W.3d at 778. And nowhere in his brief does
appellant cite to relevant authority supporting his propositions that the absence of
testimony from one of multiple witnesses is insufficient to support a conviction; that
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appellant could not have possessed a firearm when he was “only looking at the gun to
make a potential purchase”; or that a defendant cannot be convicted of tampering with
evidence if the underlying incident was an accident. See TEX. R. APP. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”). Accordingly, we overrule appellant’s issue on
appeal for insufficient briefing. See id.; Hall v. State, 663 S.W.3d 15, 35 (Tex. Crim. App.
2021) (overruling appellants issue on appeal because he did “not cite any legal authority
in support of this contention,” and the court would “not make [a]ppellant’s argument for
him"); Hinds v. State, 627 S.W.3d 803, 805 (Tex. App.—Corpus Christi–Edinburg 2021)
(overruling appellant’s arguments for insufficient briefing). Even if error were preserved,
we conclude that sufficient evidence exists in the record to support appellants convictions.
1. There is Legally Sufficient Evidence in the Record to Support
Appellant’s Convictions on Counts 1 and 3
Legally sufficient evidence supports appellant’s convictions on Counts 1 and 3.
Appellant admitted to Detectives Kilpatrick and Tudor that he bought the firearm at 127
Henry Street. Appellant stated that he lived at a separate address with Olmos. Appellant
admitted that the gun was in his hands when he accidentally shot OImos. Appellant
admitted that he “fu[-]ked up” and was “not supposed to have possession of a firearm,”
and a judgment for a prior felony conviction was admitted at trial. Olmos was admitted to
the hospital with a gunshot wound to her leg, supporting the contention that the use of a
firearm was involved in the offenses alleged. Officers and detectives investigating the
scene at 127 Henry Street saw a lot of blood inside the house and on the back porch,
supporting the contention that Olmos was shot at a residence that was not her or
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appellant’s own. And Officer Cortez testified that one witness informed him they heard
somebody yell “why did you shoot your girl?” That statement supports the contention that
appellant, Olmos’s boyfriend, was the shooter. This evidence sufficed to prove appellant
guilty of the offenses charged in Counts 1 and 3 beyond a reasonable doubt. See TEX.
PENAL CODE ANN. §§ 46.02(a-7), 46.04(a); Curlee, 620 S.W.3d at 778; Delagarza, 635
S.W.3d at 723.
2. There is Legally Sufficient Evidence in the Record to Support
Appellant’s Conviction on Count 2
The record also includes sufficient evidence to support appellant’s conviction for
tampering with physical evidence. See TEX. PENAL CODE ANN. § 37.09(a). First, appellant
admitted in his interview with the detectives that he knew if Olmos died, he might have
been arrested. Next, appellant dropped off his wounded girlfriend at the hospital, but did
not stick around. Instead, he departed to an unknown house where he was told to change
out of his blood-covered clothing, which he did. Appellant stated that he drove by 127
Henry Street, saw a female officer there, and wanted to admit his wrongdoing but did not.
And later, appellant spent hours cleaning his car. A reasonable juror could have
concluded from this evidence that appellant knew an investigation was underway and
attempted to destroy evidence to impede the investigation. See id. Although appellant
stated to the detectives that he cleaned his car because he did not want Olmos to become
upset by the sight of blood in the vehicle upon her discharge from the hospital, the jury
was free to discount his testimony. See Hernandez v. State, 161 S.W.3d 491, 501 (Tex.
Crim. App. 2005) (“[A] factfinder may disbelieve some or all of a witness’s testimony, even
when that testimony is uncontradicted.”).
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Legally sufficient evidence exists in the record to prove appellant’s conviction in
Count 2 beyond a reasonable doubt. See TEX. PENAL CODE ANN. § 37.09(a); Curlee, 620
S.W.3d at 778; Villa, 514 S.W.3d at 232; Delagarza, 635 S.W.3d at 723.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
15th day of June, 2023.
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