Jose M. Garza v. The State of Texas--Appeal from 81st Judicial District Court of Wilson County

No. 04-98-00575-CR

Jose M. GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 98-01-007-CRW
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 14, 2000

AFFIRMED

Jose Garza was convicted of aggravated assault with a deadly weapon. He was sentenced to fifteen years confinement in the state penitentiary and ordered to pay a $10,000 fine. In two points of error, Garza argues that the evidence is factually insufficient to support his conviction and that the trial court erred in denying his motion for a new trial without an evidentiary hearing. We affirm.

Factual & Procedural Background

The relationship between the Cavazos family and the Garza family, both longtime residents of Sutherland Springs, Texas, deteriorated over the years. On Sunday, November 9, 1997, three confrontations occurred between the two families. In the first confrontation, Mario and Eli Cavazos argued with Roy and Joe Garza in Roy's truck. The argument ended with Mario throwing a rock at the Garzas in response to what Mario testifies was Roy's failed attempt to hit him with the truck. The Garzas argue that the damage to the truck was caused by "shots" from the Cavazoses. Shortly thereafter a second confrontation ensued between Mario and Joe Garza, who was in a van. The Cavazos family members testified that Joe Garza fired two shots. A member of the Cavazos family called the police and subsequently a white car containing Jesse, Joe and Roy Garza approached. During this third confrontation Joe Garza does not dispute that he shot Mario Cavazos. Mario suffered injuries to his intestines and the bullet lodged in his leg.

At 9:00 p.m. Deputy Laughlin was dispatched to the Cavazos residence in Sutherland Springs in response to the shots being fired after the second confrontation. Before he arrived at the residence, he was notified that Mario had already been shot and proceeded to meet Officer Jackson at the Garza residence. Officer Laughlin inspected both the pickup truck and the white car finding no damage caused by gunshots. He did find damage consistent with rock hits and also found a live nine millimeter bullet on the ground next to the Garzas' white car. Upon initial questioning Joe Garza denied having a gun. After being Mirandized, Joe Garza gave permission to search his house so long as he was allowed to go into the house with them. Chief Deagan then asked Roy Garza where the gun was. Roy and Jesse took the officers to a freezer containing a black pistol case containing the gun. Deputy Laughlin went back to the Cavazos residence and found a nine millimeter shell casing and blood from where Mario had fallen.

Later that night, after being identified as the shooter and subsequently arrested, Joe Garza gave a written statement to Chief Deagan explaining his shooting as an attempt to scare the Cavazos Family. Chief Deagan confirmed that the shell casing found at the Cavazoses' house was ejected from the gun found in the Garzas' freezer.

Sufficiency of the Evidence

In his first point of error, Garza argues that the evidence is factually insufficient to prove beyond a reasonable doubt that he shot Mario Cavazos. In examining the factual sufficiency of the evidence, we must view all the evidence equally. See Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). This court may set aside a verdict for factual insufficiency "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 129. We are not free to reweigh the evidence. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135; Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

Garza claims that substantial exculpatory evidence presented during the trial demonstrates that the jury's verdict, that he knowingly and intentionally shot Mario Cavazos, is manifestly unjust and shocks the conscience. We recognize that the record does show that the Cavazos family, namely Eli Cavazos, had caused some criminal mischief in Sutherland Springs in the past and that Mario's testimony downplaying the family's feuding history was contrary to the testimony of Officer Ayala. We also recognize Joe Garza's contention that he drove to the Cavazoses to resolve the matter and that he claims he did not aim at Mario Cavazos.

But considering Mario's testimony that Joe Garza was pointing the gun "right at me from the window of the car" and the forensic evidence showing that the nine millimeter shell casing found in the white car was a match with the gun Joe Garza used and was the same gun placed in Jesse's freezer, the overwhelming weight of the evidence does not show the verdict to be "clearly wrong and unjust." Clewis, 922 S.W.2d at 129. Regarding Garza's contention that the Cavazoses had fired at their truck, the officers who conducted the investigation noticed only dust and caliche particles embedded on the windshield and within the broken headlight. This is consistent with Mario's testimony that he threw rocks and did not fire a gun. That evidence coupled with Lisa and Eli Cavazos's testimony supporting Mario's identification of Joe Garza as the shooter along with Joe Garza's initial insistence that he did not own a gun, a fact that was later disproved, further supports the jury's conviction.

Garza's first point of error is overruled.

Denial of motion for new trial without an evidentiary hearing

In his second point of error, Garza argues that the trial court erred in denying his motion for a new trial without an evidentiary hearing. He argues that he was entitled to a hearing on the motion because it was supported by an affidavit alleging juror misconduct. The affidavit states that one of the jurors told an investigator that the jury based its decision to assess a fifteen-year sentence on its belief that Garza would be released on parole in seven years.

The motion contains no indication that Garza desired a hearing. In open court, Garza's counsel requested permission to present the motion more than ten days after it was filed. See Tex. R. App. P. 21.6. After the trial judge stated that he would consider the motion presented, the following colloquy occurred:

MS. KUBECKA: Thank you, Judge, that is all.

Do you want a hearing date on it?

THE COURT: If you would like to set a hearing.

MS. KUBECKA: That is up to the Judge.

THE COURT: It has been presented, and I will take it under advisement.

MS. KUBECKA: Thank you, Judge.

Although the judge expressed a willingness to hold a hearing, counsel did not indicate that she wanted a hearing set, nor did she indicate that she had any evidence to present. Since Garza failed to make the trial judge aware that he desired a hearing, he cannot complain on appeal of the court's failure to conduct a hearing. See Tex R. App. P. 33.1(a).

Moreover, Rule 606(b) of the Texas Rules of Evidence provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

The jury's discussion of parole law is not an outside influence. See Hines v. State, 3 S.W.3d 618, 623 (Tex. App.-Texarkana 1999, pet. ref'd). Accordingly, neither a juror nor an investigator may testify regarding the jury's discussion of parole law. Therefore, there is nothing in the record to indicate that Garza had any admissible evidence to present at a hearing.

The second point of error is overruled.

Conclusion

For the reasons stated herein, we affirm the judgment of the trial court.

Tom Rickhoff, Justice

DO NOT PUBLISH