BOBBY ORTEGA A/K/A BOBBY BROWN v. THE STATE OF TEXAS--Appeal from 105th District Court of Kleberg County (Majority)
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COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
A/K/A BOBBY BROWN,
THE STATE OF TEXAS,
On appeal from the 105th District Court
of Kleberg County, Texas.
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
By one issue, appellant Bobby Ortega a/k/a Bobby Brown (“Ortega”) asserts that
insufficient evidence supports his convictions for one count of murder, see TEX. PENAL
CODE ANN. § 19.02(b) (West 2011) and two counts of aggravated assault.
22.02(a) (West 2011). We affirm.
See id. §
In the late-night hours of August 7, 2010, RAX Sports Bar in Kingsville turned into
a crime scene after a bar brawl left 20-year-old Matthew “Matt” Garcia dead2 and his
23-year-old brother, Jason Garcia, and 30-year-old Ernesto “Ernie” Garza bleeding
profusely from stab wounds.
A Kleberg County grand jury indicted Ortega for Matt’s
murder and the aggravated assaults of Jason and Ernie. The State presented the
following evidence at Ortega’s jury trial.
On August 7, 2010, Ortega and his girlfriend Chelsea Muñiz visited RAX Sports
Bar after attending a dance earlier in the evening with another couple, Danny Gonzales
and Sophia Campos.
Once at RAX, Ortega and the others entered a separate
nightclub located inside RAX known as Club, Inc.
Inside Club, Inc., witnesses testified
that Ortega and Matt approached each other and exchanged words, but later shook
hands and separated.
After that exchange, Sophia and Danny approached Matt, who was standing with
his brothers Jason and Jaime Garcia. Several witnesses recalled that Sophia cussed
and yelled at Danny to, as Jason testified, “go after” Matt for a previous altercation that
the Garcia brothers had with Sophia’s cousin.
Club, Inc. bartender Ozzie Mejorado
testified that she then witnessed Sophia make a move toward Matt with Danny and
Bobby in tow, which then erupted into the brawl. Club, Inc.’s disc jockey Juan Salazar
corroborated how the fight unfolded as he saw it atop the dance floor from his deejay
As this is a memorandum opinion and because all issues of law presented by this case are well
settled and the parties are familiar with the facts, we will not recite the law and the facts in this opinion
except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R.
APP. P. 47.4.
Nueces County medical examiner Ray Fernandez, M.D. autopsied Matthew Garcia’s body. Dr.
Fernandez testified that 20 sharp-force injuries from stab wounds across Matt’s body caused his death.
Salazar likened the fight to an attack by “a pack of wolves.”
Once the fight dissipated and the crowd disbursed, Jaime located and drove his
bleeding brothers to Christus Spohn hospital in Kingsville.
Jason testified that on the
car ride to the hospital, Matt said that he “got stabbed” and was fading in and out of
Jason also testified that at that time, his body was aching, and he felt
like he could not breathe.
At the hospital, Matt died and Jason was treated for his
Ernie, a bystander who intervened in the brawl to help break it up, stayed
behind at RAX, spoke to police and paramedics, and was eventually hospitalized for six
stab wounds to the back, neck, and ear.
Jurors found Ortega guilty for each count alleged in the indictment and assessed
punishment at life imprisonment for Matt’s murder, and twenty years’ imprisonment for
each aggravated assault count.
The trial court ordered that the sentences run
This appeal ensued.
Ortega’s sole issue asserts that the evidence is insufficient to sustain any of his
Standard of Review
When reviewing a defendant’s sufficiency challenge, we view 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.”
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.
State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319
(1979). The jury is the sole judge of the credibility of witnesses and the weight to be
given to their testimonies, and the reviewing court must not usurp this role by substituting
its own judgment for that of the jury.
Montgomery, 369 S.W.3d at 192. Thus, our duty
is “simply to ensure that the evidence presented supports the jury's verdict and that the
State has presented a legally sufficient case of the offense charged.”
citations omitted). When faced with a record supporting contradicting inferences, we
must presume that the jury resolved such conflicts in favor of the verdict, even if not
explicitly stated in the record.
Id. (citing Brooks, 323 S.W.3d at 899 n.13).
The elements of the offense are measured as defined by a hypothetically correct
Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing
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
By its first count, the State alleged that Ortega murdered Matt.
hypothetically correct jury charge authorized by the indictment in this case, Ortega is
guilty of murder if he:
(1) with the intent to cause serious bodily injury, (2) committed an
act clearly dangerous to human life that caused Matt’s death; or (1) committed or
attempted to commit aggravated assault, and (2) in the course of and in furtherance of
the commission or attempt to commit said aggravated assault, (3) committed or
attempted to commit an act clearly dangerous to human life that caused Matt’s death.
See TEX. PENAL CODE ANN. § 19.02.
Under a hypothetically correct jury charge, Ortega committed aggravated assault
if he (1) intentionally, knowingly, or recklessly caused bodily injury to Matt, and either, (a)
caused serious bodily injury to Matt; or (b) used or exhibited a deadly weapon, to wit: a
knife or sharp object during the commission of the assault.
See id. §§ 22.01–.02.
Ortega argues that no evidence connects Ortega to the commission of Matt’s
Nueces County Medical Examiner, Dr. Ray Fernandez,
testified that Matt’s autopsy revealed twenty sharp-force injuries caused by stab wounds
which resulted in his death.
All of the witnesses placed Ortega and Matt in the middle of
the fight at Club, Inc. on August 7, 2010.
Matt’s sister, Byanca Garcia, testified that she
saw Matt and Ortega punching each other that night.
Byanca also testified that she saw
Bobby make “stabbing” motions toward her brother’s body and gestured the motion for
Byanca admitted, however, that she never saw a knife, but did see Ortega
“stabbing [her] brother.” Club, Inc. deejay Salazar testified that he witnessed Ortega
also make “stabbing” motions toward Matt, but did not see a knife or blood.
testified that he saw Ortega fighting with Matt, but it “didn’t look like he was punching
Instead, Jason stated that Ortega made a non-punching motion toward his
brother and demonstrated the motion for the jury.
Leonessia Mejorado, another Club, Inc. patron, testified at trial.
stated that she remembered a male, who wore a red and white striped shirt, make
“poking” gestures rather than punching gestures toward Matt, but never saw a knife in
his hands. Witness Sonia Vela told the jury that she saw a “little guy” at Club, Inc. who
wore a red and white striped polo-style shirt, had his arm wrapped around Matt’s body,
and thrust his hand toward Matt.
Sonia replicated the motion for the jury.
Inc. patrons Nori Martinez and Kayla Peña also testified.
Nori and Kayla identified
Ortega through a police photo lineup as the individual who made stabbing motions
toward Matt during the fight.
Nori testified that she saw Ortega “all bloody,” wearing a
striped shirt, but then saw him wearing a white t-shirt.
Kayla stated that she saw Matt
on the floor, attempting to get up, and saw Ortega make three thrusts toward him.
Ortega’s girlfriend, Chelsea, and Ortega’s sister, Krystyne Gonzales, each
testified that Ortega wore a red, black, and white striped collared shirt to Club, Inc. that
Chelsea testified that Ortega sliced his finger during the fight that night and told
her it was from a broken bottle, but he did not seek medical treatment.
According to Dr.
Fernandez, it is common for people who stab others to cut themselves after the object
becomes soaked with blood and slippery to the touch.
Chelsea also told the jury that Ortega sometimes carried a pocket knife, but he did
not have a knife with him that night. The record also shows that Ortega, Chelsea, and
Krystyne immediately left the scene after the brawl to go home, which is indicative of a
“consciousness of guilt.”
See Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus
Christi 1993, writ ref’d) (noting that “any conduct on the part of a person accused of a
crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ may be
received as a circumstance tending to prove that he committed the act with which he is
Kingsville Police Detective Velma Salinas interviewed Ortega two days after
Detective Salinas testified that Ortega told her that a “big guy” in a
Yankees cap came at him with a knife that night, he put out his hand, and that is what
caused the cut on his hand. Ortega also denied to police that he possessed a knife that
night or that he even owned a knife.
The State admitted a recorded jail telephone
conversation made after Ortega’s arrest in which he told an unknown caller “I’m glad I
got that shit out of there before them [sic] fools got there.”
After viewing this evidence in the light most favorable to the verdict, we conclude
that any rational trier of fact could have found that Ortega committed the essential
elements of Matt’s murder beyond a reasonable doubt.
See TEX. PENAL CODE ANN. §§
19.02; 22.01–.02; see generally Montgomery, 369 S.W.3d at 192.
C. Counts Two and Three—Aggravated Assault
By its second and third counts of the indictment, the State alleged that Ortega
committed an aggravated assault against Jason and Ernie.
Under a hypothetically correct jury charge, Ortega is guilty of aggravated assault if
he (1) intentionally, knowingly, or recklessly caused bodily injury to Jason and Ernie and
(a) caused serious bodily injury to Jason and Ernie; or (b) used or exhibited a deadly
weapon, to wit: a knife or sharp object during the commission of the assault.
PENAL CODE ANN. §§ 22.01–.02.
Ortega argues that no evidence connects him to either one of the aggravated
assaults. We, again, disagree.
Jason testified that when the fight initially commenced,
he focused his attention on Danny and fought with him.
Jason then stated that while he
fought Danny, he “felt a sharp pain” on his back and saw somebody run around him in a
white t-shirt, “like [Ortega] had on” and attacked Ernie against the wall.
that she saw Ortega in a striped shirt and then a white t-shirt that night.
that she also witnessed Jason and Ortega fighting that night.
Ernie testified that he intervened in the brawl in order to help break up the fight.
On cross-examination, Ernie testified that he was not “aware” if Ortega stabbed him
because he would have seen it. Ernie indicated that during the melee he ended up on
top of Ortega and felt hits to his back.
RAX Sports Bar owner Rogelio “Rocky”
Dominguez also testified about his observations that night and the role he played in
trying to break up the fight.
According to Rocky, he approached the brawl and grabbed
a “small guy”—later identified as Ortega—for a couple of seconds before Ortega broke
away from him and attacked Ernie from behind.
Rocky gestured for the jury how Ortega
broke away from him and later attacked Ernie.
Rocky testified that Ernie grabbed
Ortega, and they both fell into a pile of people along with another “small guy.” Once in
the pile, Rocky testified that Sophia began to hit Ernie on the back with her shoe telling
Ernie to “get off of [her] husband.”
Dr. Fernandez testified that he reviewed Jason and Ernie’s medical records as
According to Dr. Fernandez, Jason and Ernie’s injuries were of the type that
required hospitalization and carried the risk of death because the stab wounds were
located in the chest area.
After viewing this evidence coupled with the evidence outlined in Part II-B, in the
light most favorable to the verdict, we conclude that any rational trier of fact could have
found that Ortega committed the essential elements of aggravated assault against Jason
and Ernie beyond a reasonable doubt.
See TEX. PENAL CODE ANN. §§ 19.02;
22.01–.02; see generally Montgomery, 369 S.W.3d at 192.
Ortega’s issue is overruled.
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
25th day of April, 2013.