Freddy Villanueva v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00086-CR

Freddy VILLANUEVA, Appellant

v.

The STATE of Texas, Appellee

From the 63rd Judicial District Court, Val Verde County, Texas Trial Court No. 2021-0284-CR Honorable Sid L. Harle, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Delivered and Filed: June 28, 2023

AFFIRMED

A jury convicted Freddy Villanueva of murder. The jury assessed punishment at forty years

confinement and imposed a $5,000 fine. On appeal, Villanueva asserts two issues: (1) the evidence

is insufficient to sustain Villanueva’s guilt as a party to the offense; and (2) Villanueva was

egregiously harmed by the inclusion of particular language in the charge. We affirm.

BACKGROUND

On March 23, 2019, Villanueva, Kelvin Brown, Lennox Matthews, and Mario Rivera-

Vasquez went to several bars in Del Rio, Texas. The four rode in Brown’s vehicle, and either 04-22-00086-CR

Brown or Matthews drove. Villanueva neither owned a car nor drove Brown’s vehicle that night.

After spending the evening at multiple bars, the four went to Villanueva’s home. Villanueva lived

with his mother—Julie Villanueva—who was present at the residence with several other people,

including Manuel Sanchez, when the group arrived.

After returning home, Villanueva became “mad” with Sanchez and told him to get off his

property. Unprovoked, Villanueva punched Sanchez with sufficient force that Sanchez was

immediately knocked to the ground. Sanchez never stood up again. Afterwards, Brown and Rivera-

Vasquez continued to beat Sanchez with their hands and feet until Sanchez was rendered

unconscious. As the attack continued, Villanueva had to be restrained from further participation.

Both Rivera-Vasquez and Matthews testified at trial and provided similar accounts. Rivera-

Vasquez testified Villanueva “threw the first punch.” Matthews testified that “[Villanueva] came

out from the house while they were talking, and he just laid back and hit [Sanchez] with his fist.

Then [Sanchez] drops to the ground, tried to get back up, and then [Rivera-Vasquez] and [Brown]

was [sic] on top of him.” Brown then dragged Sanchez by his legs to the edge of the yard near the

curb where Sanchez had parked his vehicle.

The four then left in Brown’s vehicle. Prior to their departure, Matthews had picked up

Sanchez’s cell phone, and a member of the group destroyed the chip to the phone some time after

they left. A little while later, Villanueva received a call from his mother, Julie. Julie was

“tripping,” 1 and Villanueva told the group they needed to return to his home because Sanchez had

been beaten unconscious, was laying in his front yard, and Julie wanted him moved. Rivera-

1 It is unclear what Villanueva meant when he stated his mother was “tripping.” Two interpretations were suggested at trial: Under the first interpretation, Julie was incredibly angry. Under the second interpretation, Julie was high on cocaine.

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Vasquez testified it was understood they were returning to Villanueva’s home to “dispose of the

body.” Matthews drove the four back to the residence in Brown’s vehicle at Villanueva’s request.

Sanchez had originally driven to Villanueva’s residence in a red Dodge Nitro. When the

group returned to the residence, Sanchez—still alive, although unconscious—was placed in the

backseat of his own vehicle, which Rivera-Vasquez drove to a tire shop. Sanchez was left inside

the car. Rivera-Vasquez testified, “[Villanueva] suggested to me to leave him at the tire shop.”

Matthews—the driver—testified that Villanueva directed him to park on the side of a street and

wait for Rivera-Vasquez to return to the car. Matthews explained: “[Villanueva] told me, stay here,

because I guess [Villanueva] knew where [Rivera-Vasquez] went.” After leaving Sanchez at the

tire shop, Rivera-Vasquez returned to where Villanueva had directed Matthews to park.

In the morning, Mario Aguirre, the owner of the tire shop, contacted law enforcement after

finding Sanchez deceased in the red Dodge Nitro. Sanchez’s severely-beaten body was wedged

face-down on the floor in the backseat—his head pushed under the front seat and his left shoulder

lodged under the back seat. The medical examiner later observed that Sanchez had numerous

abrasions to his body and “significant” hemorrhaging to his neck muscles, consistent with his neck

having been stretched. She determined that Sanchez died from “positional asphyxiation,” and that

it was “impossible for him to get under there [the seat] on his own accord.”

Detective Oscar Gonzalez with the Del Rio Police Department served as the lead

investigator assigned to Sanchez’s murder. A few days after the incident, Gonzalez met with Julie.

She described what transpired at her residence. The day after meeting with Julie, law enforcement

attempted to locate Villanueva at his residence; however, it appeared to law enforcement that his

residence had been “emptied out.”

Police also interviewed Rick Menchaca. Menchaca was a longtime friend of Julie.

Menchaca testified he was at Villanueva’s residence during the incident. He stated that he saw

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both Sanchez and Villanueva at the residence. He further testified that, although he never observed

a fight, he heard a “commotion” or “altercation” taking place in the front yard when he was inside

the residence, and when he came outside, Sanchez was on the ground, and Villanueva had left.

Police later arrested Villanueva for Sanchez’s murder, and Villanueva gave a recorded

statement to Gonzalez that was played to the jury at trial. In his statement, Villanueva admitted he

went to his residence with Brown and Rivera-Vasquez (although he left out Matthews); became

angry with Sanchez and “shoved” or “pushed” him; and Villanueva had to be held back afterward.

After finding Villanueva guilty of murder, the jury assessed punishment at forty years

confinement and a $5,000 fine. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Villanueva asserts the evidence is legally insufficient to sustain a guilty

verdict.

Standard of Review

In a sufficiency claim, our role is “restricted to guarding against the rare occurrence when

a factfinder does not act rationally.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

We assess 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 offense beyond a reasonable doubt.

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) (citing Jackson v. Virginia, 443 U.S.

307, 318–19 (1979)). The essential elements of the offense are defined by the hypothetically

correct jury charge for the case. Ramos v. State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013).

Conflicting inferences are resolved in favor of the verdict. Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). Direct and circumstantial evidence are treated equally, and circumstantial

evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007).

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In reviewing the sufficiency of the evidence, we look at “events occurring before, during

and after the commission of the offense and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.” Guevara v. State, 152 S.W.3d 45, 49

(Tex. Crim. App. 2004) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)).

“Each fact need not point directly and independently to the guilt of the appellant, as long as the

cumulative effect of all the incriminating facts are sufficient to support the conviction.” Id. (citing

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987)). When the trial court’s charge

authorizes the jury to convict on more than one theory, as here, the verdict of guilty will be upheld

if the evidence is sufficient on any one of the theories. Id.

Applicable Law

As applicable to our analysis, a person commits the offense of murder if the person “intends

to cause serious bodily injury and commits an act clearly dangerous to human life that causes the

death of an individual.” TEX. PENAL CODE § 19.02(b)(2). “A person acts intentionally, or with

intent, with respect to the nature of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result.” Id. § 6.03(a). “A person acts knowingly, or with

knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably

certain to cause the result.” Id. § 6.03(b). Under the law of parties, “[a] person is criminally

responsible for an offense committed by the conduct of another if, acting with intent to promote

or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense.” Id. § 7.02(a)(2).

Analysis

According to Villanueva, the evidence is legally insufficient to sustain a guilty verdict

because (1) Villanueva threw a single punch and did not further participate in beating Sanchez;

(2) Villanueva was incapable of causing the group to return to dispose of Sanchez’s body because

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he did not own a car or drive; and (3) there is no evidence that Villanueva aided or directed how

Sanchez’s body was placed in the backseat of his vehicle.

The State responds that there is legally sufficient evidence that Villanueva, either acting

alone or together with Matthews, Rivera-Vasquez, and/or Brown as a party, with the intent to cause

serious bodily injury to Sanchez, committed an act clearly dangerous to human life that caused the

death of Sanchez by kicking and hitting Sanchez in the face and the body with Villanueva’s hands

and feet and/or by placing the body of Sanchez in the back of a car in such a manner that

asphyxiated Sanchez.

We consider the events occurring before, during, and after Sanchez’s death. The group

went drinking that night together; attacked Sanchez together; and left and returned together to

“dispose of” Sanchez’s body. Focusing on the fact that he hit Sanchez only once, Villanueva places

great weight on the medical examiner’s conclusion that Sanchez did not die from being hit and

kicked. However, this argument overlooks that a rational jury could conclude the beating resulted

in Sanchez being rendered unconscious, a necessary predicate for his death as a result of him being

shoved into and wedged under the backseat in a manner the medical examiner described as

“impossible for him to get under there on his own accord,” causing his death by positional

asphyxiation.

Significantly, Villanueva (1) did not attempt to stop the attack on Sanchez—rather, some

evidence indicated he would have further participated in the attack were he not physically

restrained; (2) did not attempt to call 911; and (3) did not seek aid for Sanchez after the beating.

See Curtis v. State, 573 S.W.2d 219, 222 (Tex. Crim. App. 1978) (“The fact that an intervening

bystander stopped appellant’s participation in the fight did not negate appellant’s intent to aid in

the assault.”); Humaran v. State, 478 S.W.3d 887, 897 (Tex. App.—Houston [14th Dist.] 2015,

pet. ref’d) (“The jury could have reasonably concluded that by failing to report the murder when

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she had the chance to do so, appellant was actually attempting to conceal evidence of her guilt.”).

A rational jury could conclude from the totality of the circumstances and cumulative effect of the

evidence that Villanueva had both the intent to cause serious bodily injury to Sanchez and that he

promoted or assisted his co-defendants to hit and kick Sanchez. See Guevara, 152 S.W.3d at 49.

A rational jury could have also believed Villanueva (1) solicited the group to return to his

home to dispose of Sanchez’s body after Julie called Villanueva; (2) maintained a motive to

remove Sanchez’s body from his own yard; (3) directed Rivera-Vasquez’s disposal of Sanchez’s

body; and (4) directed Matthews where to pick up Rivera-Vasquez after Rivera-Vasquez disposed

of Sanchez’s body. 2 A rational jury could reasonably infer from the totality of these circumstances

and the cumulative effect of these facts that Villanueva intended to and did promote or assist in

the disposal of Sanchez’s body in a manner that resulted in his death. See Guevara, 152 S.W.3d at

49. The jury could have also inferred guilt from Villanueva’s abandonment of his home by the

time law enforcement sought him out days later. See Foster v. State, 779 S.W.2d 845, 849 (Tex.

Crim. App. 1989) (“Evidence of flight is admissible as a circumstance from which an inference of

guilt may be drawn.”).

Applying the appropriate standard of review, we hold a rational jury could reasonably infer

from Villanueva’s acts, words, and conduct, and all of the surrounding circumstances taken

together, that (1) Villanueva intended to cause serious injury to Sanchez by hitting him;

(2) shoving a severely beaten and unconscious person under the back floorboard of the car

2 Accomplice witness testimony was corroborated by the testimony of Menchaca, the information Julie provided to law enforcement, and Villanueva’s own statement to police. See Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) (“Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”); see also Jackson v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974) (“It is well established that appellant’s admission or confession, under most circumstances, will be sufficient to corroborate the accomplice witness.”).

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constituted an act clearly dangerous to human life that caused Sanchez’s death; and (3) Villanueva

was a party to that act by soliciting and directing it. We overrule Villanueva’s first issue.

JURY CHARGE

In his second issue, Villanueva asserts the trial court erroneously charged the jury with

“hitting and kicking” language as alleged in the indictment but contrary to the evidence at trial.

Our review begins with a determination of whether error exists in the charge and, if so,

whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738,

743 (Tex. Crim. App. 2005). The degree of harm necessary for reversal depends on whether the

defendant preserved the error by objection. Id. Where, as here, the defendant did not object to the

charge, we will not reverse for jury charge error unless the record shows “egregious harm” to the

defendant. Id.

“Egregious harm” results from error affecting the very basis of the case, depriving the

defendant of a valuable right, or vitally affecting a defensive theory. Olivas v. State, 202 S.W.3d

137, 144 (Tex. Crim. App. 2006). “Reversal is not required unless the error is so egregious that

the defendant was denied a fair and impartial trial.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984). To assess whether charge error is egregiously harmful, we consider (1) the

entire jury charge; (2) the state of the evidence, including contested issues; (3) arguments of

counsel; and (4) any other relevant information contained in the record as a whole. Gelinas v. State,

398 S.W.3d 703, 705 (Tex. Crim. App. 2013).

A trial court must deliver to the jury a written charge distinctly setting forth the law

applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The jury charge must apply the law to

the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004). The

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trial court’s jury instructions should only include alternative theories of how a defendant

committed an offense alleged in the indictment if the evidence presented at trial supports those

theories. Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012). Neither the manner nor

the means of committing the offense needs to be unanimously agreed upon by the jury. Ngo, 175

S.W.3d at 746 & n.27. The jury need only unanimously agree that the defendant caused the

victim’s death. Id.

Villanueva argues that the evidence showed Sanchez died from a lack of oxygen, not from

hitting and kicking. According to Villanueva, because the medical examiner never claimed that

Sanchez choked on his own blood or was unable to breathe due to blood obstructing the flow of

air to his brain, the inclusion of “hitting and kicking” language in the charge—although alleged in

the indictment—should not have been submitted to the jury as a cause of death. Villanueva asserts

the “hitting and kicking” language should have been omitted from the charge or, at best, submitted

solely as an extraneous offense and limited to the issue of the actors’ knowledge or intent when

placing Sanchez’s body in the car.

The State submits the trial court correctly applied the law and facts to the case. The State

asserts it is well-established that a charge is valid so long as any one of the manner and means

alleged caused the death, or the manner and means alleged “cooperated together” to cause the

death. See Zanghetti v. State, 618 S.W.2d 383, 387 (Tex. Crim. App. 1981); Medina v. State, 49

S.W. 380, 380–81 (Tex. Crim. App. 1899). According to the State, what controls is whether an

alleged manner and means could have “played a role in the death.” Smith v. State, No. 05-18-

00491-CR, 2019 WL 1615353, at *12 (Tex. App.—Dallas Apr. 15, 2019, pet. ref’d) (mem. op.,

not designated for publication); Rocha v. State, No. 05-18-00161-CR, 2019 WL 1467964, at *8–9

(Tex. App.—Dallas Apr. 3, 2019, pet. ref’d) (mem. op., not designated for publication). The State

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accordingly argues the evidence at trial showed Sanchez was hit, kicked, and placed in a car in a

manner that resulted in positional asphyxiation, and “but for” Sanchez being rendered unconscious

from the hitting and kicking, the actors would not have been able to put him in the back of the car

in the manner that caused his death.

Based on record evidence, we agree with the State that a reasonable jury could find hitting

and kicking played a role in Sanchez’s death. A reasonable jury could have believed that but for

Sanchez having been rendered unconscious by being hit and kicked, he could not have been placed

in the car in a way that resulted in his death by positional asphyxiation. We accordingly find no

error by the trial court’s inclusion of “hitting and kicking” language in the charge. Having found

no error in the charge, we need not address harm. See Ngo, 175 S.W.3d at 738; TEX. R. APP. P.

47.1. We overrule Villanueva’s second issue.

CONCLUSION

Having overruled Villanueva’s issues, the judgment of the trial court is affirmed.

Lori I. Valenzuela, Justice

DO NOT PUBLISH

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