Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-20-00059-CR
Marcelino ESTRADA, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 17-09-0519-CRA Honorable Russell Wilson, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
Delivered and Filed: June 30, 2021
AFFIRMED
A jury convicted Marcelino Estrada of manslaughter. In a single issue on appeal, Estrada
asserts that the trial court erred in denying his motion to quash the indictment because the
indictment insufficiently describes with reasonable certainty the acts or circumstances
demonstrating that Estrada committed his conduct recklessly. We affirm.
BACKGROUND
Estrada’s conviction stems from events on the night of October 29, 2016. After a work
party, decedent Stephen Willey—along with his wife and colleagues—continued celebrating at 04-20-00059-CR
Texas South Dance Hall, a bar located near their hotel. Texas South Dance Hall was owned by
Gary Hernandez. Hernandez, his brother, and his nephew were playing pool at one of two pool
tables. A second group, including Willey, were playing at the other pool table. Shortly before
midnight, an argument arose over the use of the pool tables.
When the argument began, Francisco “Frank” Aranda, Estrada, and Estrada’s brother—
Ricardo Contreras—were drinking at the bar. The three previously worked for Hernandez as
informal bouncers but were only customers that night. As the argument continued, Hernandez,
Aranda, and Contreras confronted Willey. It is unclear who initiated the physical confrontation,
but Estrada later admitted to law enforcement that as soon as shoving started, either Contreras,
Estrada, or all three of the ex-bouncers tackled Willey to the ground. During the ensuing struggle,
Willey was pinned face-down. Multiple witnesses testified that Estrada initially placed Willey in
a chokehold. Estrada restrained Willey using his bodyweight on Willey’s head and back, placing
one of his arms underneath Willey and his other arm either in a bearhug or on Willey’s back. While
pinning Willey, Estrada either faced opposite or perpendicular to Willey. Meanwhile, Contreras
pinned Willey’s mid area, and Aranda held Willey’s feet for a brief time before getting up to
control the crowd. One or two minutes after Willey was pinned to the ground, Hernandez exited
the bar and called 911. During the next several minutes, multiple witnesses told Estrada that Willey
could not breathe. One witness saw Willey “tap out” by tapping his hand to indicate he was giving
up the fight.
Officer Trevino (Trevino) arrived at the scene approximately five minutes after dispatch
received a call and discovered Willey non-responsive. Trevino described Willey as bleeding from
his right ear, both nostrils, and mouth. Willey’s face was colored an off shade of purple and blue
with ruptured vessels. Concerned Willey was choked, Trevino immediately began administering
chest compressions and called for EMS support. EMS assumed Willey’s care after arriving. Willey
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was transported to the hospital where approximately eighteen hours later he died from the injuries
he sustained.
Willey’s autopsy showed that Estrada applied sustained pressure to Willey’s neck,
evidenced by multiple groups of hemorrhages and bruising on his neck, which typically indicate
strangulation or neck compression. Willey’s autopsy also indicated that he had been deprived of
oxygen for at least three-and-a-half minutes—the time necessary for brain death—and that he
would have been unable to struggle within the first fifteen to thirty seconds of oxygen deprivation.
On September 15, 2017, Estrada was indicted for manslaughter; the indictment stated:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jury, duly selected, organized, sworn and impaneled as such for the County of Atascosa, State of Texas, at the July, A.D., 2017, Term of the 81st/218th Judicial District Court for said County, upon their oaths present in and to said Court, that on or about the 30th day of October 2016, and before the presentment of this indictment, in the County and State aforesaid Marcelino Estrada (hereinafter styled Defendant), did then and there:
then and there [sic] recklessly cause the death of an individual, namely, Stephen Willey, by restraining Stephen Willey and depriving him of oxygen.
AGAINST THE PEACE AND DIGNITY OF THE STATE.
On January 11, 2019, Estrada filed a motion to quash the indictment. Voir dire began on
September 23, 2019. After voir dire, the trial court denied Estrada’s motion to quash. On October
1, 2019, after a six-day trial, the jury convicted Estrada of manslaughter. The trial court assessed
Estrada’s punishment at fifteen years confinement. This appeal followed.
STANDARD OF REVIEW
We review a trial court’s decision on a motion to quash an indictment de novo because the
sufficiency of a charging instrument is a question of law. State v. Rosseau, 396 S.W.3d 550, 555
-3- 04-20-00059-CR
n.6 (Tex. Crim. App. 2013) (citing Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010));
State v. Castorena, 486 S.W.3d 630, 632 (Tex. App.—San Antonio 2016, no pet.).
In all criminal prosecutions, the defendant has the right to demand the nature of the cause
of action against him, and to have a copy thereof. TEX. CONST. art. 1, § 10; State v. Mays, 967
S.W.2d 404, 405 (Tex. Crim. App. 1998). While an indictment does not need to allege facts that
are merely evidentiary in nature, where the State charges the accused acted recklessly in the
commission of an offense, as here, the indictment must also “allege, with reasonable certainty, the
act or acts relied upon to constitute recklessness.” Smith, 309 S.W.3d at 14; TEX. CODE CRIM.
PROC. art. 21.15. A person commits the offense of manslaughter if he recklessly causes the death
of an individual. TEX. PENAL CODE § 19.04.
An indictment is sufficient so long as (1) it confers jurisdiction on the trial court to
pronounce judgment and (2) an ordinary person can understand what it means and what the offense
is. TEX. CODE CRIM. PROC. art. 21.11. An indictment must be specific enough for the defendant to
prepare a defense, and the sufficiency of the indictment will be tested on its own terms—“in a
vacuum, so to speak.” Adams v. State, 707 S.W.2d 900, 901 (Tex. Crim. App. 1986). We engage
in a two-step inquiry. See Adams, 707 S.W.2d at 903.
We first assess whether the indictment failed to convey some requisite item of “notice.” Id.
When recklessness is an element of the offense, the indictment must “allege the circumstances of
the act which indicate that the defendant acted in a reckless manner.” State v. Rodriguez, 339
S.W.3d 680, 685 (Tex. Crim. App. 2011) (emphasis in original). Alternatively, “[a]n alleged
inherently reckless act satisfies the requirements of article 21.15.” Tata v. State, 446 S.W.3d 456,
463 (Tex.
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Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-20-00059-CR
Marcelino ESTRADA, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 17-09-0519-CRA Honorable Russell Wilson, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
Delivered and Filed: June 30, 2021
AFFIRMED
A jury convicted Marcelino Estrada of manslaughter. In a single issue on appeal, Estrada
asserts that the trial court erred in denying his motion to quash the indictment because the
indictment insufficiently describes with reasonable certainty the acts or circumstances
demonstrating that Estrada committed his conduct recklessly. We affirm.
BACKGROUND
Estrada’s conviction stems from events on the night of October 29, 2016. After a work
party, decedent Stephen Willey—along with his wife and colleagues—continued celebrating at 04-20-00059-CR
Texas South Dance Hall, a bar located near their hotel. Texas South Dance Hall was owned by
Gary Hernandez. Hernandez, his brother, and his nephew were playing pool at one of two pool
tables. A second group, including Willey, were playing at the other pool table. Shortly before
midnight, an argument arose over the use of the pool tables.
When the argument began, Francisco “Frank” Aranda, Estrada, and Estrada’s brother—
Ricardo Contreras—were drinking at the bar. The three previously worked for Hernandez as
informal bouncers but were only customers that night. As the argument continued, Hernandez,
Aranda, and Contreras confronted Willey. It is unclear who initiated the physical confrontation,
but Estrada later admitted to law enforcement that as soon as shoving started, either Contreras,
Estrada, or all three of the ex-bouncers tackled Willey to the ground. During the ensuing struggle,
Willey was pinned face-down. Multiple witnesses testified that Estrada initially placed Willey in
a chokehold. Estrada restrained Willey using his bodyweight on Willey’s head and back, placing
one of his arms underneath Willey and his other arm either in a bearhug or on Willey’s back. While
pinning Willey, Estrada either faced opposite or perpendicular to Willey. Meanwhile, Contreras
pinned Willey’s mid area, and Aranda held Willey’s feet for a brief time before getting up to
control the crowd. One or two minutes after Willey was pinned to the ground, Hernandez exited
the bar and called 911. During the next several minutes, multiple witnesses told Estrada that Willey
could not breathe. One witness saw Willey “tap out” by tapping his hand to indicate he was giving
up the fight.
Officer Trevino (Trevino) arrived at the scene approximately five minutes after dispatch
received a call and discovered Willey non-responsive. Trevino described Willey as bleeding from
his right ear, both nostrils, and mouth. Willey’s face was colored an off shade of purple and blue
with ruptured vessels. Concerned Willey was choked, Trevino immediately began administering
chest compressions and called for EMS support. EMS assumed Willey’s care after arriving. Willey
-2- 04-20-00059-CR
was transported to the hospital where approximately eighteen hours later he died from the injuries
he sustained.
Willey’s autopsy showed that Estrada applied sustained pressure to Willey’s neck,
evidenced by multiple groups of hemorrhages and bruising on his neck, which typically indicate
strangulation or neck compression. Willey’s autopsy also indicated that he had been deprived of
oxygen for at least three-and-a-half minutes—the time necessary for brain death—and that he
would have been unable to struggle within the first fifteen to thirty seconds of oxygen deprivation.
On September 15, 2017, Estrada was indicted for manslaughter; the indictment stated:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jury, duly selected, organized, sworn and impaneled as such for the County of Atascosa, State of Texas, at the July, A.D., 2017, Term of the 81st/218th Judicial District Court for said County, upon their oaths present in and to said Court, that on or about the 30th day of October 2016, and before the presentment of this indictment, in the County and State aforesaid Marcelino Estrada (hereinafter styled Defendant), did then and there:
then and there [sic] recklessly cause the death of an individual, namely, Stephen Willey, by restraining Stephen Willey and depriving him of oxygen.
AGAINST THE PEACE AND DIGNITY OF THE STATE.
On January 11, 2019, Estrada filed a motion to quash the indictment. Voir dire began on
September 23, 2019. After voir dire, the trial court denied Estrada’s motion to quash. On October
1, 2019, after a six-day trial, the jury convicted Estrada of manslaughter. The trial court assessed
Estrada’s punishment at fifteen years confinement. This appeal followed.
STANDARD OF REVIEW
We review a trial court’s decision on a motion to quash an indictment de novo because the
sufficiency of a charging instrument is a question of law. State v. Rosseau, 396 S.W.3d 550, 555
-3- 04-20-00059-CR
n.6 (Tex. Crim. App. 2013) (citing Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010));
State v. Castorena, 486 S.W.3d 630, 632 (Tex. App.—San Antonio 2016, no pet.).
In all criminal prosecutions, the defendant has the right to demand the nature of the cause
of action against him, and to have a copy thereof. TEX. CONST. art. 1, § 10; State v. Mays, 967
S.W.2d 404, 405 (Tex. Crim. App. 1998). While an indictment does not need to allege facts that
are merely evidentiary in nature, where the State charges the accused acted recklessly in the
commission of an offense, as here, the indictment must also “allege, with reasonable certainty, the
act or acts relied upon to constitute recklessness.” Smith, 309 S.W.3d at 14; TEX. CODE CRIM.
PROC. art. 21.15. A person commits the offense of manslaughter if he recklessly causes the death
of an individual. TEX. PENAL CODE § 19.04.
An indictment is sufficient so long as (1) it confers jurisdiction on the trial court to
pronounce judgment and (2) an ordinary person can understand what it means and what the offense
is. TEX. CODE CRIM. PROC. art. 21.11. An indictment must be specific enough for the defendant to
prepare a defense, and the sufficiency of the indictment will be tested on its own terms—“in a
vacuum, so to speak.” Adams v. State, 707 S.W.2d 900, 901 (Tex. Crim. App. 1986). We engage
in a two-step inquiry. See Adams, 707 S.W.2d at 903.
We first assess whether the indictment failed to convey some requisite item of “notice.” Id.
When recklessness is an element of the offense, the indictment must “allege the circumstances of
the act which indicate that the defendant acted in a reckless manner.” State v. Rodriguez, 339
S.W.3d 680, 685 (Tex. Crim. App. 2011) (emphasis in original). Alternatively, “[a]n alleged
inherently reckless act satisfies the requirements of article 21.15.” Tata v. State, 446 S.W.3d 456,
463 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Smith, 309 S.W.3d at 16). If the
indictment provides sufficient notice, our inquiry ends. Adams, 707 S.W.2d at 903.
-4- 04-20-00059-CR
If the indictment does not provide sufficient notice, we next decide whether, in the context
of the case, the failure impacted the defendant’s ability to prepare a defense, and, if so, how great
an impact. Id. That is, we review the record for prejudice to appellant’s substantial rights. Id.
ANALYSIS
Our sufficiency review is limited to the face of the indictment. Id. at 901. Here, the
indictment charged that Estrada “recklessly cause[d] the death of an individual, namely, Stephen
Willey, by restraining Stephen Willey and depriving him of oxygen.” This language satisfies the
State’s burden to allege both an act and the circumstances indicating recklessness: Estrada’s act is
restraining Willey; the circumstances of that act indicating recklessness are that Estrada undertook
such restraint in a manner that deprived Willey of oxygen, resulting in his death. See Rodriguez,
339 S.W.3d at 685. An ordinary person would understand the indictment to mean that, by depriving
Willey of oxygen, Estrada’s restraint recklessly caused Willey’s death. See TEX. CODE CRIM.
PROC. art. 21.11. The State was not required to allege additional evidentiary facts, such as the
specific method of restraint or the duration of the restraint. See Smith, 309 S.W.3d at 14.
Moreover, restraining a person in a way that deprives him of oxygen is an inherently
reckless act. See Tata, 446 S.W.3d at 463. We disagree with Estrada’s assertion that “every day
scenarios” demonstrate that restraining a person in a way that deprives him of oxygen is not
inherently reckless. Hindering or restricting a person’s ability to breathe freely is not the same as
depriving a person of oxygen; deprivation entails a complete withholding or removal. 1 Because
1 See, e.g., Deprivation, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/deprivation (“1: the state of being kept from possessing, enjoying, or using something : the state of being deprived : PRIVATION; 2: an act or instance of withholding or taking something away from someone or something : an act or instance of depriving : LOSS . . . the hazards of oxygen deprivation”) (emphasis in original) (last visited June 9, 2021); Deprive, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/deprive (“1: to take something away from . . . the risk of injury when the brain is deprived of oxygen”) (emphasis in original) (last visited June 9, 2021); Deprivation, Black’s Law Dictionary (11th ed. 2019) (“1. An act of taking away . 2. A withholding of something that one needs, esp. in order to be healthy . 3. The quality, state, or condition of being without something that is necessary ”).
-5- 04-20-00059-CR
restraining a person in a way that deprives him of oxygen is inherently reckless, the indictment
facially satisfies the requirements of article 21.15.
Having found the indictment facially sufficient, our inquiry ends, and we need not address
prejudice. See Adams, 707 S.W.2d at 903. We overrule Estrada’s sole issue. The judgment is
affirmed.
Lori I. Valenzuela, Justice
PUBLISH
-6-