ACCEPTED 06-14-00088-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/22/2015 11:31:28 AM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS SAMUEL DELEON GARZA, § 1/23/2015 9:35:00 AM APPELLANT § No. 06-14-00088-CR DEBBIE AUTREY Clerk § No. 06-14-00089-CR v. § No. 06-14-00090-CR § No. 06-14-00091-CR THE STATE OF TEXAS, § No. 06-14-00092-CR APPELLEE § No. 06-14-00093-CR
STATE'S REPLY BRIEF
FROM THE 196TH DISTRICT COURT HUNT COUNTY, TEXAS TRIAL CAUSE NUMBERS 28,996, 28,997, 28,998, 28,999, 29,016, 29,017 THE HONORABLE STEPHEN R. TITTLE, JUDGE PRESIDING
NOBLE DAN WALKER, JR. District Attorney Hunt County, Texas
G CALVIN GROGAN V Assistant District Attorney P. 0. Box 441 4th Floor Hunt County Comihouse Greenville, TX 7 5403 (903) 408-4180 FAX (903) 408-4296 State Bar No. 24050695 TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... 2 TABLE OF AUTHORITIES .................................................................................... 3 STATEMENT OF CASE ..................................................................... 5 ISSUES PRESENTED ....................................................................... 6 SUMMARY OF THE STATE'S ARGUMENTS ................................................... 7 STATEMENT OF FACTS ...................................................................................... 8 STATE'S RESPONSE TO POINT OF ERROR .................................................. 13 STANDARD OF REVIEW FOR LEGAL INSUFFICIENCY .............................................................................. 13
EVIDENCE WAS LEGALLY SUFFICIENT TO SHOW APPELLANT'S DATING RELATIONSHIP WITH VICTIM ......................................................... 14
MARIA ULLOA'S BOYFRIEND ................................................................... 14
EVIDENCE WAS LEGALLY SUFFICIENT TO SHOW APPELLANT ENTERED VICTIM'S HOME AND COMMITTED ASSAULT ......................... 17
MARIA ULLOA'S TESTIMONY AND GPD PHOTOS OF MARIA ............. 17
OFFICER LEIGH DIXON'S TESTIMONY .................................................... 17
EVIDENCE WAS LEGALLY SUFFICIENT TO SHOW APPELLANT COMMITTED RETALIATION ............................................................................. 19
PRAYER ................................................................................................................. 23 CERTIFICATE OF SERVICE ............................................................................... 24
2 INDEX OF AUTHORITIES
Federal Cases Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) ............................................... 13
Texas Cases Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................... 13 Harris v. State, 164 S.W.3d 775 (Tex. App.- Houston [14111 Dist.] 2005, pet. refd) ............................................................................................................... l7 Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ................................ 13 Issasi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ............................. 13 Moore v. State, 54 S.W.3d 529, 539 (Tex. App.- Fort Worth 2001, pet. refd) .. 18 Moore v. State, 143 S.W.3d 305,310 (Tex. App.- Waco 2004, pet. ref d) ........ 19 Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App. 1993) .......................... 19
Texas Statutes TEXAS PENAL CODE SECTION 1.07(a)(8) (Ve1non 2014) ........................................ 18 TEXAS PENAL CODE SECTION 6.04(a) (Vernon 2014) ............................................ 20 TEXAS PENAL CODE Section 22.0l(a)(l) (Vernon 2014) ....................................... 13 TEXAS PENAL CODE Section 22.0l(b)(2) (Vernon 2014) ....................................... 14 TEXASFAM. CODEANN. Section 71.002l(b)-(c)(Vernon2014) ........................... 14 TEXAS PENAL CODE Section 30.0l(a)(3) (Vernon 2014) ....................................... 17 TEXAS PENAL CODE SECTION 36.06(a)(l) (Vernon 2014) ...................................... 19 TEXAS PENAL CODE Section 36.06(b)(2) (Vernon 2014) ....................................... 19
3 IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA
SAMUEL DELEON GARZA, § APPELLANT § No. 06-14-00088-CR § No. 06-14-00089-CR v. § No. 06-14-00090-CR § No. 06-14-00091-CR THE STATE OF TEXAS, § No. 06-14-00092-CR APPELLEE § No. 06-14-00093-CR
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the State of Texas, Appellee, in this appeal from Cause Nos. 28,996, 28,997, 28,998, 28,999, 29,016 and 29,017 in the 196th District Court in and for Hunt County, Texas, Honorable Stephen R. Tittle, Presiding, now before the Sixth District Court of Appeals, and respectfully submits this its brief to the Sixth District Court of Appeals in support of the judgment of conviction and sentence in the court below.
4 Statement of Case
On May 31, 2013, Appellant was indicted for Assault Family Violence with
a Prior Conviction in Cause Numbers 28,996, 28,997, 28,999 and 29,016;
Retaliation in Cause Number 29,017; and Burglary of Habitation in Cause Number
28,998. The alleged crimes occurred from February 2, 2013, through April 7,
2013. On July 31, 2013, Appellant was arraigned and entered pleas of not guilty.
CR Vol.l.p.6. 1 On February 12,2014, the State filed its Motion to Consolidate all
cases which was granted by the Court on April22, 2014. CR Vol.l.pp.65, 71.
Appellant stipulated to his previous Assault Family Violence Conviction on April
28, 2014, which was offered into evidence as Joint Exhibit No. 1. CR Vol.l.p.73,
RR Vol.4.p.35. On May 5, 2014, the Appellant was found guilty by a jury in all
cases. CR V ol.1.p.9. At punishment, the Appellant pled true to two enhancement
paragraphs alleged in the aforementioned indictments. CR Vol.1.p.6. The jury
assessed punishment at forty (40) years in the Texas Department of Con·ections in
Cause Number 28,996. CR Vol.1.p.58? The jury assessed punishment at forty-five
(45) years in the Texas Department of Corrections in Cause Number 29, 016. CR
Vol.1.p.87. The jury assessed punishment at fifty-two (52) years in the Texas
1 To consolidate, all references to CR Vol.l. refer to Cause No. 29,016 unless otherwise indicated in a separate footnote. 2 Cause No. 28,996. 5 Department of Corrections in Cause Number 28,997. CR Vol.1.p.93. 3 The jury
assessed punishment at seventy-three (73) years in the Texas Department of
Corrections in Cause Number 28,998. CR Vol.l.p.90. 4 The jury assessed
punishment at eighty (80) years in the Texas Department of Corrections in Cause
Number 29, 017. The jury assessed punishment at eighty-five (85) years in the
Texas Department of Corrections in Cause Number 28,999. CR Vol.l.p.88. 5 The
Court ran all sentences concurrently. The Court pronounced sentence on May 6,
2014, and certified the Appellant's right to appeal. CR Vol.l.p.92. Appellant gave
written notice of appeal in all cases on May 8, 2014. CR Vol.l.p.93. Appellant
filed a Motion for New Trial in all cases on June 2, 2014. CR Vol.l.p.95.
ISSUES PRESENTED
Issue 1. Was the Evidence Legally Sufficient to Prove the Assault Family
Violence Element of "Dating Relationship" Beyond a Reasonable Doubt?
Issue 2. Was the Evidence Legally Sufficient to Prove the Burglary of a
Habitation With Intent to Commit Assault Element of "Injury" Beyond a
Reasonable Doubt?
3 Cause No. 28,997. 4 Cause No. 28,998. 5 Cause No. 28,999. 6 Issue 3. Was the Evidence Legally Sufficient to Prove all of the Elements of
Retaliation Beyond a Reasonable Doubt?
S~YOFTHEARGUMENT
1. Viewing the evidence in a light favorable to the State in Cause Nos. 28,996,
28,997, 28,999 and 29,016, a rational trier of fact could have found Ms. Ulloa
was in a dating relationship with Appellant on February 2 and 4, 2013, proven
beyond a reasonable doubt. Ms. Ulloa's testimony, her son Nicholas'
testimony, and Defense Exhibit No. 1 proved there was a romantic and intimate
relationship, so intense that it triggered Appellant's violence.
2. Viewing the evidence in a light favorable to the State in Cause No. 28,998, a
rational trier of fact could have found Ms. Ulloa was injured during the
Burglary ofHabitation on or about February 5, 2013, proven beyond a
reasonable doubt. Photos of Ms. Ulloa, Ms. Ulloa's testimony, and Nicholas'
911 calls proved Appellant's violence hurt her physically.
3. Viewing the evidence in a light favorable to the State in Cause No. 29,017, a
rational trier of fact could have found all the elements for Retaliation proven
beyond a reasonable doubt. Based on the intense relationship between
Appellant and Ms. Ulloa, the escalating violence that occurred after Ms. Ulloa
was interviewed by law enforcement on February 4, 2013, leads to the
inescapable conclusion that Appellant thought Ms. Ulloa was a "snitch."
7 Statement of Facts
Maria Ulloa had lived at 31 03 Cornelia Street for ten years, along with her three
boys for most of that time. RR Vol.4.p.93. In February 2013, only Ms. Ulloa and
her nine-year old son Nicholas lived in the home. RR Vol.4.p.93. Nicholas' father
had been absent for the past ten years, and the other two boys father lived in
Celeste, Texas. RR Vol.4.pp.95-96. Ms. Ulloa met the Appellant in December
2012. RR Vol.4.pp.94, 151. Within two weeks of meeting, they were in a
relationship. RR Vol.4.p.95. Since Ms. Ulloa's profession was owning rent houses
that allowed her to work from home, and the Appellant was unemployed and
without transportation, they spent a lot of time just hanging out in her home. RR
Vol.4.pp.97, 167-68. If Appellant needed to run errands, Ms. Ulloa lent hiln her
white 2006 GMC Sierra truck. RR Vol.4.p.98. Appellant left his clothes at her
house, and sometimes stayed several nights in a row. RR Vol.4.pp.97, 156. Ms.
Ulloa's relationship with the Appellant became abusive shortly thereafter, both
emotionally and physically. RR Vol.4.p.99. Ms. Ulloa let the abuse go unrepmied
for about two months. RR Vol.4.p.100.
Ms. Ulloa and her son Nicholas placed 911 calls on the morning ofFeb1uary
2, 2013 and evening ofFebruary 4, 2013. RR Vol.4.p.71; State's Exhibit Nos. 2-3.
In Ms. Ulloa's 911 call placed at 1:51 a.m. on February 2, 2013, she described that
Appellant came into her residence and assaulted her. RR Vol.4.pp.38, 42, 105.
8 After entering the living room and accusing Ms. Ulloa of cheating on him,
Appellant hit her in the mouth with his fists. RR Vol.4.pp.1 04-05. This was the
first incident of physical abuse between the two. RR Vol.4.p.105. Appellant left
the house before police could arrive. RR Vol.4.p.105. Greenville Police
Department ("GPD") officer Brandon West documented the blood on Ms. Ulloa's
mouth by taking photos of Ms. Ulloa. RR Vol.4.p.106, Vol.5.pp.51, 57; State
Exhibit Nos. 46-48. Although Ms. Ulloa and Appellant communicated through
phone calls and text messages the next day, she did not see him again until
Feb1uary 4, 2013. RR Vol.4.p.108.
On the afternoon ofFebruary 4, 2013, Ms. Ulloa was requested for an
interview at GPD concerning Appellant's use of her vehicle. RR Vol.4.p.l11.
After being interviewed for an hour, GPD Detective Mike Johnston dropped Ms.
Ulloa off at her home. RR Vol.4.p.112, Vol.5 .p. 74. Within ten minutes, Appellant
arrived at Ms. Ulloa's house and began accusing her of"snitching" on him. RR
Vol.4.pp.112-13. Prior to Appellant's arrival, Ms. Ulloa had locked the front door
and began taking a nap. RR Vol.4.p.115. Appellant began physically abusing Ms.
Ulloa 'in her bedroom. RR Vol.4.p.113. Appellant kicked Ms. Ulloa's leg and hit
her face with his fists. RR Vol.4.p.115, Vol.5.p.9; State Exhibit Nos. 50-53.
There were three 911 calls placed by Nicholas on February 4, 2013. RR
Vol.4.pp.45, 48, 74. Nicholas saw his mom on the ground and the Appellant
9 hitting her from above with his fists. RR Vol.4.p.75. Nicholas heard his mom
crying while this was happening. RR Vol.4.p.75. Nicholas ran to the neighbor's
house to make the 911 calls because there was no house phone available. RR
Vol.4.pp.72-74. Nicholas waited at the neighbor's house until the police an·ived.
RR Vol.4.p.73. Appellant fled the scene before police arrived around 6 p.1n. RR
Vol.4.p.119, Vol.5.p.8. After returning home, Nicholas saw bruises and blood on
his mom's body. RR Vol.4.p.73. Ms. Ulloa provided a written statement to GPD.
RR Vol.4.p.120. GPD Officer Leigh Dixon took photos of the damaged front door.
RR Vol.5.p.11; State Exhibit Nos. 41-43.
Nicholas and his mom, with the guidance from Officer Dixon, re-locked the
front door after the first assault on February 4th had occurred. RR Vol.4.p.78, 122.
Appellant came back to Ms. Ulloa's house just a few hours later with a mutual
friend named Cody. RR Vol.4.pp.123-24, RR Vol.5.p.12. After telling Cody from
the fi·ont door that she did not want to speak to the Appellant, Appellant came out
of nowhere and shoved Ms. Ulloa into the house. RR Vol.4.p.125. Appellant
started hitting her face with his fists. RR Vol.4.p.126. Nicholas saw the Appellant
push his mom against the front door causing her to hit the counter. RR Vol.4.p.76.
Ms. Ulloa's hair got yanked and she was pushed to the ground by the Appellant.
RR Vo1.4.p.126. After Nicholas called 911 again, Officer Dixon arrived and took
more photos ofMs. Ulloa's body and another written statement. RR Vol.4.p.128,
10 Vo1.5.p.l3; State Exhibit Nos. 54-56. Again, Appellant fled the scene before
police arrived. RR Vol.5.p.13.
Appellant came back to Ms. Ulloa's home around 2:30a.m. the morning of
February 5th. RR Vol.5.p.42. GPD Officers had told Ms. Ulloa to place a chair
behind the front door while they searched for him. RR Vol.4.p.129, Vol.5.p.18.
Once Appellant got to Ms. Ulloa's bedroom, he hit her in the face with his fists.
RR Vol.4.pp.130-31. Nicholas saw the Appellant come back and hit his mom in
the head twice with his fists. RR Vol.4.p.79. After the 3rd 911 call was placed by
Nicholas, GPD returned to Ms. Ulloa's home and took more photos of Ms. Ulloa.
State Exhibit Nos. 57-61. Officer Dixon also took photos of the damaged front
door and the chair that had been placed behind it. RR Vol.5.p.23; State Exhibit
Nos. 44-45. Medical assistance was requested for Ms. Ulloa. RR Vol.5.p.20.
Appellant was never caught that evening or the next morning. RR Vol.5.pp.41.
On February 7, 2013, Ms. Ulloa received a phone call from Appellant
around 7 a.m. RR Vol.4.pp.134-35. There had been no contact between Ms. Ulloa
and Appellant the preceding two days. RR Vol.4.p.135. On that phone call,
Appellant was still accusing Ms. Ulloa ofbeing a snitch. RR Vol.4.p.136.
Appellant then came over to Ms. Ulloa's home to recover some of his personal
property, including speakers in her truck. RR Vol.4.p.137. Within five minutes of
Appellant recovering his speakers from the truck, Ms. Ulloa received a text
11 message that she knew was from the Appellant based upon the incoming phone
number and the message content- "go look at your truck." RR Vol.4.pp.13 7-38,
142-43; State Exhibit No. 66. Shortly thereafter GPD Officer Victor Petrea arrived
and took photos of Ms. Ulloa's damaged truck. RR Vol.5.p.65; State Exhibit Nos.
62-65. The back window of Ms. Ulloa's truck had been broken out. RR
Vol.4.p.139.
Besides a few phone calls, there was no contact between Appellant and Ms.
Ulloa until April 7, 2013, when the two met in an apartment complex parking lot.
RR Vo1.4.p.144. After approaching Ms. Ulloa's vehicle, Appellant opened her
door and struck her in the mouth with his fists. RR Vol.4.p.146. As he hit Ms.
Ulloa, Appellant said "he didn't want to see her with anyone else." RR
Vol.4.p.14 7. After this final incident, Ms. Ulloa drove to the Greenville Police
Department and more photos were taken of her. RR Vol.4.p.147; State Exhibit
Nos. 18-21.
12 ARGUMENT
I. Evidence Was Legally Sufficient to Prove Beyond a Reasonable Doubt
That Appellant And Maria Ulloa Were in a Dating Relationship at The
Time The Assaults Occurred
a. Standard of Review
In reviewing the evidence for legally sufficiency, the evidence is considered
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. Jackson v. Virginia, 443 U.S. 307,318-19 (1979); Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010). It is the responsibility of the fact finder to
fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences. Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010). This standard
applies to both direct and circumstantial evidence. Id. at 638. "Each fact need not
point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
A person commits assault if the person intentionally or knowingly causes
bodily injury to another. TEXAS PENAL CODE SEC. 22.01 (a)(l) (Vernon 2014). It
is a 3rd degree felony if at trial it is shown that the offense is committed against a
13 person whose relationship to or association with the defendant is described in
Section 71.0021(b). TEXAS PENAL CODE SEC. 22.01 (b)(2) (Vernon 2014).
"A dating relationship means a relationship between individuals who have or have had a continuing relationship of romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship." TEXAS FAM. CODE ANN. Sec. 71.0021 (b)-(c) (Vernon 2014).
b. Maria Ulloa's Boyfriend
In Cause No. 28,996, the State had to prove beyond a reasonable doubt that
on February 2, 2013, Appellant intentionally or knowingly caused bodily injury to
Maria Ulloa, with whom he had or had had a dating relationship, by pulling her
hair or by striking her head or face with his hand. CR V ol.1.p. 9. 6
In Cause No. 29,016, the State had to prove beyond a reasonable doubt that
on February 4, 2013, Appellant intentionally or knowingly caused bodily injury to
Maria Ulloa, with whom he had or had had a dating relationship, by kicking her leg
or by pushing her to or against the floor. CR Vol.1.p.1 0.
In Cause No. 28,997, the State had to prove beyond a reasonable doubt that
on February 4, 2013, Appellant intentionally or knowingly caused bodily injury to
6 Cause No. 28,996. 14 Maria Ulloa, with whom he had or had had a dating relationship, by pushing her to
or against a bed or by striking her chest or body. CR Vol.l.p.10. 7
In Cause No. 28,999, the State had to prove beyond a reasonable doubt that
on April 7, 2013, Appellant intentionally or lmowingly caused bodily injury to
Maria Ulloa, with whom he had or had had a dating relationship, by pulling her
hair or by striking her head or face with his hand. CR Vol.l.p.10. 8
In all of the aforementioned assaults, the only legal element contested by
Appellant is whether or not he was in a dating relationship, as defined by the Texas
Family Code, with Maria Ulloa at the time of these offenses. Appellant did not
contest that he injured her during these four assaults, two of which occuned after
he broke into her home. See Infra Discussion Part II Sec. A.
Ms. Ulloa testified she met the Appellant in December 2012. RR Vol.4.p.94.
Within two weeks of meeting, they were in a relationship. RR Vol.4.p.95. Ms.
Ulloa testified Appellant asked her out on dates shortly after they met. RR
Vol.4.p.151. Ms. Ulloa described their dates as going out and shopping for food.
RR Vol.4.p.152. Ms. Ulloa testified she dated Appellant exclusively during their
brief time together. RR Vol.4.p.153. Appellant left his clothes at her house, and
sometimes stayed several nights in a row in her bedroom. RR Vol.4.pp.97, 99.
Nicholas testified that Appellant lived in their home off and on, leaving his
7 Cause No. 28,997. 8 Cause No. 28,999. 15 personal belongings. RR Vol.4.p.77. Nicholas testified that when Appellant
stayed, he slept in his mom's bedroom. RR Vol.4.p.77. Ms. Ulloa even fell in love
with the Appellant and they talked about maniage. RR Vol.4.pp.154-55. Ms.
Ulloa signed the back of a picture given to the Appellant "I love you Sammy."
Defense Exhibit No. 1.
Ms. Ulloa's relationship with the Appellant then became abusive shortly
thereafter, both emotionally and physically. RR Vo1.4.pp.99, 153. However, Ms.
Ulloa testified that by February 2013, Appellant was still her boyfriend. RR
Vol.4.p.93.
While this may not have been the longest dating relationship, it had all the
characteristics of two people in a romantic or intimate relationship. Their signs of
intimacy: they shared a private bedroom, a kitchen, a truck, and their lives for a
few months. Their relationship had highs and lows. The low for Ms. Ulloa was
the abuse endured during their brief relationship. The high for Ms. Ulloa was that
she fell in love with him had thoughts about maniage. And Appellant's obsessive
behavior indicated he thought he was in a dating relationship with Ms. Ulloa. On
the night of his 1st assault, he accused her of cheating on him. RR Vol.4.p.1 04. On
the day of his final assault, Appellant said to Ms. Ulloa "he didn't want to see her
with anyone else" as he hit her in the mouth with his fists. RR Vol.4.p.147. Based
16 upon all the evidence, a rational juror could have found the dating relationship
element proven beyond a reasonable doubt.
II. Evidence Was Legally Sufficient to Prove Beyond a Reasonable Doubt that
Appellant Caused Maria Ulloa Pain When He Committed The Burglary
"A person commits an offense if without the effective consent of the
owner, enters a habitation and commits or attempts to commit an assault." TEXAS
PENAL CODE SEC. 30.0l(a)(3) (Vernon 2014).
b. Maria Ulloa's Testimony and GPD Photos
In Cause No. 28,998, the State had to prove beyond a reasonable doubt that
on or about February 5, 2013, Appellant entered Ms. Ulloa's habitation without her
consent and committed an assault against her. CR Vol.l.p.10. 9 Appellant's only
issue is whether he injured Ms. Ulloa during this incident. Although Appellant did
not challenge the injuries sustained by Ms. Ulloa during the 1st two assaults on
February 4, 2013, he challenged the final assault. Double jeopardy does not
preclude prosecution for burglary following a domestic violence incident. Harris v.
State, 164 S.W.3d 775 (Tex. App.- Houston [14th Dist.] 2005, pet. ref d).
9 Cause No. 28,998
17 Since the specific manner and mean of the assault was not alleged and is not
challenged on appeal, all the State has to prove was Ms. Ulloa got injured during
the burglary. See Moore v. State, 54 S.W.3d 529, 539 (Tex. App.- Fort Worth
2001, pet. ref d). Bodily injury means physical pain, illness, or any impainnent of
physical condition. TEX. PEN. CODE SEC. 1.07(a)(8) (Vernon 2014).
Appellant came back to Ms. Ulloa's home a 3rd time around 2:30a.m. on
February 5th. RR Vol.4.p.129, Vol.5.pp.26, 42. Ms. Ulloa described the entire
chain of events on February 4th occurred from 6 p.m. until3 a.m. RR Vol.4.p.164.
Appellant forced his way into Ms. Ulloa's home and bedroom on all three
occasions, even after she thought she had secured the front door each time. RR
V ol.4.p.165. GPD Officers had shown Nicholas and Ms. Ulloa a way to secure the
damaged front door using the door lmob after the 1st assault. RR Vol.4.p.122,
Vol.5 .p.19. And later that evening after the 2nd assault, GPD Officers had told Ms.
Ulloa to place a chair behind the front door while they continued to search for him.
RR Vol.4.p.129, Vol.5.p.18. Once Appellant got to Ms. Ulloa's bedroom, he hit
her in the face with his fists. RR Vol.4.pp.130-31. GPD also took photos of the
damaged front door and the chair that had been placed behind it. State Exhibit Nos.
44-45. The photos ofMs. Ulloa taken by GPD on the morning ofFebrumy 5th
speak for themselves. State Exhibit Nos. 57-61. All of the physical abuse on
Februmy 4th caused Ms. Ulloa pain. RR Vol.4.p.128. Officer Dixon testified Ms.
18 Ulloa was crying from apparent pain each time he responded to the 911 calls. RR
Vol.5.p.16. Ms. Ulloa requested medical assistance after the 3rd assault of the
evening. RR Vol.5.p.20.
A rational juror could have found the evidence proved beyond a reasonable
doubt that the Appellant entered Ms. Ulloa's home on or about Feb1uary 5, 2013,
without her consent and caused her bodily injury.
III. Evidence Was Legally Sufficient to Prove Beyond a Reasonable Doubt that
Appellant Committed Retaliation in Cause No. 29,017
"A person commits an offense if he intentionally or knowingly hanns or
threatens to harm another by an unlawful act, in retaliation for or on account of the
service or status of another as a witness, prospective witness, informant, a person
who has repmied, or who the actor knows intends to report the occurrence of a
crime." TEX. PEN. CODE. Sec. 36.06(a)(l) (Vernon 2014). Direct evidence of
intent is not required; retaliatory intent can be inferred from the acts, words, and
conduct ofthe accused. Moore v. State, 143 S.W.3d 305, 310 (Tex. App.- Waco
2004, pet. ref d). Whether one is a prospective witness must be judged from the
standpoint of the person accused of retaliation. Morrow v. State, 862 S.W.2d 612,
615 (Tex. Crim. App. 1993). Informant means a person who has communicated
19 information to the government in connection with any governmental function. TEX.
PEN. CODE Sec. 36.06(b)(2) (Vernon 2014).
b. Maria Ulloa's Testimony and the Text Messages
The State had to prove beyond a reasonable doubt that on or about
February 8, 2013, Appellant intentionally or knowingly harmed or tlu·eatened harm
to Maris Ulloa by committing three of the aforementioned assaults discussed supra
in Part I Section a, and/or a threat to harm Maria Ulloa on Feb1uary 8, 2013, by
breaking her vehicle window and texting "eye for an eye bitch," and the unlawful
acts were in retaliation for or on account of the service or status of her as an
informant or a person who had reported the occurrence of a crime. CR Vol.1.p.82 10
Appellant argues the State failed to prove it was his conscious objective to
commit the offense, the alleged crimes he was retaliating for happened in 2009 and
2011 before he met Ms. Ulloa, he did not commit the unlawful acts, and that even
if he did it was not proven that it was in retaliation.
"A person is criminally responsible if the result would not have occmTed
but for his conduct, operating either alone or concurrently with another cause,
unless the concurrent cause was clearly sufficient to produce the result and the
conduct of the actor clearly insufficient." TEX. PEN. CODE. Sec. 6.04(a) (Vernon
2014).
°Cause No. 29,017 1
20 On February 4, 2013, GPD Detective Mike Johnston interviewed Ms.
Ulloa concerning Appellant's use ofher 2006 truck. RR Vol.4.pp.101-02.
Appellant's arrival at Ms. Ulloa's home ten minutes later shows he lmew she was
interviewed by GPD. That interview with GPD Det. Johnston triggered a night of
physical abuse for Ms. Ulloa. See discussion supra Part I.Sec.a, Pati II. Sec. a.
There is nothing in the record to support Appellant's claim that Ms. Ulloa repmied
crimes in 2009 and 2011 against Appellant. Indeed, Det. Johnston testified Ms.
Ulloa did not even "snitch" out Appellant during her February 4th interview. RR
Vol.5.p.74.
On February 7, 2013, Ms. Ulloa received a phone call from Appellant
around 7 a.m. RR Vol.4.pp.134-35. On that phone call, Appellant was still
accusing Ms. Ulloa of being a snitch. RR Vol.4.p.136. Appellant then came over
to Ms. Ulloa's home to recover some of his personal property, including speakers
in her truck. RR Vol.4.p.137.
Within five minutes of Appellant recovering his speakers from the tluck,
Ms. Ulloa received a text message that she knew was from the Appellant based
upon the phone number being used and the message content- "go look at your
truck." RR Vol.4.pp.137-38, 142-43; State Exhibit No. 66. Shmily thereafter
Officer Petrea arrived and took photos of Ms. Ulloa's damaged truck. RR
21 Vol.5.p.65; State Exhibit Nos. 62-65. The back window of Ms. Ulloa's t1uclc had
been broken out. RR Vo1.4.p.139
These were not isolated assaults or criminal mischief. From the evening of
Feb1uary 4th through the morning of February ih, Appellant intentionally hmmed
Ms. Ulloa for being a "snitch." Appellant was angry about Ms. Ulloa's February
4th interview with GPD Det. Johnston the night he showed up uninvited and
assaulted her, and he was still angry with her a few days later when he damaged
her truck. Ms. Ulloa told GPD during their investigation that Appellant stated she
had incriminated him and that it could cause him issues in the criminal justice
system. RR Vol.5.p.76. A rational juror could have found all ofthe evidence
proved beyond a reasonable doubt Appellant's conscious, voluntary conduct
caused Ms. Ulloa physical harm and property damage in retaliation for her GPD
. . mterv1ew on Fb e ruary 4th .
22 PRAYER
Appellant's trial was without prejudicial error. The State prays that
Appellant's convictions and sentences be affirmed.
Respectfully submitted,
G CALVIN GROdAN V Assistant District Attorney P. 0. Box 441 4th Floor, Hunt County Courthouse Greenville, TX 75403 State Bar No. 24050695 (903) 408-4180 FAX (903) 408-4296
23 CERTIFICATE OF WORD COUNT In accordance with Texas Rules of Appellate Procedure 9.4(e) and (i), the undersigned attorney of record certifies that Appellee's brief contains a 14-point typeface and contains 4,614 words.1--\ r:; ~''l / '/ \-.J·· \h•>·•'q ·<.~.'~·· t~-··· . j ~~[j~liY!}"(,.c-=.••-' 1 /
' ff
G CALVIN GROGAN V Assistant District Attorney
CERTIFICATE OF SERVICE A true copy of the State's brief has been mailed via first-class mail to Jason Duff, Appellant's attorney of record, today, January 23, 2015, pursuant to Texas Rules of Appellate Procedure.