Alvarado v. State

JOSEPH ALVARADO, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-20-00070-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 10, 2021

On appeal from the 290th District Court of Bexar County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant Joseph Alvarado appeals his conviction of the lesser-included offense of felony murder.¹ See TEX. PENAL CODE ANN. § 19.02(b)(3). By three issues, appellantargues (1) the evidence was legally insufficient to support his conviction; (2) the trial court abused its discretion in denying his motion for mistrial; and (3) his trial attorney provided ineffective assistance of counsel.² We affirm.

I. BACKGROUND

Tarik Ross died as a result of multiple gunshot wounds on March 7, 2018, according to William McClain, the medical examiner for Bexar County.³ On March 15, appellant was arrested for capital murder in connection with Ross's death. Five others were also implicated: M.H.,⁴ James Berg, Drevonte "Dre" King, Raeshaun Woodard, and Jayshawn Johnson.⁵

A. The State's Case-in-Chief

1. Erickell Willrich

At trial, Ross's girlfriend of seven years, Erickell Willrich, testified that Ross received a phone call around 2 p.m. on March 6, 2018, from an individual she had never met named "Dre." Willrich testified she had been looking to sell her car, and "Dre told [Ross] that he had a potential car buyer." Ross and Willrich drove to the address provided by Dre after picking up their two-year-old son from daycare around 4 p.m.

At the location, Willrich noticed a juvenile, later identified as M.H.,⁶ standing outside of a white Cadillac with tinted windows. M.H. entered Willrich's vehicle through the back passenger side uninvited and immediately started "digging through [her] son's diaper bag." When Willrich confronted him, M.H. responded, "My bad," and moved his hand into his jacket, retrieving a gun. According to Willrich, the following transpired:

[M.H.] then he points the gun at my son's face and then points it towards me and then puts it to the back of [Ross's] head and shoved it. And then [M.H.] jumps out of the car and then runs to like the [driver's side] door and he couldn't open it. . . . [A]nd then backs up and points his gun at the window like he was getting ready to open fire. . . . [Ross] like looked at me and reversed—like shifted gears and started reversing the car. And right when the car started moving, that's when like bullets started coming in.

Willrich said she did not initially realize Ross had been shot. Their vehicle collided into a fence, and Willrich leaned over to put it in park. Neighborhood witnesses called 9-1-1.⁷ Although Willrich testified that she "saw somebody else get out" of the Cadillac when the shooting started, she was unable to provide a description.⁸ At some point between the car reversing and coming to a stop, Willrich threw out Ross's backpack and other belongings. Willrich saw M.H. grab Ross's backpack before jumping into the passenger side of the Cadillac and driving off. Willrich denied knowing the contents of the backpack and stated that while she was "aware" Ross sold marijuana, she denied that they had been meeting anyone to sell drugs.

2. Law Enforcement

Officers with the San Antonio Police Department (SAPD) and ambulatory services arrived at approximately 4:26 p.m. Ross was transported to a nearby hospital, where he succumbed to his injuries the following day. Scott Coonradt, a crime scene investigator with SAPD, testified he located four 9-millimeter caliber Luger spent shell casings and one .40 caliber Smith and Wesson spent shell casing near Ross's vehicle. Coonradt opined that the shell casings looked "pretty fresh" and did not appear to have "any type of weathering." SAPD Detective Lawrence Saiz testified similarly, stating that the different casing sizes indicated two weapons had been involved.

After learning that Ross was at the location following the direction of a man named "Dre," Detective Saiz seized Ross's phone. A search of Ross's phone revealed contact information for "Dre," who was later identified as King. Detective Saiz stated the text messages exchanged between King and Ross indicated the two were meeting on March 6th to execute a drug transaction.

On March 14, 2018, King and Berg, the actual owner of the phone used by King, were brought in for questioning. Detective Saiz questioned Berg while another detective questioned King. Detective Saiz stated that the two men were interviewed separately but simultaneously to better assess their credibility and corroboration or lack-thereof. Although Berg attempted to "distanc[e] himself from the actual crime" for the first twenty minutes of the interview, Detective Saiz said Berg eventually provided law enforcement with information on the co-defendants, including the location of the white Cadillac. Berg was unable to identify M.H. or appellant by name but gave physical descriptions of the two men.

Using information provided by Berg during his interview, Detective Saiz executed a search warrant of Woodard's residence and secured a white two-door Cadillac parked at the residence.⁹ Officers also located a backpack and several items of clothing with blood stains, including a jacket, inside a BBQ grill on the back porch. Neither M.H. nor Ross could be excluded as sources of DNA tested from the jacket and backpack. Woodard was subsequently placed under arrest and interviewed by Detective Saiz. Woodard implicated appellant in the shooting.

Detective Saiz testified that prior to interviewing Berg, King, and Woodard, SAPD received two anonymous Crime Stoppers tips naming appellant as a suspect in the shooting. The first informant stated:

Joseph [A]lv[a]rado a 23 or 24 y[ea]r old man black and [H]ispanic. He shot a man on sw street and the man later died at university hospital[.] [H]e shot up a car with a woman and child in [the] back seat. . . . I know this from Facebook and those people from crocket [sic] the trap house and that's where [appellant] stays at.

The informant requested that his or her identity be kept confidential because he or she feared "harass[ment]" "or even worse." The informant also disclosed that appellant sold drugs and had been physically abusive towards his girlfriend, Sarah Strickland. Several hours later, another tip was submitted: "Joseph [A]lv[a]rado shot at a 21 y[ea]r old [T]arik [R]oss on 5300 [S]herry [D]rive[.] [I]t happened at 4:30 pm a few days ago[.] I saw it on [F]acebook." This tip also included a phone number and Facebook page information for appellant and appellant's girlfriend.

Though law enforcement never located appellant's phone to conduct a data extraction, Detective Saiz testified that he was able to obtain and review appellant's cellphone records from his phone provider. The records indicated appellant was in frequent communication with Johnson immediately before and after the shooting.¹⁰ Appellant's phone was also in the same "coverage area" as the crime scene during the time of the murder.

3. Co-Defendants Berg and King

At trial, Berg testified that he and King had sustained non-life-threatening gunshot wounds during an unrelated shooting a few days after Ross's murder. Berg believed he was going to be speaking to law enforcement as a complainant, not suspect, when he agreed to meet with police.

Berg testified that in March 2018 he had been living with King in a small "barn" behind a trailer. Berg had lent his phone to King to contact Ross on March 5th and March 6th, the day of the shooting. According to Berg, Ross was a "plug," "someone who you can get drugs from on a regular basis." Berg believed the contact was for the purchase of marijuana, and he only learned "afterwards" about the plan to rob Ross. Berg said M.H., Berg, Woodard, Johnson, and appellant were "all in on the plan" and present at the barn when the discussion took place on March 5. The plan was to lure Ross to a random location a few streets away from the barn and rob him.

Berg testified that on March 6, all six men gathered at the barn before the robbery. Woodard drove the white two-door Cadillac, Johnson sat in the front passenger seat, and M.H. and appellant sat in the back. Berg stayed behind at the barn with King. Approximately ten to fifteen minutes later, Berg heard "five or six" gun shots. While Bergnever saw Woodard or M.H. again, Berg said Johnson returned to the barn later and threatened him to "keep [his] mouth shut or else."

Berg testified that after he was arrested, he was placed in a booking cell along with fifteen to twenty other individuals, including appellant.¹¹ Appellant purportedly told Berg that he had exited the Cadillac after M.H. Berg testified that appellant said:

Hey, I just want you to know that all I really did was—I messed up. I was at the window, and [Ross] ended up throwing the car in reverse. And everybody got scared, and [M.H.] shot. And then I tripped[,] and I fell and I shot the bottom of the car.

Woodard also testified at trial.¹² He stated Johnson had contacted him concerning "a play," "some way to get money." Woodard knew Johnson from a prior "play"; the two were convicted for burglary of a habitation in 2017. Woodard said he met with Johnson, M.H., Berg, King, and appellant at the barn. Woodard identified everyone's role in the robbery: Johnson supplied the weapons; King communicated with Ross, using Berg's phone, to draw Ross to the location; M.H. was "the one to actually rob [Ross]"; appellant was "backup"; and Woodard drove.

Woodard testified that on the day of the shooting, appellant and M.H. carried guns, a "Glock 27" and a "Glock 19," respectively. Woodard drove M.H. and appellant to the location. After Ross arrived, Woodard watched M.H. enter Ross's vehicle on the back passenger side. "About five minutes after that," Woodard saw Ross try to "pull off," and that is when appellant exited the Cadillac. Woodard said appellant was situated "to...