Caballero v. State

695 S.W.3d 467

Kevin Antonio CABALLERO, Appellant

v.The STATE of Texas, Appellee

NO. 01-19-00878-CR, NO. 01-19-00879-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 31, 2023

Rehearing en banc Denied July 25, 2023

Discretionary Review Refused November 22, 2023

Rehearing Denied February 21, 2024

On Appeal from the 337th District Court, Harris County, Texas, Trial Court Case Nos. 1594160, 1594161

Zachary Gibson, Kim K. Ogg, Houston, for Appellee.

Mark Hochglaube, Houston, for Appellant.

Panel consists of Justices Landau, Hightower, and Rivas-Molloy.

OPINION

Sarah Beth Landau, Justice

Kevin Antonio Caballero was convicted of two counts of aggravated assault with a deadly weapon and sentenced to 30 years’ confinement.¹ The charges stemmed from Caballero shooting two men during what was intended to be a fistfight in his friend’s backyard.

In this direct appeal, Caballero raises a single issue—that he received ineffective assistance of his retained counsel during the guilt-innocence and punishment phases of his trial. The State points out that Caballero raised this same issue in a denied motion for new trial and requests that we treat Caballero’s issue as a challenge to the denial of his new-trial motion, which would invoke a more deferential standard and require us to view the record in the light most favorable to the trial court’s ruling.

We agree that the ineffective-assistance claim must be analyzed on appeal as a challenge to the denial of Caballero’s motion for new trial in which he asserted the same claim. But we conclude that the trial court abused its discretion in denying the new-trial motion and, therefore, reverse and remand for a new trial.

Background

The events leading to Caballero’s conviction happened in the backyard of a home owned by K. and E. Singleton.

K. Singleton had the idea that ongoing tensions between a young man living in her home, Ashton Smading, and another man, Matt Brown, needed to be resolved through a fistfight to avoid tensions erupting into a gunfight. Singleton arranged for Smading and Brown to fight in her backyard. Each brought friends as "backups" to protect them from being "jumped" during the one-on-one fight. Smading brought Caballero. Brown brought three men: D. Byars, S. Bell, and Z.

All men, except Smading, went to the backyard. Smading stayed in the house and left Caballero alone in the backyard with Brown and his three friends. K. Singleton was also in the backyard. There is video evidence of what happened next in the fight because the Singletons’ home surveillance videos were admitted as evidence and played for the jury.

The first four videos show events leading to the shooting. In the first video, Caballero is seen arriving alone to the Singleton/Smading home. In the next video, K. Singleton is seen removing a trash can and recycling bin from the backyard before the fistfight. In the third video, Brown and his three friends set their belongings on the ledge of the privacy fence and gather for the fight in the backyard. Brown is hopping up and down, punching the air. He engages in a brief, friendly spar with one of his friends as he waits. In the fourth video, Caballero walks to the far corner of the fenced yard and turns toward Brown and his friends with no yard space behind him. The key video is the fifth video.

In the fifth video, all men appear to be waiting for Smading. Caballero is seen squatting down, with his back to the far corner of the fenced yard. Brown and Bell are standing near Caballero. Byars, Brown’s other friend, is standing on the other side of the privacy fence. And Singleton is standing at the entrance of the backyard gate. Brown and his friends are standing near Caballero. The men are talking, but there is no audio on the recording to know what is being said or to whom. Brown and Bell appear to be talking, and Bell points his finger at Caballero and then walks away. Caballero stands, pauses, then walks toward a nearby gate in the privacy fence. Byars and Singleton are standing at the gate opening. Caballero backs away as he runs his hands through his hair. He then pushes forward to the gate again and moves past Singleton and Byars, who turns but remains at the gate. Brown, Bell, and Z move toward the gate. Caballero is in what appears to be a space between the privacy fences of neighboring homes. Caballero then moves out of view.

Brown and his three friends are at or around the gate, when, suddenly, they lurch, duck, and run. Byars is seen collapsing on the other side of the privacy fence. Caballero comes back into view. He is holding a gun, shooting toward the men in the backyard. Brown jumps over the backyard fence for cover. Caballero moves out of view again, just briefly. As he comes back into view, he is seen reaching into his shorts pocket, pulling out a black object, and bringing it up toward his gun. He moves out of view again. Bell also runs toward the backyard fence and jumps over.

All men are out of view at this point, except Byars. Byars is lying on the ground in the space between the privacy fences. His legs are visible, but his upper body is obscured from view by a privacy fence. Caballero is not in view. Byars is motionless until, suddenly, his leg twitches high into the air.² After a moment, Byars stands and hurries out of view. There are blood stains on his t-shirt. The video ends with an empty backyard.

A. The State’s theory of the case

The State established its theory of the case in opening statements. The prosecutor told the jury that Caballero brought "a gun to a fistfight" and "start[ed] shooting at everyone execution style." Caballero was trying "to kill" Brown and his friends "pointblank, unprovoked." The prosecutor characterized the two men who were shot—Byars and Bell—as merely "in the wrong place, the wrong time, not trying to hurt anybody." They were "there because their friend was supposed to be in a fistfight." The evidence would show, the prosecutor said, that no one approached or tried to beat up Caballero. More specifically, the prosecutor said that Brown and his friends "never threaten[ed]" Caballero. Throughout trial, the prosecutor framed the shooting as an unprovoked attempt to execute unarmed, harmless bystanders.

The trial proceeded with the State calling witnesses without an opening statement from the defense.

B. The State’s three witnesses

The first witness was K. Singleton. She testified about the layout of her house and backyard. She authenticated the surveillance videos the police obtained from her home security system and testified that they accurately represented what happened that day. And she identified Caballero in the courtroom.

Singleton testified that there was supposed to be a fistfight in her backyard between Brown and Smading. She invited them to her house to fight so that they could resolve their disputes. She told them it would be a fistfight only, no weapons. Singleton "patted down" Brown and his friends to make sure they did not have weapons. She did not think to pat down Caballero, who arrived later.

She described Brown and his friends as being "hyped up" and "very mouthy." She told them there would be "no jumping" the other side. Asked what happened when Caballero went around the comer, she testified that he "pulled out a gun and started shooting." She added, "The guys were trying to jump him." At that point, she ran and hid in her garage. She described the sound of gunfire, stating that it "sounded like everybody was shooting." The prosecutor did not ask anything further about threatening conduct directed toward Caballero.

On cross-examination, Singleton said the men appeared to "have it out for" Caballero. Caballero’s counsel asked her why she thought that. She said it was based on what they were saying to Caballero. The State objected to testimony about what Brown and his friends said, asserting it was hearsay. The court sustained the objection. Caballero’s counsel abandoned any effort to obtain testimony about threatening comments to Caballero. He did not make an offer of proof to memorialize the testimony he was not allowed to elicit.

Rather than pursuing testimony about any threatening comments that could lay the groundwork for a potential self-defense claim, counsel asked Singleton whether it appeared to her, having been an eyewitness to the events, that Caballero was in imminent danger. The State objected that the question called for speculation. The trial court sustained the objection. Again, counsel did not make an offer of proof to memorialize the testimony he was not allowed to elicit.

Throughout the cross-examination, the only question that pointed toward any defensive theory was a question confirming Singleton’s testimony that she thought Brown and his friends were going to "jump" Caballero.

The next witness was S. Bell. He said he was sitting in a bar with friends when Brown got a text to meet at a neutral location to fight. They went to Singleton’s backyard. He understood that it was supposed to be a one-on-one fight between Brown and someone else. Bell approached Caballero m the backyard to tell him to go get his friend for the fight. The "next thing" that happened was gunshots. Bell was shot in the arm. He hid behind an air conditioner. While Caballero reloaded, Bell ran. That is when he was shot in the back. Bell was treated for a collapsed lung. His doctors did not remove the bullet from his back, fearing the surgery would cause more damage. Bell identified only Caballero as the shooter. He testified that Caballero was the only person who became violent.

The State’s third witness was S. Byars, the other man shot that day. He testified that he was at a bar and asked Brown for a ride home. As they drove, Brown took a phone call and then told Byars that they were going to another location for Brown to fight someone. They went to the backyard, but the guy did not come out. Byars got a "bad feeling" about it.

According to Byars, he did not hear...