Villarreal v. State

DOMINGO VILLARREAL, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-18-00396-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

August 20, 2020

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Perkes, and Tijerina

Memorandum Opinion by Justice Perkes

Appellant Domingo Villarreal was convicted of manslaughter with a deadly weapon, a second-degree felony, and sentenced to twenty years' imprisonment. See TEX. PENAL CODE ANN. § 19.04. By what we construe as three issues, Villarreal argues (1) the prosecutor engaged in prosecutorial misconduct, and he was "denied a fair trial when the prosecutor became a necessary trial witness on a contested issue whom Villarreal was prevented from cross-examining in violation of his 14th and 6th Amendment rights and Texas Constitution Art. I, §10"; (2) the trial court erred in failing to sua sponte declare a mistrial following the prosecutor's misconduct; and (3) the evidence was legally insufficient to support a conviction. We affirm.

I. BACKGROUND

On March 15, 2017, Villarreal was indicted for "capital murder by terror threat/other felony." See id. § 19.03(a)(2). Villarreal, along with Ian Hernandez, Juan Herrera, Andrew Luis, and Joe DeLuna, were implicated in the murder and attempted robbery of seventy-year-old Jesus Cruz. Villarreal pleaded not guilty and the case proceeded to trial, where several witnesses, including Luis, testified.

A. Officer Allen Miller

Corpus Christi Police Department (CCPD) Senior Officer Allen Miller testified he was dispatched to a residence in the 1400 hundred block of El Paso Drive over reports of a shooting on December 18, 2016, at approximately 11:26 p.m. Miller stated he arrived within "minutes of the call going out." According to Miller, as he was pulling into the driveway, "We had people running at us saying, 'They shot. They shot him, they shot him. They shot grandpa.'" Once inside the home, Miller testified he attempted "basic life-saving, combat life-saving medical aid" on an elderly male later identified as Jesus until emergency personnel arrived. Jesus succumbed to his injuries at the hospital.

B. Severo Cruz

Jesus's son, Severo Cruz, testified that four masked men broke into his home that evening, and he believed he knew the identities of two of the men: Villarreal, his daughter's ex-boyfriend, and Hernandez, Villarreal's friend.

Severo said he had just gotten out of the shower when he "heard the [front] door get kicked open." He ran out to the hallway to find his mother, wife, and their three children being ordered to "get the F down on the ground." Severo testified he and Jesus ran to Jesus's room, where he tried to "help [his] dad to get out of the window." "[I heard] the gunshots by the hallway, two gunshots, and then I heard my dad just take a deep breath and just go down," said Severo. The two bullets penetrated the closed bedroom door and struck Jesus, who he said was beside him at the time.

When asked how he knew who was responsible for his father's death, Severo maintained he recognized one of the voices as belonging to Villarreal and identified Villarreal in the courtroom. Severo also insisted he heard Hernandez say "'[s]hoot the bitch open.'" On cross-examination, Severo was confronted with his 9-1-1 call, wherein he was asked by dispatch if he knew who the perpetrators were, and Severo said he did not.

Severo also testified to events occurring earlier that same evening. Severo stated he had come out of his bedroom to find Villarreal in the living room, arguing with his daughter, Miranda Cruz. Severo testified Villarreal "started just telling [him] stuff," kicked the family's dog, "then from there he got the Christmas tree and threw it against the wall, and he said, 'I'll be back.'" Severo called the police to report the incident.¹

C. Miranda Cruz

Miranda, Severo's 18-year-old daughter and Villarreal's ex-girlfriend, also testified. Miranda, like Severo, identified two of the masked men as Hernandez and Villarreal. AfterVillarreal was arrested, Miranda said he called her from jail to apologize. "I remember he told me he was sorry," testified Miranda. Jail call recordings were admitted into evidence,² and Villarreal can be heard telling Miranda: "Dude, I'm sorry, dude. I love you so much. I'm sorry, Miranda. It was never supposed to be like this. I'm sorry. I just—I hope you take care of yourself. Stay out of trouble. Be good for me, please. I wanted to hear your voice. I'm sorry for everything, Miranda."

Miranda acknowledged on cross-examination that Villarreal could have been referring to what had transpired earlier in the evening. On direct-examination, however, Miranda provided conflicting testimony as to why Villarreal had been at her home previous to the incident and what prompted him to leave. Miranda first stated, "What happened was he said that my dad burned his—[Villarreal's] aunt." Miranda then testified that Villarreal was upset with her because he wanted her to go over to his home, but she did not want to go. Miranda stated Villarreal then kicked the family's Christmas tree and dog before leaving. She testified, "He said he was coming back, he told my dad, he said, 'SOS. You have a green light.'" Miranda explained that "SOS" meant "shoot on sight." Miranda then stated they parted ways soon after but not because she wanted him to leave. "I was mad because he wasn't staying."

D. Andrew Cruz

Andrew Cruz³, Miranda's nineteen-year-old brother, testified that after the four armed men entered the home, they demanded everyone drop to the floor. Andrew saidhe was "pistol whipped"⁴ and threatened. "They were threatening us[,] saying, 'Are you ready to die,'" said Andrew. Although he named Hernandez and Villarreal as two of the individuals who had broken into the home based on voice recognition, Andrew admitted on cross-examination that he had never met Hernandez before and did not know what his voice sounded like. Andrew said it was Miranda who told him she knew it was Hernandez.⁵

E. Andrew Luis

Luis, twenty-three years old at the time of trial and an accomplice in the shooting, denied he used drugs or was involved in any criminal activity prior to the December 18, 2016 incident. In exchange for testifying, Luis accepted a plea bargain deal for ten years' deferred adjudication.

Luis testified that on the evening of December 18th, he received a phone call from Herrera asking him if he wanted to help Herrera "hit a lick." Luis explained that term was slang for getting marihuana by use of force. Luis then drove his 2011 Nissan Juke to Herrera's mother's house. Luis said Herrera got in the car and described the "plan." While they were still parked outside Herrera's residence, Luis said Herrera called Villarreal and Hernandez. Herrera then went back into his house and returned several minutes later with his infant child⁶ and cousin, Joe DeLuna. Once "the cousin got involved," Luis saidhe became concerned "because [DeLuna] had just got out of prison." Luis testified he "wanted" to say he was "done," but he was "scared of both of them."

Luis said he was first instructed to drive to Villarreal's mother's home to pick up Villarreal and Hernandez. Luis testified he was then given directions to Cruz's home. Once there, Villarreal, Hernandez, Herrera, and DeLuna "got out and [Herrera] told me to drive around the block," detailed Luis, who, after following Herrera's orders, remained inside the car with the baby. Though Luis could not recall ever hearing gun shots, he testified he remembered seeing DeLuna and Hernandez running back to the vehicle carrying guns. "All I hear—I don't know who says what, but all I heard is 'Who shot? Who shot?'", and someone in the backseat responded, "'I did.'" Luis said Villarreal, Hernandez, and DeLuna were in the backseat, and he believed it was DeLuna who had accepted responsibility. Luis testified that Herrera and DeLuna threatened everyone to keep quiet "or else."

When he dropped off DeLuna, Luis said he noticed DeLuna had taken the guns with him. Luis, Villarreal, Hernandez, and Herrera then went to Whataburger, and a receipt with a timestamp of 12:25 a.m., about an hour after the shooting, was admitted into evidence. Luis testified he was on his way to Herrera's home, having just dropped off Villarreal and Hernandez, when he was pulled over by police.⁷

Luis denied ever going into the Cruz's home or touching a weapon. On cross-examination, Luis was unable to answer why he had more gunshot primer residue particles on his hands than the other men involved.

F. Roger Bernal

Roger Bernal testified that Villarreal confided in him while the two were in custody at the Nueces County Jail.⁸ Bernal said Villarreal told him "he had got into it" with his girlfriend's parents. "That he had somebody to go over there to rough up, what was it, her father," testified Bernal. On cross-examination, Bernal clarified that he was never told by Villarreal that he, himself, had gone to "rough up" Miranda's father. "I don't know the person's name, just that he had sent somebody to go rough up her father," testified Bernal.

Bernal's relationship with the prosecution was also briefly at issue at trial. According to Bernal, at some undisclosed point after Bernal was no longer in custody and had provided his statement to the police to report what Villarreal purportedly disclosed to him, the prosecutor had paid Bernal $20 to help him "move some furniture" out of a garage.

G. Physical Evidence

Within hours of the shooting four of the five men were arrested, and their hands and arms were swabbed for gunshot residue (GSR). Christopher Chany, a GSR analyst with Texas Department of Public Safety Crime Laboratory in Austin, testified he found "characteristic gunshot primer residue particles"⁹ on all four men.

For Mr. Villarreal[,] [there] was one characteristic gunshot primer residue particle was found on his kit. For Mr. Hernandez[,] one characteristic

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