NUMBER 13-07-00723-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ANDREW CANTU, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 319th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela

Memorandum Opinion by Justice Benavides

Appellant, Andrew Cantu, was charged with one count of murder and two counts 

of aggravated assault. See TEX. PENAL CODE ANN. §§ 19.02, 21.01, 22.02 (West 2003). 

Cantu waived his right to a jury trial, and a bench trial was held. The trial court found 

Cantu guilty on all three counts and sentenced him to life on the murder charge and 
2

twenty years’ confinement on each aggravated assault charge, respectively, with the 

three sentences ordered to run concurrently in the Texas Department of Criminal 

Justice—Institutional Division. In three issues, with numerous sub-issues, Cantu

contends that: (1) the evidence was legally insufficient to support his conviction on all 

counts; (2) he was denied effective assistance of counsel; (3) and the trial court abused 

its discretion by allowing him to waive his right to a jury trial without proper 

admonishment and by sentencing him to the maximum punishment for each count 

without reviewing the evidence. We affirm.

I. BACKGROUND

On April 6, 2006, Cantu was at a pool hall called ―Hot Shots‖ with his girlfriend 

(later to become his wife) Jessica Serna. A verbal altercation occurred between Cantu, 

Serna, and ―Chi Chi Boy.‖ Cantu and Serna were asked to leave the premises, but they 

returned and later continued their altercation with Chi Chi Boy in the parking lot. At one 

point, Cantu drove his maroon Suburban into the parking lot and hit Ignacio Tamgumay, 

Michael Veira, and Immanuel Garcia, all of whom were in the process of leaving the pool 

hall. It is disputed whether the victims were part of the initial altercation inside the 

premises, but they were not part of the continued altercation in the parking lot. All three 

victims were seriously injured, and Tamgumay died as a result of his injuries.

Serna testified that she knew Chi Chi Boy and had problems with him in the past. 

Serna testified that she and Cantu left the bar and picked up their friend, Daniel 

Maurecio. When they returned to Hot Shots to pick up Serna’s sister and her sister’s 

father-in-law who had remained at the bar, they were surrounded by at least five 

individuals. These individuals were ―calling out‖ Cantu. Maurecio jumped out of the 
3

vehicle and yelled, ―[W]ho is messing with my homeboy?‖, and the exchange quickly 

became physical. Serna testified that she tried to get Maurecio back in the vehicle and 

that Cantu also tried to get out of the Suburban, but ‖they‖ came after him, so Cantu got 

back in. 

Serna testified that Cantu began to drive away. She then saw him turn the 

Suburban’s wheel, missing an Expedition, but hitting a Ford F-150 truck. Cantu then hit 

a passenger vehicle and dragged it because it was ―stuck‖ to the Suburban. Serna 

stated that Cantu did not run down anyone, that he was not driving fast, and that they 

had problems with the steering wheel of the Suburban. 

Maurecio testified that after jumping out of the Suburban, someone hit him. As 

he was running away, he heard a commotion and saw the Suburban smashing into a 

white car.

Michael Veira, a friend of the deceased, Tamgumay, testified that he and 

Tamgumay went to Hot Shots to play pool with their friends Lenardo DeLejia and 

Immanuel Garcia. Tamgumay was driving a silver Ford F-150 truck, and Veira was a 

passenger in the truck. DeLejia was in a Chevrolet Malibu, and Garcia was his 

passenger. Before Hot Shots’s closed, Veira went to the bathroom and heard the 

altercation between Cantu, Serna, and Chi Chi Boy. He testified that he did not know 

any of them. After about five minutes, Veira and his friends left the premises and 

gathered in the parking lot to discuss what they were going to do next. The F-150 and 

Malibu were parked next to each other, with Veira and his friends standing around the 

two vehicles.

Veira testified that, after a fight broke out, he saw the Suburban driving away but 
4

then it returned and drove straight towards his friends and him. Veira testified that there 

was no hesitation on the part of the driver, and that the Suburban was going between 

twenty-five and thirty-five miles per hour. Veira stated that the next thing he 

remembered was a ―smack,‖ causing debris and glass to shatter. He was thrown 

against other vehicles, and felt tires roll over his legs. Veira testified that he did not 

know where he ended up, but that he was hit so hard that he was lifted out of his shoes. 

He denied fighting with Cantu and Serna inside the premises. The other members of 

Veira’s party, Garcia and DeLejia, echoed Veira’s account of the events.

Vera Rodriguez was at Hot Shots with her husband, Jose Rodriguez, Jr., and her 

sister, Elma Ortiz. After closing, they walked to the parking lot where they heard people 

arguing. Vera then saw the Suburban hitting vehicles and then come around again and 

hit a person who subsequently flew through the air. She testified that the first time the 

Suburban came around, it hit vehicles and people; she recalled that it came around 

again to hit the same person another time. Vera did not see the Suburban ―stuck‖ on 

any vehicle. She recalled that the Suburban was travelling more than ten miles per 

hour and was ―not hesitating.‖ Vera, along with her husband and sister, jumped into 

their vehicle to get away and called 9-1-1. 

Jose Rodriguez Jr. testified that the Suburban began hitting cars when he saw 

somebody fly into the air. He witnessed the Suburban run over one person twice. 

After the Suburban left, Jose saw two people on the ground and noticed that Tamgumay 

was coughing up blood. He stayed with the injured men until an ambulance arrived.

Adam Herrada, another bystander, testified that the Suburban was being 

swarmed by between seven and fifteen people who all appeared to be trying to attack 
5

the driver, Cantu. Herrada testified that it seemed to him that Cantu was merely trying 

to get away.

Jose Anthony Jacinto was one of the bouncers at Hot Shots. He testified that 

after closing, someone was banging at the front door of the club. He testified that after 

opening the door, several people rushed into the bar because they were scared.

Officer Anthony Sanders of the Corpus Christi Police Department testified that he 

was on patrol the night of April 6, 2006. Upon arrival at the bar, he noted that the 

atmosphere was chaotic with people running around and yelling different things to him. 

Someone advised him that a maroon Suburban had hit the victims. Officer Daniel 

Tovar assisted Officer Sanders and discovered a maroon Suburban abandoned in the 

alleyway. He testified that he secured the vehicle and found no one inside the vehicle. 

The Suburban was locked and had damage to the front end of the vehicle. Detective 

Ralph Lee, a homicide and robbery detective with the Corpus Christi Police Department, 

interviewed several witnesses on the scene. After his investigation, he obtained a 

warrant for Cantu’s arrest.

Starla White, a crime scene investigator for the Corpus Christi Police Department, 

conducted an investigation of the crime scene. She took photographs of the area, 

vehicles, and persons, including Tamgumay. She collected all of the evidence from the 

scene, including clothing and blood samples. She later documented Tangumay’s 

autopsy. Her photographs were introduced into evidence and showed significant 

damage to the front of the F-150 truck, along with visible blood splatters. The 

windshield was also shattered. The photographs revealed that Tamgumay’s body was 

lying next to the vehicles. The photos of the white Malibu also showed damage to the 
6

front driver’s side. The Suburban showed damage to the front end.

Ray Fernandez, M.D., the medical examiner for Nueces County, testified that he 

performed the autopsy on Tamgumay. The cause of his death was blunt chest and 

abdominal trauma; these injuries were consistent with crushing from vehicle tires. 

Some of the injuries resulted from the initial impact whereas others were from being run 

over by a vehicle. Tamgumay was hit with enough force to lift him out of his shoes. 

Dr. Fernandez matched the injuries to the photos of the damaged Suburban. He 

opined that at time of impact, the Suburban was going between twenty-five to forty miles 

per hour.

Abel Cantu, Cantu’s father, testified that he originally found and helped Serna 

purchase the Suburban. However, he testified that between the time of purchase, 

January 11, 2006, and the date of the incident, April 6, 2006, the Suburban was stolen 

from an H.E.B. grocery parking lot. When the Suburban was returned, the steering did 

not function properly.

II. SUFFICIENCY OF THE EVIDENCE

A. Applicable Law

By his first issue, Cantu challenges the legal sufficiency of the evidence to support 

his conviction on all charges. Our sufficiency review must be under ―a rigorous and 

proper application‖ of the Jackson standard of review. See Brooks v. State, 323 

S.W.3d 893, 906 (Tex. Crim. App. 2010). Under this standard, ―the relevant question is 

whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319 (1979); see Brooks, 323 
7

S.W.3d at 902 n.19. ―[T]he fact-finder’s role as weigher of the evidence is preserved 

through a legal conclusion that upon judicial review all of the evidence is to be 

considered in the light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319 

(emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) 

(―The jury, in all cases, is the exclusive judge of facts proved, and the weight to be given 

to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) 

(―The jury is the exclusive judge of the credibility of witnesses and of the weight to be 

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in 

the evidence.‖).

Sufficiency of the evidence is measured by the elements of the offense as defined 

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. 

App. 1997). Under a hypothetically correct jury charge, in a murder case, the State was 

required to prove beyond a reasonable doubt that Cantu intentionally or knowingly

caused the death of an individual. See TEX. PENAL CODE ANN. § 19.02. In the 

aggravated assault cases, the State was required to prove beyond a reasonable doubt 

that Cantu intentionally, knowingly, or recklessly caused bodily injury to another and 

used a deadly weapon during the commission of the assault. Id. §§ 

22.01(a)(1), 22.02(a)(2).

A defendant’s intent may be inferred from his words, acts, and conduct. Patrick 

v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). ―Intent and knowledge are fact 

questions for the jury, and are almost always proven through evidence of the 

circumstances surrounding the crime.‖ Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. 

App. 1984)); see Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) 
8

(Meyers, J., concurring).

B. Analysis

Cantu argues that he was trying to avoid an altercation by leaving the premises 

and that he was assaulted after he returned but when he was trying to get away. 

However, the testimony and evidence contradict this argument. Serna’s testimony

shows that Cantu participated in the argument inside Hot Shots. Cantu also voluntarily 

returned to the premises after being told to leave. It was his passenger, Maurecio, who

exited the vehicle and began the argument with the other individuals. Cantu then drove 

the Suburban at a dangerous speed through a parking lot, hitting several vehicles and at 

least one person. He returned through the parking lot at least one more time, running 

over Tamgumay. The testimony from independent witnesses, Vera and Rodriguez, 

was that Cantu intentionally drove towards the people and did not try to avoid the victims

or vehicles. The damage to the vehicles was significant, and the testimony from the 

medical examiner, Dr. Fernandez, indicated that Cantu hit the victims hard enough to lift 

them from their shoes. 

Though some of this evidence was contradicted, it was within the province of the 

jury to resolve any such questions, as the jury is the sole judge of the credibility of all of 

the testimony. See Wesbrook, 29 S.W.3d at 111. Additionally, Cantu’s intent to kill 

and to cause bodily injury could be inferred from the manner in which he drove the 

Suburban. See Patrick, 906 S.W.2d at 487.

Thus, viewing the evidence in the light most favorable to the prosecution, we find 

that a rational trier of fact could have found the essential elements of murder and 

aggravated assault beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 
9

323 S.W.3d at 902 n. 19; TEX. PENAL CODE ANN. §§ 29.02, 29.03(a). Therefore, the 

evidence was sufficient to support Cantu’s conviction and we overrule his first issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

By his second issue, Cantu argues that he received ineffective assistance of 

counsel because his trial counsel: (1) advised him to waive a jury trial, (2) failed to file a 

motion for new trial, (3) failed to argue for the inclusion of lesser-included offenses in the 

jury charge, and (4) failed to obtain rulings on pretrial motions.

A. Applicable Law

We apply the two-pronged Strickland analysis to determine whether counsel’s 

representation was so deficient that it violated a defendant’s constitutional right to 

effective assistance of counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. 

App. 2005); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no 

pet.); see Strickland v. Washington, 466 U.S. 668, 684 (1984). An appellant claiming a 

Strickland violation must establish that: (1) ―his attorney’s representation fell below an 

objective standard of reasonableness, and (2) there is a reasonable probability that, but 

for his attorney’s errors, the result of the proceeding would have been different.‖ 

Jaynes, 216 S.W.3d at 851; see Strickland, 466 U.S. at 687. 

We afford great deference to trial counsel’s ability—―an appellant must overcome 

the strong presumption that counsel’s conduct fell within the wide range of reasonable 

professional assistance.‖ Jaynes, 216 S.W.3d at 851. The appellant must prove both 

elements of the Strickland test by a preponderance of the evidence. Munoz v. State, 24 

S.W.3d 427, 434 (Tex. App.–Corpus Christi 2000, no pet.). 

B. Analysis
10

1. Waiver of Jury

Cantu argues that his trial counsel’s performance was deficient because he did 

not practice in Nueces County and was not aware of the trial court’s tendency to give 

lengthy sentences for violent offenses. However, there is nothing in the record to 

support this allegation. Further, the record shows that Cantu’s rights were explained to 

him, as he fully consented to the waiver of a jury trial by voluntarily executing said 

waiver. The waiver was explained to him in open court, and Cantu was specifically 

advised that if he was found guilty, he would not be eligible for probation because he 

waived a jury. He also signed an affidavit indicating he understood what he was 

signing. Accordingly, there is nothing in the record to show that there was deficient or 

prejudicial behavior to indicate ineffective assistance of counsel on this issue. Jaynes, 

216 S.W.3d at 851; see Strickland, 466 U.S. at 687. 

2. Failure to File a Motion for New Trial 

Cantu next argues that his counsel’s failure to file a motion for new trial 

constituted ineffective assistance counsel. Certain presumptions are made when 

reviewing ineffective assistance of counsel claims that involve the failure to file new trial 

motions. First, when trial counsel did not withdraw and was not replaced by new 

counsel prior to the deadline of filing new trial motions, a rebuttable presumption exists 

that trial counsel continued to represent the defendant during the time for filing a motion 

for new trial. Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000); Oldham v. 

State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). Second, if a motion for new trial is 

not filed in a case, the rebuttable presumption is that the option was considered by 

appellant’s counsel and rejected. Oldham, 977 S.W.2d at 363. A third presumption 
11

arises if the appellant filed a pro se notice of appeal. In such cases, we consider the 

filing as evidence that the appellant was informed of at least some of his appellate rights 

and then we presume that the appellant was adequately counseled unless the record 

affirmatively displays otherwise. Id.

All these presumptions apply to the procedural history of this case. The 

judgment was signed on November 29, 2007. A pro se notice of appeal was filed on 

December 5, 2007. A motion to withdraw was filed on May 5, 2008, and a new attorney 

appointed on May 8, 2008. Cantu was represented during the time period that a motion 

for new trial should have been filed. See TEX. R. CIV. P. 329b (motions for new trial 

must be filed prior to or within thirty days after the judgment is signed). Because the 

record contains no motion for new trial, we presume that Cantu considered and rejected 

having his attorney file one. Oldham, 977 S.W.2d at 363. The record contains no 

contrary evidence. Finally, because the record shows that Cantu filed a timely pro se 

notice of appeal, we consider the filing as evidence that he was informed of his appellate 

rights and presume that he was adequately counseled. Id. Again, the record contains 

no contrary evidence. Under Smith and Oldham, we conclude that Cantu failed to 

overcome the presumption that he had adequate counsel during the post-trial window of 

time when a new trial motion could have been filed. See id.; Smith, 17 S.W.3d at 662.

3. Failure to Seek a Lesser-Included Offense in the Charge

Cantu further contends that he was denied effective assistance of counsel 

because his counsel failed to request the lesser-included offense of either manslaughter 

or criminally negligent homicide. See TEX. PENAL CODE ANN. §§ 19.04, 19.05 (West 

2003). A defendant is entitled to an instruction on a lesser-included offense if two 
12

conditions are satisfied. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 

1993). First, the lesser-included offense must be included within the proof necessary to 

establish the offense charged. Id. at 672. Second, there must be some evidence in 

the record that would permit a jury to rationally find that, if the defendant is guilty, he is 

guilty of only the lesser offense. Id. at 673. It is not enough that the jury may 

disbelieve crucial evidence pertaining to the greater offense. Skinner v. State, 956 

S.W.2d 532, 543 (Tex. Crim. App. 1994). Rather, there must be some evidence 

germane to a lesser-included offense for the fact-finder to consider before an instruction 

on a lesser-included offense is warranted. Bignall v. State, 887 S.W.2d 21, 24 

(Tex.Crim.App. 1994).

In this case, however, we need not address whether Cantu would have been 

entitled to a lesser-included offense because it was within the reasonable zone of 

professional conduct for Cantu’s counsel not to seek such an instruction. For example, 

his counsel may have made a strategic decision that Cantu would be more likely to be 

acquitted all together if no lesser offense was given to the jury. Such strategic 

decisions, even if they fail to produce the desired outcome, are not necessarily 

unreasonable. Therefore, we cannot say that Cantu’s attorney’s actions in this regard 

fell below an objective standard of reasonableness. See Jaynes, 216 S.W.3d at 851; 

Strickland, 466 U.S. at 687. 

4. Failure to Obtain Rulings on Pretrial Motions

Finally, Cantu argues that his counsel was ineffective in failing to obtain rulings on 

pretrial motions. However, he fails to show that any of the pretrial motions were 

meritorious. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (to prevail 
13

on ineffective assistance claim based on failure to file a motion to suppress evidence, 

appellant must show motion would have been granted); Roberson v. State, 852 S.W.2d 

508, 510–11 (Tex. Crim. App. 1993) (appellant must show pretrial motions had merit and 

that rulings would have changed the outcome of the case before counsel will be 

considered ineffective in failing to assert the motion). Without a showing that rulings on 

the motions would have changed the outcome of the case, an appellant cannot establish 

ineffective assistance of counsel for failure to obtain a ruling on pretrial motions. Magic 

v. State, 217 S.W.3d 66, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

The only pretrial motion specifically argued by Cantu was a motion concerning 

prior bad acts. However, this testimony was only elicited in the punishment stage of the 

trial. There is no argument on whether the motion was meritorious or if and how it 

would have changed the outcome of the case. By simply arguing that his counsel did 

not obtain rulings, Cantu fails to to establish ineffective assistance of counsel. Cantu’s 

second issue is overruled.

IV. BENCH TRIAL

In his final issue, Cantu seems to argue that the trial court abused its discretion by 

allowing him to proceed with a bench trial and not taking time between evidence and 

making his ruling.

Article 1.13(a) of the Texas Code of Criminal Procedure provides that a criminal 

defendant may waive the right of trial by jury, upon entering a plea, but requires that the 

waiver be made in person by the defendant in writing in open court with the consent and 

approval of the court and the approval of the attorney representing the State. TEX.

CODE CRIM. PROC. ANN. art. 1.13(a) (West 2005). The provision further provides that the 
14

trial court’s consent and approval of the waiver must be entered of record on the minutes 

of the court and the approval of the State’s attorney must be in writing, signed, and filed 

in the papers of the cause before the defendant enters his plea. Id. The requirements 

of this article were followed by the trial court. No further admonishments were required, 

and accordingly, there was no abuse of discretion. 

Additionally, there was no abuse of discretion in the timing of the trial court’s 

ruling. The trial court was present throughout the testimony of all the witnesses and the 

introduction of all the evidence. The trial court need not take any further time to review 

the evidence at the punishment stage when he was the fact-finder in the guilt/innocence 

phase. Cantu cited no authority, and we find none, in support of the argument that 

additional review of the evidence must occur between a trial court’s finding of guilt and its 

determination of punishment. Cantu’s third issue is overruled.

V. CONCLUSION

Having overruled all of Cantu’s issues on appeal, we affirm the trial court’s 

judgment.

________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

30th day of August, 2011.