NO. 04-14-00682-CR

IN THE COURT OF APPEALS FOR THE 

FOURTH DISTRICT OF TEXAS 

SAN ANTONIO, TEXAS 

______________________________ 

BENITO GARZA, 

Appellant 

v. 

THE STATE OF TEXAS, 

Appellee 

______________________________ 

ON APPEAL FROM THE 187th DISTRICT COURT

OF BEXAR COUNTY, TEXAS 

CAUSE NO. 2013-CR-9168 

______________________________ 

BRIEF FOR THE STATE 

______________________________ 

NICHOLAS “NICO” LAHOOD

Criminal District Attorney 

Bexar County, Texas 

LAURA E. DURBIN

Assistant Criminal District Attorney 

Bexar County, Texas 

Paul Elizondo Tower 

101 W. Nueva Street 

San Antonio, Texas 78205 

Phone: (210) 335-2411 Fax: (210) 335-2436 

State Bar No. 24068556 

Attorneys for the State of Texas 

ORAL ARGUMENT WAIVED

ACCEPTED

04-14-00682-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

3/30/2015 4:19:58 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 3/30/2015 4:19:58 PM KEITH E. HOTTLE Clerk
ii

Identity of Parties and Counsel

Pursuant to TEX. R. APP. P. 38.2(a), the appellee supplements the appellant’s 

list of parties as follows: 

APPELLATE STATE’S Laura E. Durbin 

ATTORNEY Assistant Criminal District Attorney

 Paul Elizondo Tower 

 101 W. Nueva Street

 San Antonio, Texas 78205

State Bar No. 24068556

laura.durbin@bexar.org

(210) 335-2411
iii

Table of Contents

Identity of Parties and Counsel................................................................................. ii

Table of Authorities................................................................................................. iv

Statement Regarding Oral Argument ........................................................................1

Statement of the Case.................................................................................................1

Statement of the Facts................................................................................................1

Appellant’s First Point of Error: ...............................................................................3

The Appellant was egregiously harmed when the 

trial court failed to give a unanimity instruction to 

the jury. ............................................................................................................3

State’s Response to Appellant’s First Point of Error:...............................................3

The jury charge contained a proper unanimity 

instruction because the jury did not need to be 

unanimous as to the manner and means in 

Appellant committed the felony murder. .........................................................3

Argument....................................................................................................................4

Appellant’s Second Point of Error:............................................................................7

The erroneous jury charge egregiously harmed 

Garza. ..............................................................................................................7

State’s Response to Appellant’s Second Point of Error: ...........................................7

The jury charge was not erroneous and therefore 

Garza was not harmed.....................................................................................7

Prayer for Relief.........................................................................................................7

Certificate of Compliance ..........................................................................................8

Certificate of Service .................................................................................................8
iv

Table of Authorities 

Statutes

Tex. Penal Code Ann. 19.02(b)(3) (Vernon Supp. 2014)..........................................6

Rules

Tex. R. App. P. 9.4 (West 2013)................................................................................8

Tex. R. App. P. 38.2(a) ............................................................................................. ii

Cases

Almanza v. State, 

686 S.W.2d 157 (Tex. Crim. App. 1985) ...............................................................4

Arrington v. State, 

No. PD-1448-13, 2015 Tex. Crim. App. LEXIS 15 (Tex. Crim. App. Jan. 15, 

2015) .......................................................................................................................6

Cosio v. State, 

353 S.W3d 766 (Tex. Crim. App. 2011) ................................................................4

Holford v. State, 

177 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)......................5

Kitchens v. State, 

823 S.W.2d 256 (Tex. Crim. App. 1991) ...............................................................6

Magaña v. State,

351 S.W.3d 501(Tex. App.―San Antonio 2011, no pet.) .....................................4

Sanchez v. State, 

182 S.W.3d 34 (Tex. App.—San Antonio 2005, pet. granted)..............................4

White v. State, 

208 S.W.3d 467 (Tex. Crim. App. 2006) ...............................................................6
1

TO THE HONORABLE COURT OF APPEALS FOR THE FOURTH 

DISTRICT OF TEXAS:

Now comes, Nicholas LaHood, Criminal District Attorney of Bexar County, 

Texas, and files this brief for the State. 

Statement Regarding Oral Argument

The State waives oral argument. However, if the Court is inclined to grant 

argument, the State is prepared to present argument and would respectfully ask the 

Court for an opportunity to respond.

Statement of the Case

On October 21, 2013, Appellant, Benito Garza (hereinafter “Garza”) was 

indicted by a Bexar County grand jury for one count of felony murder. (CR 5-6). 

After refusing a peal offer, Garza pled not guilty and proceeded to a jury trial in the 

187th District Court on September 22, 2014. (2 RR 1, 3 RR 7, 11). On September 

25, 2014, the jury returned a guilty verdict. (5 RR 36). At the end of the 

punishment phase, the jury sentenced Garza to 60 years incarceration in the Texas 

Department of Corrections, Institutional Division. (CR 53-54, 7 RR 15).

The trial court certified Garza’s right to appeal. (CR 67-68, 7 RR 15). 

Garza filed a notice of appeal and this appeal follows.

Statement of the Facts

The facts of the case are not pertinent to the issue on appeal. However the 

State will give a brief summation of the main facts.
2

On September 21, 2012, Garza entered the home of Michel Jay Flores in the 

Indian Creek subdivision on the southwest side of San Antonio. (3 RR 91-92) 

Flores was in the bathroom at the time, when he heard his brother scream out. 

Flores exited the bathroom and found his brother laying on the floor and learned he 

had been robbed. (3 RR 92). Garza testified that he had gone to the home to 

“retrieve” property. (4 RR 152). Flores tried to chase down Garza on foot and 

then in a vehicle, but was not successful. Neighbors called the police after seeing a 

man with a gun in a silver sedan. (3 RR 26).

Police responded and quickly targeted a silver Hyundai exiting the 

subdivision. (3 RR 51). Clearly marked patrol cars with overhead lights pursued

Garza down Old Pearsall Road towards Loop 410. (3 RR 71). Garza never 

attempted to stop and cut through a gas station parking lot and then entered Loop 

410 traveling in the wrong direction at 7 P.M. that evening. (3 RR 71). The 

officers ceased their immediate chase to pursue Garza in the correct flow of traffic. 

(3 RR 74). 

Meanwhile, Roxana Tenorio and her husband, Pedro Tenorio, were traveling 

from Corpus Christi, Texas to a motorcycle rally in Bandera, Texas. (3 RR 18). 

Garza collided with the couple head on. (4 RR 22-25). Pedro Tenorio was killed 

instantly from multiple traumatic injuries, including a severed spinal cord and arm. 

(4 RR 109). Roxana Tenorio lost her leg, but survived the collision. (3 RR 19). 
3

Garza’s car collided not only with the motorcycle, but Nicole ValadezMoreno’s vehicle as well. (4 RR 22, 32). Garza fled the scene of foot with a shot 

gun and was apprehended in a nearby school bus parking lot. (3 RR 52, 4 RR 58). 

Garza testified that he did not remember the accident. 

Garza was indicted with felony murder. (CR 5). The indictment alleged that 

Garza committed robbery and evaded in a vehicle and while in commission or 

flight of those offenses committed an act clearly dangerous to human life which 

caused the death of Pedro Tenorio. (CR 5). At trial, the jury was submitted both 

the robbery and evading with a vehicle as two alternative theories of the felony 

murder charge. (CR 49, 50). The charge included a general instruction that the 

verdict must be unanimous. (CR 53).

Appellant’s First Point of Error:

The Appellant was egregiously harmed when the trial court failed to give a 

unanimity instruction to the jury.

State’s Response to Appellant’s First Point of Error:

The jury charge contained a proper unanimity instruction because the jury 

did not need to be unanimous as to the manner and means in Appellant 

committed the felony murder.

Summary of the Argument

There was no error in the jury charge. Garza was charged with felony 

murder in the course of either committed a robbery or evading in a vehicle. Two 

alternative theories of committing felony murder were submitted to the jury and 
4

the jury properly returned a general verdict of guilt. The jury was not required to 

be unanimous as to the theory, or manner and means, of committing felony murder 

as long as the evidence supported either. The evidence supported both alternative 

theories. The jury charge contained no error and therefore Garza was not harmed. 

Argument

In analyzing a jury charge, the court must first decide whether error exists. 

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985). If error exists, 

then it must be analyzed for harm. Id. If the appellant objected to the charge 

before it was given to the jury, the court will only reverse the trial court’s judgment 

if “some harm” resulted. Sanchez v. State, 182 S.W.3d 34, 61 (Tex. App.—San 

Antonio 2005, pet. granted) (citing Almanza, 686 S.W.2d at 171). However, if an 

appellant did not object to the charge, the court must find egregious harm to 

reserve the trial court’s judgment. Id.

Texas law requires that a jury reach a unanimous verdict about the specific 

crime that the defendant committed. Cosio v. State, 353 S.W3d 766, 771 (Tex. 

Crim. App. 2011). A jury must unanimously convict a defendant of a single, 

specific offense, but it need not unanimously agree as to any particular theory of 

how the defendant committed that offense. Magaña v. State, 351 S.W.3d 501, 504 

(Tex. App.―San Antonio 2011, no pet.). “In reviewing a disjunctive jury charge, 

we first determine whether the separate application paragraphs contain different 
5

criminal acts or whether they merely instruct as to different means of committing 

the single offense.” Id., quoting Holford v. State, 177 S.W.3d 454, 461 (Tex. 

App.—Houston [1st Dist.] 2005, pet. ref’d). In Magaña, the appellant had been 

convicted of felony murder and argued the trial court committed harmful error by 

allowing for a less than unanimous jury verdict. Magaña, 351 S.W.3d at 503. 

Similar to the facts here, the appellant had committed two separate felonies in the 

commission of the offense of felony murder. Id. The court rejected the appellant’s 

argument and found that the jury must be unanimous to the single offense charged, 

but it need not be unanimous as to the particular theory of how the defendant 

committed the offense. Id. at 505.

Here, the jury charge contained a general instruction that the jurors must be 

unanimous in their verdict. (CR 53). Garza’s trial counsel did not object to the 

jury charge, however, Garza now argues the jury charge allowed for a nonunanimous verdict. Specifically, the jury charge allowed for conviction by a less 

than unanimous verdict because some jurors could have convicted him of murder 

based on the robbery and others could have convicted him of murder based on the 

evading arrest with a vehicle. However, if an indictment alleges multiple felonies 

as alternative basis for felony murder liability, the felonies are not elements 

because the felonies constitute the manner and means that make up the felony 

element of felony murder. White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App. 
6

2006); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Tex. Penal 

Code Ann. 19.02(b)(3) (Vernon Supp. 2014). Moreover, “[i]t is appropriate where 

the alternate theories of committing the same offense are submitted to the jury in 

the disjunctive for the jury to return a general verdict of the evidence is sufficient 

to support a finding under any theory submitted.” Kitchens, 823 S.W.2d at 258. 

Therefore, the jury need not be unanimous as to which felony constitutes the 

manner and means as long as there is sufficient evidence to support the underlying 

felony. 

The State submitted two alternatives theories of felony murder: (1) robbery 

and (2) evading with a vehicle. The evidence supported either theory. At trial, it 

was shown Garza entered Michael Jay Flores’ home. Flores’ brother said he had 

been robbed and Garza himself admitted that he entered the home, armed, to 

retrieve property. Multiple witnesses then saw Garza flee in his car. Garza evaded 

the police attempting to conduct a stop and he entered the highway traveling the 

opposite direction at a high rate of speed. He then collided with and killed Pedro 

Tenorio. Since the evidence supported either theory of robbery or evading with a 

vehicle the charge was not erroneous and the jury returned a valid verdict. 

Garza relies on a recent Court of Criminal Appeals case to advance his 

argument. See Arrington v. State, No. PD-1448-13, 2015 Tex. Crim. App. LEXIS 

15 (Tex. Crim. App. Jan. 15, 2015). However, Arrington considered the proper 
7

harm analysis the court must conduct when there is an unobjected-to erroneous 

jury charge. Id. Arrington does not apply to Garza’s analysis because there is no 

error in the jury charge. 

Appellant’s Second Point of Error: 

The erroneous jury charge egregiously harmed Garza.

State’s Response to Appellant’s Second Point of Error: 

The jury charge was not erroneous and therefore Garza was not harmed.

As discussed in the previous point of error, the jury charge had no error and 

the State will forgo a harm analysis.

Prayer for Relief

The State prays that this Court will affirm the judgment of the trial court.

Respectfully submitted,

 NICHOLAS “NICO” LAHOOD

 Criminal District Attorney

 Bexar County, Texas

 /s/ Laura E. Durbin

 ______________________________

 LAURA E. DURBIN

 Assistant Criminal District Attorney

 Bexar County, Texas

101 West Nueva, 7

th Floor

 San Antonio, Texas 78204

 (210) 335-2411

 State Bar No. 24068556

 (On Appeal)

 Attorneys for the State
8

Certificate of Compliance

I certify, in accordance with newly revised Rule 9.4 of the Texas Rules of 

Appellate Procedure that this document contains 1,463 words.

/s/ Laura E. Durbin

_____________________________

LAURA E. DURBIN

Certificate of Service

I certify that a copy of the foregoing brief was sent to Guillermo Lara, 

Attorney for Appellant, at alexjoss@yahoo.com and cindy@campionlawfirm.com

by electronic service on the 30th day of March, 2015.

/s/ Laura E. Durbin

___________________________

LAURA E. DURBIN