IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 19, 2020

STATE OF TENNESSEE v. NELSON YOJENI OCHOA-PUENTES

Appeal from the Circuit Court for Dickson County

No. 22CC-2015-CR-426 David D. Wolfe, Judge

No. M2019-01627-CCA-R3-CD

The defendant, Nelson Yojeni Ochoa-Puentes, appeals his Dickson County Circuit Court

jury conviction of attempted second degree murder, arguing that the evidence was 

insufficient to support his conviction and that the trial court erred by admitting evidence of 

his immigration status. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, and TIMOTHY L. EASTER, JJ., joined.

William B. Lockert, III, District Public Defender (on appeal and at trial), and Josh 

Turnbow, Assistant District Public Defender (at trial), for the appellant, Nelson Yojeni 

Ochoa-Puentes.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant 

Attorney General; W. Ray Crouch, Jr., District Attorney General; and Carey Thompson, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Dickson County Grand Jury charged the defendant with one count of 

attempted first degree murder. Prior to the State’s case in chief at trial, the trial court found 

that the language of the indictment charged attempted second degree murder despite 

referencing the statute for first degree murder, and the trial proceeded on the charge of 

attempted second degree murder.

Cheatham County Sheriff’s Office Deputy William Zimmerlee testified that, 

on August 3, 2015, he attempted to effectuate a traffic stop on the defendant, who was 

driving 73 miles per hour in a 50 mile per hour zone in Cheatham County. The defendant 

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did not stop his vehicle, and a chase ensued, crossing into Dickson County. At some point, 

Deputy Zimmerlee saw the defendant’s “door starting to open on the vehicle, so I exit my 

vehicle.” He conducted a “felony stop,” exiting his cruiser with his “weapon out, ready for 

anything that’s going to happen.” As Deputy Zimmerlee neared the front of his vehicle, 

he “heard a pop. Sounded like gunfire. And I noticed that [the defendant] had a pistol” in 

his left hand. “That’s when I returned fire on him.” He stated that the events occurred 

“[v]ery quickly,” with the shooting occurring approximately 20 minutes after the chase 

began. The events were recorded by Deputy Zimmerlee’s dashboard camera, and the jury 

viewed the video recording, which showed the defendant exiting his vehicle, holding a gun, 

and briefly facing Deputy Zimmerlee’s vehicle before beginning to run away.

Deputy Zimmerlee stated that he initially thought that he had fired “three or 

four rounds” at the defendant, but he later learned that he had fired eight rounds, hitting the 

defendant twice, once in his left hand and once in the upper leg. He explained that the 

defendant had fired first, “as soon as he got out of the vehicle,” with the bullet hitting “the 

ground toward the angle where I’m standing.” Deputy Zimmerlee believed that the 

defendant was attempting to shoot him and returned fire as the defendant was beginning to 

run away, causing the defendant to fall to the ground. Deputy Zimmerlee approached the 

defendant and kicked away his gun—“a Ruger .22, Mark Series .22 pistol.” He also

“[f]ound a knife laying a couple of feet from” the defendant, but he had not seen the knife

before finding it on the ground. He did not handcuff the defendant because “[w]e had 

enough injuries” and he was “no longer a threat.” Other officers responded within 

approximately five minutes.

During cross-examination, Deputy Zimmerlee testified that he first saw the 

defendant’s gun when he heard the gunshot. When the defendant exited his vehicle, he 

walked toward Deputy Zimmerlee, and Deputy Zimmerlee “back[ed] up beside my vehicle 

for cover.” The defendant fired his first shot in Deputy Zimmerlee’s direction. After 

Deputy Zimmerlee shot the defendant, he checked for additional weapons, but he did not 

perform a pat down search at that time.

On redirect examination, Deputy Zimmerlee stated that he did not know why 

the defendant fled the attempted traffic stop. He also said that the defendant appeared to 

be impaired while he was driving, and he smelled of alcohol. Deputy Zimmerlee later 

learned that the defendant’s driver’s license had been revoked. He stated that he had no 

knowledge of the defendant’s immigration status.

Tennessee Bureau of Investigation (“TBI”) Agent Haidy Grigsby responded 

to the hospital, where he interviewed the defendant, spoke with hospital staff, and collected

evidence. He took a statement from the defendant in Spanish and translated it into English 

and spoke with the defendant on another occasion with a doctor present to determine if the 
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defendant knew where he was. Agent Grigsby also provided Spanish interpretation for an 

interview conducted by another officer. Agent Grigsby did not ask the defendant about his 

immigration status.

In the defendant’s statement to Agent Grigsby, he stated that, on the day of 

the shooting, he went to his friend’s home at 4:00 p.m., where he played poker and drank 

Bud Lite. At 11:00 p.m., he left to go fishing and a police officer began following him. 

The defendant did not stop for the officer because he was scared because his vehicle 

registration was expired and because he was paying for the vehicle in someone else’s name. 

The defendant stated that he had a gun with him for security because he was fishing at 

night. He also had two knives with him to process any fish that he caught. The defendant 

said that he “‘started to drive faster because I was scared. I wanted to go to escape. I was 

going to try to make it to the river and run on foot.’” When the defendant arrived at the 

river, he exited his vehicle and took his gun with him because he “‘didn’t want to be in the 

for[]est without a gun.’” The defendant stated that he did not fire his gun, and before he 

had a chance to run, the officer shot him, and “‘the gun fell out of my hand when I fell.’” 

The defendant also took a knife with him “‘so I could survive’” in the forest. The defendant 

denied that he was “‘looking at the police officer,’” stating that he was attempting to run. 

The defendant stated that he was “‘100 percent sure that I didn’t shoot.’” The defendant 

explained that he had fired his gun in that area on previous occasions and that any shell 

casings from his gun found at the scene were there before this incident.

TBI Agent Joey Boyd testified that he processed the crime scene in this case 

and interviewed the defendant. At the scene, he collected eight .40 caliber cartridge cases 

and a .40 caliber Glock. He also collected a .22 caliber Ruger with a bullet in the chamber 

and others in the magazine and .22 caliber shell casings at the scene. He noticed that 

“[t]here were quite a number of them I believe that showed some weathering and 

environmental effects,” explaining that some of the casings had “rust or corrosion on the 

outside of them” and some “were pressed down into the dirt” and “covered with leaves.” 

In addition to the guns and shell casings, he collected a switchblade knife.

During cross-examination, Agent Boyd identified the defendant’s hunting 

and fishing license. In the defendant’s vehicle, he found several fishing rods and other 

fishing gear.

On redirect examination, Agent Boyd stated that all five of the .22 caliber 

shell casings were fired from the defendant’s gun and three of the five “appeared to have 

extended weather exposure.” The eight .40 caliber cartridges were all fired from Deputy 

Zimmerlee’s gun. On further cross-examination, Agent Boyd stated that five bullets were 

in the magazine of the defendant’s gun in addition to one in the chamber.
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During further direct examination, Agent Boyd explained that, based on the 

partial firing pin impression on the bullet collected from the chamber of the defendant’s 

gun, he determined that the bullet had been chambered immediately after the gun was fired. 

On further recross-examination, he stated that the defendant’s gun, a semi-automatic, 

automatically chambered the bullet.

By stipulation as to admissibility, the State presented a prior deportation 

order against the defendant.

The State rested. After a Momon colloquy, the defendant elected not to 

testify but called one witness.

Criminal Investigator Christy Dowling testified that she met with the 

defendant and observed him writing, signing his signature, and doing other tasks with his 

hands. Based on these observations, she stated that the defendant used his “right dominant 

hand” to perform those tasks. On cross-examination, she clarified that she did not know 

whether the defendant’s right hand was his dominant one.

Upon this evidence, the jury found the defendant guilty of attempted second 

degree murder, and, after a sentencing hearing, the trial court imposed a sentence of eight 

years’ incarceration. Following a timely but unsuccessful motion for a new trial, the 

defendant filed a notice of appeal. In this appeal, the defendant argues that the evidence 

at trial was insufficient to support his conviction and that the trial court erred by admitting 

evidence of his immigration status.

I. Sufficiency of the Evidence

The defendant contends that the State failed to present sufficient evidence to 

establish that he acted knowingly or intentionally. The State argues that the evidence is 

sufficient.

Sufficient evidence exists to support a conviction if, after considering the 

evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the 

evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331 

S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of 

the witnesses, the weight and value of the evidence, and the factual issues raised by the 

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court 

must afford the State the strongest legitimate view of the evidence contained in the record 
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as well as all reasonable and legitimate inferences which may be drawn from the evidence. 

Id.

As relevant here, “[s]econd degree murder is . . . [a] knowing killing of 

another.” T.C.A. § 39-13-210. Criminal attempt is committed when a person, “acting with 

the kind of culpability otherwise required for the offense,” does one of the following:

(1) Intentionally engages in action or causes a result that would 

constitute an offense, if the circumstances surrounding the 

conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the 

offense, and believes the conduct will cause the result without 

further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a 

result that would constitute the offense, under the 

circumstances surrounding the conduct as the person believes 

them to be, and the conduct constitutes a substantial step 

toward the commission of the offense.

Id. § 39-12-101(a). A person acts knowingly with respect to a result of the person’s conduct 

when the person is aware that the conduct is reasonably certain to cause the result. Id. § 

39-11-302(b).

Here, taken in the light most favorable to the State, the evidence adduced at 

trial established that Deputy Zimmerlee spotted the defendant speeding and attempted to 

effectuate a traffic stop. The defendant failed to stop and led Deputy Zimmerlee on a chase 

for approximately 20 minutes. When the defendant stopped his car, he exited his vehicle 

while holding a gun in his left hand and fired at least one shot in the direction of Deputy 

Zimmerlee—who was outside of his vehicle at that point. Deputy Zimmerlee returned fire 

as the defendant was beginning to flee the scene. This evidence is sufficient for a rational 

trier of fact to find beyond a reasonable doubt that the defendant knowingly attempted to 

kill Deputy Zimmerlee.

II. Evidence of Immigration Status

Next, the defendant contends that the trial court erred by admitting evidence 

of his immigration status. The State argues that the defendant waived this issue by failing 
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to argue the issue in his brief. Alternatively, the State argues that the trial court did not err.

Here, because the defendant failed to argue this issue in his appellate brief, 

this issue is waived. See Tenn. R. App. P. 27(a)(7) (“The brief of the appellant shall contain

. . . [a]n argument . . . setting forth . . . the contentions of the appellant with respect to the 

issues presented, and the reasons therefor, including the reasons why the contentions 

require appellate relief, with citations to the authorities and appropriate references to the 

record . . . .”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, 

citation to authorities, or appropriate references to the record will be treated as waived in 

this court.”).

Accordingly, the judgment of the trial court is affirmed.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE