Gallegos, Victor Manuel
PD-1638-15
| Tex. | Dec 18, 2015Background
- Defendant Victor Manuel Gallegos was tried with co-defendant Julio Acosta for multiple offenses allegedly committed June 26, 2011; this appeal concerns burglary of a vehicle (cause no. 20120C00942).
- Evidence: Acosta was observed breaking into cars in a bar parking lot while Gallegos allegedly acted as a lookout; stolen items from Cynthia Farah’s car were later found in Gallegos’s car; Gallegos stipulated Farah’s vehicle was broken into and property taken.
- Trial court submitted the cases to the jury on charges including burglary of Farah’s vehicle; the jury returned guilty verdicts for Gallegos on all counts and the verdicts were received and the jury discharged.
- Three weeks later, at punishment, the trial court granted Gallegos’s renewed motion for directed verdict and entered judgments of acquittal for two counts (including the Farah burglary), despite the earlier guilty jury verdict.
- The State appealed, arguing the trial court lacked authority to enter a judgment contrary to the jury verdict; the Court of Appeals treated the post-verdict directed verdict as the functional equivalent of granting a new trial (JNOV) and reviewed for abuse of discretion.
Issues
| Issue | State's Argument | Gallegos' Argument | Held |
|---|---|---|---|
| Whether a trial court may grant a directed verdict / enter an acquittal after receiving a guilty jury verdict | Trial court lacked authority to grant a JNOV or directed verdict after receiving the jury verdict; judgment must reflect jury’s verdict | Trial court acted within discretion to set aside verdict for insufficient evidence (effectively a new-trial/JNOV) | Court: Trial court had no authority to enter a verdict non obstante veredicto; action was improper (sustained State’s issue) |
| Whether the evidence was legally sufficient to support the jury’s finding that Gallegos was a party to burglary (aiding/abetting) | Evidence (security testimony, Acosta’s admissions, items found in Gallegos’s car, Gallegos’s stipulation) was sufficient to allow a rational trier of fact to find Gallegos guilty as a party | Gallegos claimed he did not assist Acosta and was merely present; argued insufficiency | Court: Evidence was legally sufficient to support the jury’s verdict that Gallegos aided/accompliced Acosta |
| Whether variance between the information (describing vehicle as red 2001 Pontiac Grand Am) and proof (gray 2008 Ford Focus) was material and required acquittal | Variance as to make/model/color is immaterial because law requires alleging vehicle as personal property but not year/make/model; did not prejudice defense | Gallegos argued the description was not mere surplusage and impaired his defense | Court: Variance was immaterial under Gollihar; did not impair defense or expose to double jeopardy; conviction may stand |
| Remedy: appropriate disposition after trial court’s improper post-verdict acquittal | Reverse trial court’s acquittal, reinstate jury verdict, remand for punishment hearing | Requested dismissal or affirm acquittal | Court: Reversed order granting directed verdict and judgment of acquittal, reinstated jury’s guilty verdict, remanded for punishment hearing |
Key Cases Cited
- State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996) (trial court may not enter judgment non obstante veredicto in criminal case)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (material variance test for charging instrument vs. proof)
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (gravamen of burglary is unlawful entry without consent and requisite mental state)
- State v. Lewallen, 927 S.W.2d 737 (Tex. App.—Fort Worth 1996) (definition/context for directed verdict)
- Combes v. State, 286 S.W.2d 949 (Tex. Crim. App. 1956) (trial court may not receive verdict and then enter a different judgment)