State v. Victor Manuel Gallegos
08-14-00272-CR
Tex. App.Dec 9, 2015Background
- Gallegos and co-defendant Acosta were detained after bar security and a deputy found stolen property from vehicles in Gallegos’s car; the State charged Gallegos with, among other offenses, misdemeanor burglary of Cynthia Farah’s vehicle (information alleged a red 2001 Pontiac; proof showed a gray 2008 Ford Focus).
- Trial proceeded on five jointly tried offenses; the jury was instructed on parties and returned guilty verdicts on all counts, including the Farah burglary charge.
- The trial court received and recorded the jury verdicts and discharged the jury. Three weeks later at punishment, the court granted Gallegos’s renewed motion for directed verdict as to the Farah burglary (and a separate misdemeanor), entering a judgment of acquittal.
- The State appealed, arguing the trial court lacked authority to enter a judgment contrary to the jury’s verdict (a de facto JNOV is impermissible in criminal cases).
- The appellate court reviewed the trial court’s order as the functional equivalent of a new-trial/JNOV ruling and examined legal sufficiency of the evidence and whether a variance between the charged vehicle description and the proof was material.
- The court concluded the evidence was legally sufficient to support Gallegos’s conviction as a party (aid/lookout), the variance in make/model/color was immaterial, the trial court abused its discretion in entering the acquittal, and it reinstated the jury’s guilty verdict and remanded for punishment.
Issues
| Issue | State's Argument | Gallegos's Argument | Held |
|---|---|---|---|
| Whether trial court could grant a directed verdict / acquittal after receiving a guilty jury verdict | Trial court had no authority to overturn the jury; post-verdict acquittal is effectively a JNOV and unauthorized in criminal cases | Trial court properly granted acquittal due to insufficient evidence and variance in vehicle description | Trial court acted improperly; post-verdict directed verdict is the functional equivalent of a prohibited JNOV and was an abuse of discretion |
| Whether evidence was legally sufficient to support burglary conviction as a party | Evidence (eyewitness, stipulation, stolen items in Gallegos’s car, conduct as lookout) sufficed for a rational juror to find Gallegos aided Acosta | Gallegos claimed he was intoxicated, did not assist, and did not act as lookout | Evidence was legally sufficient under the appellate standard; the jury could find Gallegos aided or attempted to aid Acosta |
| Whether variance between information (vehicle description) and proof was material | Vehicle description (year/make/model/color) is not required element; variance immaterial and did not prejudice defense | Variance was material and justified acquittal for insufficient/defective charging instrument | Variance was immaterial under Gollihar; did not impair defense or expose to double jeopardy; conviction stands |
| Proper remedy when trial court effectively grants new trial/JNOV without label | State urged reversal and reinstatement of verdict; remand for punishment | Gallegos sought acquittal to avoid punishment | Appellate court treated order as new-trial-equivalent, reversed the acquittal, reinstated jury verdict, and remanded for punishment hearing |
Key Cases Cited
- State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996) (trial court may not grant JNOV/acquittal after jury verdict in criminal case)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (materiality test for variance between charging instrument and proof)
- State v. Lewallen, 927 S.W.2d 737 (Tex. App.—Fort Worth 1996) (definition and timing of directed verdict)
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (gravamen of burglary is unlawful entry without consent and requisite intent)
- Combes v. State, 286 S.W.2d 949 (Tex. Crim. App. 1956) (trial court may not enter different judgment than jury verdict)