Samuel Sanchez Moreno v. the State of Texas

Opinion filed June 13, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00235-CR
__________

SAMUEL SANCHEZ MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR56373

MEMORANDUM OPINION
The jury found Appellant, Samuel Sanchez Moreno, guilty of murder, a first-
degree felony offense. See TEX. PENAL CODE ANN. § 19.02(b), (c) (West 2019). The
jury assessed Appellant’s punishment at confinement for a term of sixty years in the
Institutional Division of the Texas Department of Criminal Justice. The jury
additionally imposed a fine of $5,000. In a single issue, Appellant challenges the
sufficiency of the evidence supporting the jury’s guilty verdict. We affirm.
Background Facts
Detective Jennie Alonzo with the Midland Police Department responded to a
call on November 9, 2020, between 6:30 p.m. and 7:00 p.m. Justin Zatovich1 was
found lying across the threshold of his residence, and there was a large amount of
blood on the porch, the steps, and on the tile below the steps. Detective Alonzo
testified that Zatovich had likely been deceased for more than twelve hours by the
time she arrived. Detective Alonzo was able to observe that Zatovich had scratches
on his face, “puncture wounds all over his body,” bruising on his arms, and a gunshot
wound.
Detective Alonzo testified that there were security cameras located at the front
and back of Zatovich’s residence. Based on her training and experience, Detective
Alonzo knew that the cameras’ video feeds would be uploaded to Zatovich’s cell
phone or to a “server.” Officers were able to find and gain access to the camera
system’s server inside the home. Upon reviewing the video footage, officers were
able to find video recordings of Zatovich’s death.
Four different videos from Zatovich’s security cameras were presented to the
jury, and Detective Alonzo testified about what could be seen in each video. The
time stamp on the videos show that Zatovich was murdered in the early morning
hours of November 9, 2020.
In the first video, two men walk onto Zatovich’s front porch. Detective
Alonzo described the first man as wearing a “Bandidos soft cut” shirt, indicating that
he is a member of the Bandidos motorcycle gang. Detective Alonzo described the
second man as wearing a Bandidos “baseball cap but turned backwards.” The man
with the backwards baseball cap was also holding a firearm. The two men are then
seen walking to the back of the residence.

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Officers were able to identify Zatovich after finding his identification card in the residence.
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In the second video, Zatovich came out of the residence through the back door,
and the man with the firearm struck Zatovich. A struggle ensued in the backyard,
and Zatovich picked up a piece of wood from the ground and began swinging it. A
third man walked up to the struggle and began “striking [Zatovich,] stabbing him
with something.” Zatovich was on his back while the third man was “on top of [him]
subduing him while he’s stabbing him.” The third man had one elbow on the ground,
and the first two men were “assisting” the third man as he stabbed Zatovich.
Zatovich was shot outside of the camera’s view.
A third video that better captured the man that stabbed Zatovich was also
admitted into evidence. In a fourth video, the first and third man are seen returning
to Zatovich’s home to “wipe off fingerprints—well, wipe something off of the
doors.”
After Detective Alonzo watched the video footage of Zatovich’s murder, she
began working to identify the three men seen in the video. Detective Alonzo asked
Midland Police Department’s Gang Unit for help identifying the two men in
Bandidos clothing. The gang unit identified the man seen wearing the Bandidos soft
cut as John Sepulveda, known as the president of the Bandidos in Midland. The
individual seen wearing the backwards Bandido cap and holding a firearm was
identified as Brad Beck, a “hang-around” with motorcycle gangs.
Detective Alonzo began searching for the man who stabbed Zatovich by
identifying the owner of the home that Zatovich lived in. The Midland County
Appraisal District listed Appellant as the registered owner of the home. While
nothing indicated that Appellant was a member of the Bandidos, Detective Alonzo
learned that he and Sepulveda are related. Detective Alonzo compared photographs
of Appellant with the video footage of the man that stabbed Zatovich and “thought
they were a match.” Appellant was arrested.

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The police department photographed Appellant after his arrest. Sergeant
Rosemary Sharp with the Midland Police Crimes Against Persons Unit testified that
Appellant had “a couple of scratch marks” on his neck, cuts on both of his hands, an
abrasion on his left arm that had started to scab over, and a “small injury” on his
lower leg that looked like it was healing. These photographs were admitted into
evidence alongside video screenshots of the man who stabbed Zatovich. Detective
Alonzo testified that Appellant’s hairstyle, hairline, ear, facial hair, “even the way
he wears his sleeves are similar” to the man that stabbed Zatovich. Detective Alonzo
noted that both Appellant and the man seen in the video had a “mullet” hairstyle.
Detective Alonzo interviewed Appellant after his arrest. Detective Alonzo
asked about Appellant’s family; Appellant did not mention that Sepulveda was a
cousin who lived in Midland. Detective Alonzo testified that Zatovich had been
trying to purchase the home he was living in “as a rent-to-own property” from
Appellant’s mother before she died in 2019, but the contract to sell the property to
Zatovich was never signed. Appellant told Detective Alonzo that he did not want
Zatovich living at the property but could not afford an attorney to evict him.
Appellant had refused to pay taxes on the property in 2019. Detective Alonzo also
testified that Appellant was unable to “pinpoint” in his interview the last time he saw
Zatovich—while Appellant first said he had last seen Zatovich twenty years ago, he
later said he had seen Zatovich “a couple years” before his mother’s death.
Dr. Tasha Greenberg, the deputy chief medical examiner for the Tarrant
County Medical Examiner’s Office, testified that Zatovich had four gunshot wounds
and “superficial, penetrating injuries, or sharp force injuries.” Dr. Greenberg stated
that Zatovich’s cause of death was “the gunshot wounds. In particular, the gunshot
wound on the right side of the chest, the [sic] injuring the lung and the liver.”
Dr. Greenberg confirmed that the sharp force injuries did not penetrate into
Zatovich’s vital organs. When Appellant’s trial counsel asked Dr. Greenberg if the
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sharp force injuries were a cause of Zatovich’s death, Dr. Greenberg responded that
they were not an “immediate[]” cause of death due to his gunshot wounds, one of
which was fatal. However, Dr. Greenberg noted that the sharp force injuries “could
lead to bleeding. And when you have enough bleeding in aggregate, that certainly
can either cause or contribute to death in certain cases.”
Benny Benavides, Appellant’s friend, testified in his defense. When asked if
Appellant was easily angered, Benavides testified that “you can’t get [Appellant]
mad.” Benavides testified that Appellant would have been physically unable to stab
Zatovich as the man in the video was seen doing because Appellant had “bad knees”
and “wouldn’t have got back up.” Benavides testified that the man seen stabbing
Zatovich in the video was not Appellant and that he did not see the physical
similarities between Appellant and the man in the video that Detective Alonzo
pointed out during her testimony.
Neither the firearm used to shoot Zatovich nor the instrument used to stab him
were recovered. A stain on Zatovich’s shirt was tested for touch DNA, but
Appellant, Beck, and Sepulveda were all excluded as contributors.
Analysis
In Appellant’s sole issue, he contends that the evidence at trial was insufficient
to support the jury’s guilty verdict for murder because “there was plainly reasonable
doubt inherent in the investigation as well as at trial, especially considering the
codefendant, who the State believed to be the actual shooter, did not testify at
Appellant’s trial.” We note at the outset that the State made no allegation in either
its opening or closing statement during the guilt/innocence phase of trial about who
it believed shot Zatovich, and instead noted that the jury did not have to be
unanimous in who they determined the shooter was.
We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
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standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including evidence that may have been improperly admitted. Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the sole judge
of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks,
323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at
778. When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the verdict, and we defer to that determination.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
point directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Because evidence must be considered cumulatively, appellate courts are not
permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the
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evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead,
appellate courts must consider the cumulative force of all the evidence. Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
To determine whether the State has met its burden under Jackson to prove a
defendant’s guilt beyond a reasonable doubt, we compare the elements of the crime
as defined by the hypothetically correct jury charge to the evidence adduced at trial.
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Id. The law as
authorized by the indictment means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging
instrument. See id. When, as here, the trial court’s charge authorized the jury to
convict the defendant on more than one theory, the verdict of guilt will be upheld if
the evidence is sufficient on any theory authorized by the charge. See Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State, 847
S.W.2d 555, 558 (Tex. Crim. App. 1992)).
The indictment charged Appellant with Zatovich’s murder under two theories:
(1) by intentionally or knowingly causing Zatovich’s death by stabbing him with an
unknown object or by shooting him with a firearm; and (2) with the intent to cause
serious bodily injury to Zatovich, committing an act clearly dangerous to human life
by stabbing Zatovich with an unknown object or by shooting him with a firearm,
causing his death. See PENAL § 19.02(b)(1), (2). These two methods of committing
murder are not separate offenses but, rather, are alternative methods of committing
the same offense. See Walter v. State, 581 S.W.3d 957, 968 (Tex. App.—Eastland
2019, pet. ref’d).
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Here, the trial court’s charge allowed Appellant to be convicted either as a
primary actor or as a party to Brad Beck or John Sepulveda. Appellant asserts that
the trial court’s charge “unnecessarily broaden[ed] the possible basis for a
conviction” because the indictment charging Appellant with murder did not charge
Appellant under the law of parties. Appellant’s contention is incorrect. Generally,
the trial court may instruct the jury on the law of parties if “there is sufficient
evidence to support a jury verdict that the defendant is criminally responsible under
the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999); see
Walter, 581 S.W.3d at 975. “Regardless of whether it is pled in the charging
instrument, liability as a party is an available legal theory if it is supported by the
evidence.” In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013);
see Walter, 581 S.W.3d at 975.
Under Section 7.01 of the Penal Code, “[a] person is criminally responsible
as a party to an offense if the offense is committed by his own conduct, by the
conduct of another for which he is criminally responsible, or by both.” See
PENAL § 7.01(a) (West 2021); see Adames v. State, 353 S.W.3d 854, 862 (Tex.
Crim. App. 2011). The trial court’s charge permitted the jury to find that Appellant
was criminally responsible for the conduct of Beck or Sepulveda under
Section 7.02(a)(2). See PENAL § 7.02(a)(2) (West Supp. 2023). This statute
provides that “[a] person is criminally responsible for an offense committed by the
conduct of another if . . . acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.” Id.; see Adames, 353 S.W.3d at 862. “Each party to an
offense may be charged with commission of the offense.” See PENAL § 7.01(b).
Accordingly, the trial court’s charge did not unnecessarily broaden the possible basis
for a conviction, and the jury could have found Appellant guilty as either a primary
actor or a party to Zatovich’s murder. See PENAL §§ 7.01(a), 7.02(a)(2).
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Appellant directs his sufficiency challenge to multiple aspects of the evidence
in this case. Specifically, Appellant asserts that “[n]o identification of Appellant as
being present at the time of the offense was made by any person,” the firearm used
to shoot Zatovich was never located, there was no evidence that Appellant possessed
a firearm, there was no evidence that Appellant had any connection to his two
codefendants, and there was no DNA evidence connecting Appellant to the crime.
When conducting an evidentiary review, “[w]e do not review the sufficiency
of the police investigation; we review the evidence presented at trial.” Quinonez v.
State, No. 06-07-00016-CR, 2007 WL 2608833, at *4 (Tex. App.—Texarkana Sept.
12, 2007, pet. ref’d) (mem. op., not designated for publication); see Espinoza v.
State, No. 11-19-00232-CR, 2022 WL 3903774, at *5 (Tex. App.—Eastland
Aug. 31, 2022, pet. ref’d) (mem. op., not designated for publication). “[W]e do not
consider what evidence the State could have or even should have
presented.” Quinonez, 2007 WL 2608833 at *4. We also do not speculate about the
evidence that the State did not present. McLemore v. State, No. 05-15-00160-CR,
2015 WL 9591398, at *3 (Tex. App.—Dallas Dec. 31, 2015, no pet.) (mem. op., not
designated for publication) (citing Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim.
App. 2012)); see Espinoza, 2022 WL 3903774 at *5. Further, we do not usurp the
role of the factfinder by factoring into our sufficiency analysis an alternative
hypothesis inconsistent with the guilt of the accused. Jenkins v. State, 493 S.W.3d
583, 601 (Tex. Crim. App. 2016).
There is ample evidence that supports Appellant’s conviction. Appellant
admitted in an interview that he had an ongoing property dispute with Zatovich.
Detective Alonzo testified that she compared photographs of Appellant to the video
and determined that Appellant was the man that stabbed Zatovich. Accordingly,
Appellant’s contention that no one identified Appellant as being present at the time
of the offense is incorrect. Detective Alonzo also testified that Appellant and
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Sepulveda were related to one another. Thus, Appellant’s contention that there was
no evidence that Appellant had any connection to his two codefendants is also
incorrect. Finally, the jury viewed the same videos and the same photographs of
Appellant as Detective Alonzo and could have reasonably reached the same
conclusion that Appellant was the man depicted in the video. Jackson, 443 U.S. at
319; Clayton, 235 S.W.3d at 778.
Appellant also asserts that (1) there was no evidence that Appellant acted as a
party with his codefendants, and (2) even if he was present at Zatovich’s murder, his
codefendants’ membership in a “violent gang” and possession of a firearm combined
with “Appellant’s physical handicaps” indicate that his presence may not have been
voluntary. However, video footage showing the third man’s active participation in
the murder of Zatovich by repeatedly stabbing him while his codefendant holds him
down would allow the jury to reasonably conclude that Appellant was voluntarily
participating in Zatovich’s murder—even if Appellant was not seen holding a
firearm or shooting Zatovich himself. Accordingly, the jury could have reasonably
concluded that Appellant acted with the intent to promote or assist the murder of
Zatovich by soliciting, encouraging, directing, aiding, or attempting to aid the
shooter in committing the murder. See PENAL § 7.02(a)(2); Adames, 353 S.W.3d at
862.
Reviewing courts are required to consider the combined force of all of the
evidence. Merritt, 368 S.W.3d at 526 (citing Smith v. State, 332 S.W.3d 425, 442
(Tex. Crim. App. 2011)). “We may not re-weigh the evidence or substitute our
judgment for that of the factfinder.” Zuniga v. State, 551 S.W.3d 729, 732 (Tex.
Crim. App. 2018) (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007)). Viewed in the light most favorable to the verdict, we conclude that there is
sufficient evidence from which a rational trier of fact could have concluded beyond
a reasonable doubt that Appellant committed the murder of Zatovich as either a
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primary actor or as a party. See Jackson, 443 U.S. at 319. We overrule Appellant’s
sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

June 13, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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