Jacob R. Groening v. The State of Texas

<center><h2><font color="red"> Eastland, TX - Criminal defense attorney represented Jacob R. Groening with a <i>Capital Murder charge.</h2></font></b></i></center><br>
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Appellant is married to Tiffany Groening, and they have four children<br>
together. Appellant had no criminal history of violence against Tiffany. On March<br>
4, 2017, Tiffany and Appellant hosted a barbecue at their house with Tiffany's<br>
mother, Patricia Marquez, and grandmother, Nellie Marquez. Appellant testified<br>
that he had a good relationship with Patricia, in general, and that he and she got along<br>
fine during the barbecue. Tiffany and Appellant both testified that Appellant drank<br>
a twelve-pack of beer during the barbecue.<br>
Afterwards, the four went to Perika's, a bar and restaurant located<br>
approximately three miles away, for a drink. Tiffany drove Appellant in their<br>
pickup, and Patricia and Nellie followed in Patricia's car. Appellant testified that,<br>
while at Perika's, Tiffany drank one tequila shot and that he drank at least eight<br>
tequila shots. At some point during this time, Patricia and Nellie left, but Tiffany<br>
and Appellant remained at Perika's.<br>
Tiffany and Appellant got into an argument when Tiffany turned down<br>
Appellant's offer to have another drink. Appellant began cursing at Tiffany and<br>
calling her names. Tiffany walked out to the back patio of Perika's to smoke a<br>
cigarette. Appellant followed her and told her that, if she left him there that night,<br>
he would kill her.<br>
Appellant was standing in the parking lot just off the patio of Perika's yelling<br>
at Tiffany when Mike Diaz, the owner of Perika's, approached Appellant and barred<br>
him from returning to the establishment. Appellant angrily told Diaz that Diaz<br>
would be a dead man by the next day. Appellant repeated this threat several times.<br>
Diaz asked Tiffany if she wanted to leave with Appellant; she replied that she did<br>
not. Appellant ran to the pickup in which he and Tiffany had arrived, but Tiffany <br>
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had the keys and she refused to unlock the pickup. Appellant eventually left the area<br>
on foot. Tiffany paid their tab and called Patricia to come pick her up. Tiffany<br>
testified that she was shaken up from the incident and that she did not want to drive<br>
herself home. Patricia arrived at Perika's driving her small white sedan, and Patricia<br>
drove Tiffany home to Tiffany and Appellant's house.<br>
After leaving Perika's on foot, Appellant walked to the nearby Stripes gas<br>
station and asked Joshua Hansen, who was parked in the Stripes parking lot, for a<br>
ride home. Appellant and Hansen had never met before, but Hansen agreed. During<br>
the drive, Appellant told Hansen that Appellant had had a fight with his wife, that<br>
his wife could "kiss [his] ass,” and that there was someone back at the bar that<br>
Appellant wanted to hurt. Hansen suggested that Appellant should go home and<br>
sleep it off and that Appellant could go to jail if he hurt someone. Appellant said<br>
that he had been to jail before and was not scared to go back.<br>
Hansen dropped Appellant off on the roadside near Appellant's home.<br>
Hansen offered to drive Appellant all the way to his driveway, but Appellant refused,<br>
saying that he did not want Hansen to get "any more involved in this.” As Hansen<br>
was pulling away, he noticed a white suburban parked in the driveway of Appellant's<br>
house.<br>
Appellant testified that, from the time Hansen dropped him off until the next<br>
day, he was completely blacked out and remembers nothing from the rest of the<br>
night. Appellant testified that, after Hansen dropped him off, he blacked out and<br>
threw up and that he woke up on the ground somewhere covered in grass burs.<br>
Appellant repeatedly testified that he did not shoot anyone and that he did not recall<br>
any of the night's events after this time.<br>
Hansen returned to the Stripes, but he testified that soon afterwards a "really<br>
bad feeling hit [him] and [he] thought just something [was] not right about this night,<br>
about what's going on here.” Leaving the Stripes, Hansen began driving back in the <br>
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direction of Appellant's house. As he neared the house, Hansen saw a white<br>
suburban driving past him in the direction of town, moving extremely fast.<br>
According to testimony by Gaines County deputies, the distance between Perika's<br>
and Appellant's house could be traveled in three or four minutes if someone were<br>
driving at a high rate of speed.<br>
Hansen testified that, after seeing the suburban, he became even more curious,<br>
and he pulled onto a county road off the highway and parked where he had a view<br>
of Appellant's house. He then noticed that there was a little white sedan parked at<br>
the house.<br>
About twenty to twenty-five minutes after Appellant had left Perika's on foot,<br>
Diaz, his wife Anna Diaz, and a patron named Ernest Shelton were sitting out on the<br>
back patio at Perika's when they saw a white suburban pull up in the parking lot.<br>
Appellant exited the vehicle yelling Diaz's name.<br>
Shelton was the first to reach Appellant; he was running at Appellant with his<br>
hands outstretched, and Diaz was a step or two behind Shelton. Appellant shot<br>
Shelton in the head. Appellant turned the gun on Diaz, and Diaz hit Appellant's arm<br>
or hand. Appellant then fired a shot, hitting Diaz in the groin. Appellant fired<br>
another shot, hitting Diaz in the back. Appellant got on top of Diaz and tried to put<br>
the gun up against Diaz's head. After a brief struggle, Appellant got off Diaz,<br>
returned to the white suburban, and drove off.<br>
Anna Diaz had called 9-1-1 when Appellant first arrived back at Perika's. The<br>
call went to the Gaines County Sheriff's Office, where dispatcher Crystal Estrada<br>
heard each gunshot over the phone. The shots were recorded on the 9-1-1 call, which<br>
showed that the shots occurred at 11:41 p.m., within seconds of each other. Gaines<br>
County deputies arrived at Perika's at 11:42 p.m., but Appellant had left the scene.<br>
Gaines County Sheriff's Deputy Corey Furlow testified that he was still at the <br>
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murder scene at Perika's when, at 11:53 p.m. or 11:54 p.m., a call came over police<br>
communications that a second shooting had occurred nearby.<br>
When Tiffany and Patricia arrived back at Tiffany and Appellant's house from<br>
Perika's, they observed that Tiffany's white suburban was gone. Tiffany called<br>
Appellant to tell him that the suburban was gone. Appellant called Tiffany various<br>
names during the call. Tiffany testified that she started to get a "creepy feeling” and<br>
asked Patricia to pull the car out of the driveway and park on the side of the road<br>
near the mailboxes. Tiffany then saw Appellant arrive at the house in the white<br>
suburban and park in the garage. She saw Appellant get out and walk around for a<br>
little while. He then called her again, and as she spoke with him on the phone, he<br>
continued to call her names. Then, Appellant got back into the suburban, backed out<br>
of the drive extremely fast, and pulled up next to Patricia's car.<br>
Appellant exited the suburban and immediately began shooting into Patricia's<br>
car at Tiffany and Patricia. At trial, Tiffany testified that she was able to identify the<br>
gun Appellant used as an M&P .22 that Tiffany had purchased at Cabela's in<br>
Lubbock.<br>
Tiffany testified that Appellant fired shots into the car until his gun was empty.<br>
Tiffany looked over at Patricia and saw that Patricia's head was hanging down on<br>
her chest and blood was dripping off Patricia's nose. Appellant had shot Patricia in<br>
the head and in the neck. Tiffany yelled at Appellant that he had "just killed<br>
somebody,” to which he replied that he did not care. While Appellant was reloading<br>
his gun, Tiffany climbed out of the sedan. She then ran to the white suburban, got<br>
in it, and drove off.<br>
Hansen, who had witnessed the shooting from his parked car, called 9-1-1 at<br>
11:54 p.m. Hansen testified that approximately ten minutes had passed between the<br>
time he first saw the suburban driving back to town to the time he saw the suburban<br>
return to the house and pull up next to the white sedan.<br>
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At 11:54 p.m., Tiffany arrived at the Gaines County Sheriff's Office in the<br>
white suburban. She was covered in blood. Tiffany told deputies that her husband<br>
had just shot her mother. Tiffany had also been shot and was bleeding; the tip of her<br>
finger had been shot off. Tiffany was transported to the hospital and survived her<br>
wounds.<br>
Gaines County sheriff's deputies went to Tiffany and Appellant's house,<br>
where they discovered Patricia. Patricia was transported to the hospital, where<br>
doctors eventually pronounced her dead from her gunshot wounds. At Perika's,<br>
Shelton and Diaz were also transported to the hospital, where Shelton was eventually<br>
pronounced dead. Diaz survived and eventually recovered from his wounds. Gaines<br>
County deputies apprehended Appellant the next morning.<br>
Analysis<br>
We review a challenge to the sufficiency of the evidence, regardless of<br>
whether it is denominated as a legal or factual sufficiency challenge, under the<br>
standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979).  Brooks v. State, 323<br>
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89<br>
(Tex. App.—Eastland 2010, pet. ref'd).  Under the Jackson standard, we review all<br>
of the evidence in the light most favorable to the verdict and determine whether any<br>
rational trier of fact could have found the essential elements of the offense beyond a<br>
reasonable doubt.  Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638<br>
(Tex. Crim. App. 2010).  Circumstantial evidence is as probative as direct evidence<br>
in establishing the guilt of an actor, and circumstantial evidence alone can be<br>
sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.<br>
2007).<br>
When conducting a sufficiency review, we consider all of the evidence<br>
admitted at trial and defer to the factfinder's role as the sole judge of the witnesses'<br>
credibility and the weight their testimony is to be afforded.  Winfrey v. State, 393 <br>
7<br>
S.W.3d 763, 767–68 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 899; Clayton v.<br>
State, 235 S.W.3d 722, 778 (Tex. Crim. App. 2007).  This standard accounts for the<br>
factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to<br>
draw reasonable inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at<br>
319; Clayton, 235 S.W.3d at 778.<br>
Section 19.03(a)(7)(A) provides that a person commits capital murder if he<br>
intentionally or knowingly causes the death of more than one person during the same<br>
criminal transaction. PENAL § 19.03(a)(7)(A). The legislature did not define the<br>
term "same criminal transaction” as used in the capital murder statute. Jackson v.<br>
State, 17 S.W.3d 664, 669 (Tex. Crim. App. 2000); Coble v. State, 871 S.W.2d 192,<br>
197 (Tex. Crim. App. 1993). The Court of Criminal Appeals has interpreted the<br>
phrase to mean "a continuous and uninterrupted chain of conduct occurring over a<br>
very short period of time . . . in a rapid sequence of unbroken events.” Jackson, 17<br>
S.W.3d at 669 (alteration in original) (quoting Rios v. State, 846 S.W.2d 310, 311–<br>
12 (Tex. Crim. App. 1992); Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App.<br>
1992)); accord Heiselbetz v. State, 906 S.W.2d 500, 506 (Tex. Crim. App. 1995).<br>
When reviewing the sufficiency of the evidence to show "same criminal<br>
transaction,” we look to see whether "the jury could rationally conclude appellant<br>
engaged in a continuous and uninterrupted process, over a short period of time, of<br>
carrying on or carrying out murder of more than one person.” Jackson, 17 S.W.3d<br>
at 669 (quoting Rios, 846 S.W.2d at 314); Coble, 871 S.W.2d at 198–99.<br>
Appellant asserts that the evidence is insufficient to show that both murders<br>
occurred in the same criminal transaction. Specifically, Appellant contends that the<br>
murders in this case were two separate and distinct criminal transactions because<br>
there was no evidence that Appellant planned to kill Patricia nor was there evidence<br>
of any connection between Shelton and Patricia.<br>
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As noted by the State, the focus of Section 19.03(a)(7)(A) is the continuity of<br>
the killings, not whether the killings were each part of a common plan. See Rios,<br>
846 S.W.2d at 314 ("[W]e know the Legislature must have intended 'same criminal<br>
transaction' to amount to something less than 'same scheme or course of conduct.'”).<br>
In this regard, multiple killings pursuant to a common scheme or plan is a separate<br>
offense under Section 19.03(a)(7)(B). Compare PENAL § 19.03(a)(7)(A), with<br>
§ 19.03(a)(7)(B).<br>
Coble is instructive in addressing the question of whether the evidence is<br>
sufficient to prove that Patricia's murder occurred in the "same criminal transaction”<br>
as Shelton's murder.<br>
1<br>
871 S.W.2d at 192. There, the appellant murdered three<br>
victims—the parents and brother of his estranged wife—over the course of an<br>
afternoon; the first murder occurred between 2:00 p.m. and 3:30 p.m., the second<br>
between 4:15 p.m. and 5:30 p.m., and the third shortly after 5:30 p.m. Id. at 198.<br>
The victims all lived on the same street. Id. at 198. The appellant first murdered his<br>
father-in-law in the parents' house. Id. He then murdered the brother in the brother's<br>
garage, located a "short distance down the road” from the parents' house. Id. at 195,<br>
198. The appellant then murdered his mother-in-law, approximately three and a half<br>
hours after the first murder, in the parents' garage. Id. at 198. Between each murder,<br>
the appellant returned to his wife's house, where he had handcuffed and restrained<br>
her children, awaiting the arrival of each of his next victims for "less than one hour<br>
between each murder.” Id.<br>
The Court of Criminal Appeals held:<br>
Given that the three murders occurred in close proximity to each other,<br>
on the same road, within a few hours of each other, in a continuous and<br>
uninterrupted series of events, a jury could have rationally concluded<br>
1<br>
Both parties' briefs focused on the facts in Coble. We agree that Coble is a helpful guide in<br>
examining the facts before us.<br>
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beyond a reasonable doubt that [the] appellant murdered [his wife's]<br>
father, brother, and mother during the "same criminal transaction.”<br>
Id. at 199. In an accompanying footnote, the court, relying on the legislative history<br>
of the "same criminal transaction” provision,2 characterized the provision as<br>
"intended for mass murders, e.g., 'bombs a car killing several people or kills six<br>
people in a row at a bar.'” Id. at 199 n.10 (citing Corwin v. State, 870 S.W.2d 23,<br>
28, n.5 (Tex. Crim. App. 1993)). The court stated that "[a]lthough appellant's<br>
actions do not fit within . . . the typical mass murder . . . scenarios, his actions are<br>
more analogous to a mass murder . . . .” Id. at 199 n.10.<br>
In this case, Appellant murdered two people in the span of thirteen minutes,<br>
and the murder scenes were three miles apart. Appellant committed these murders<br>
immediately following the incident at Perika's in which he threatened to kill Tiffany<br>
and Mike Diaz. Twenty to twenty-five minutes after leaving Perika's on foot,<br>
Appellant pulled into the Perika's parking lot in his white suburban, exited his<br>
vehicle while calling out Diaz's name, and then shot and killed his first victim,<br>
Shelton, at 11:41 p.m. Appellant quickly left, before police arrived at 11:42 p.m.<br>
Appellant contends that this concluded the criminal transaction of killing Shelton.<br>
Upon departing Perika's, Appellant immediately returned to his house, where<br>
Patricia and Tiffany were located. While on the way back to Appellant and Tiffany's<br>
house, Appellant was on the phone with Tiffany, who, with Patricia, was sitting in<br>
Patricia's car outside the house. Arriving within approximately three or four minutes<br>
of his departure from the scene of his first murder, Appellant immediately exited his<br>
vehicle and began shooting into Patricia's car. Appellant's shots struck Patricia in<br>
the head and neck, killing her, and struck Tiffany in her finger. As Appellant was<br>
reloading his weapon, Tiffany escaped Patricia's car, got into Appellant's suburban,<br>
2<br>
At the time, the provision was codified as Section 19.03(a)(6)(A). See Coble, 871 S.W.2d at 199 &<br>
n.10.<br>
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and drove herself to the Gaines County Sheriff's Office, arriving at 11:54 p.m.,<br>
thirteen minutes from the time that Appellant fired the first shots at Perika's.<br>
Appellant urges that the State has not proved any motive or plan by Appellant to<br>
harm Patricia, with whom he claims he had a good relationship. But motive and<br>
plan are not required to be proved in the charged offense under<br>
Section 19.03(a)(7)(A).<br>
Given that the two murders occurred within relatively close proximity to each<br>
other—three miles apart, within thirteen minutes of each other, and in a continuous<br>
and uninterrupted series of events, a jury could have rationally concluded beyond a<br>
reasonable doubt that Appellant murdered Shelton and Patricia during the "same<br>
criminal transaction.” See Coble, 871 S.W.2d at 199 & n.10. We overrule<br>
Appellant's sole issue.<br>

We affirm the judgment of the trial court.<br>