Reconsideration denied May 11, 2015.
Murder. Hall Superior Court. Before Judge Gosselin.
Howard W. Anderson III, for appellant.
Lee Darragh, District Attorney, Lindsay H. Burton, William C. Akins, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.
MELTON, Justice. All the Justices concur.
Following a jury trial, Hugo M. Tepanca was found guilty of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony, all with regard to the shooting death of Jose Sanchez-Vargas. On appeal, Tepanca contends, among other things, that he has been subjected to mutually exclusive verdicts and that he received ineffective assistance from his first appellate counsel. For the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the record shows that, in April 2008, Tepanca lived with Melissa Gonzalez-Clambron, with whom he had two children. Tepanca and Gonzalez-Clambron have never been married. Approximately six months before the birth of his second child, Tepanca began a secret sexual relationship with Alicia Hernandez; however, Hernandez told Tepanca prior to the murder that she wished to stop seeing him. Sanchez-Vargas often drove Hernandez and a number of her neighbors to work for a fee.
On April 20, 2008, at around 7:00 p.m., Sanchez-Vargas visited Hernandez to collect his driving fee. Sanchez-Vargas and Hernandez spoke outside her home, and Sanchez-Vargas remained in his truck. Tepanca, who was visiting the same complex with Gonzales-Clambron, saw this conversation taking place, approached Sanchez-Vargas's truck, and asked Sanchez-Vargas what he was doing there. Tepanca did not personally know Sanchez-Vargas, and he testified that, prior to that moment, he did not believe that Hernandez was sexually involved with anyone else. Sanchez-Vargas answered Tepanca [297 Ga. 48] that what he was doing was none of Tepanca's business. Angered, Tepanca pulled out a handgun and fired into the ground. Sanchez-Vargas was unarmed. Hernandez then told Sanchez-Vargas to leave, which he did. Following a brief altercation with Gonzales-Clambron, Tepanca drove off in the same direction.
According to Tepanca, he and Sanchez-Vargas had contact at a traffic light a short distance away. Tepanca testified that Sanchez-Vargas threatened Tepanca that he would " kick his ass." When the light turned green, Tepanca decided to follow Sanchez-Vargas,
and he tracked him all the way to his home. Tepanca testified repeatedly that, at the time that he decided to follow Sanchez-Vargas, he was not mad. Instead, Tepanca's stated intention was " to make things right." According to Tepanca, Sanchez-Vargas got out of his truck, and Tepanca asked him if they could work things out. Tepanca testified that Sanchez-Vargas repeated the threat to kick his ass, walked toward Tepanca, and appeared to reach for something in his pocket. Tepanca then shot Sanchez-Vargas six times, even while ...