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State v. Vargas

Court of Criminal Appeals of Tennessee, Nashville

February 21, 2017

STATE OF TENNESSEE
v.
JUAN DIEGO VARGAS

          Assigned on Briefs February 15, 2017

         Appeal from the Criminal Court for Davidson County No. 2010-B-1410 Cheryl A. Blackburn, Judge

         Defendant, Juan Diego Vargas, was convicted by a Davidson County jury of first degree murder and sentenced to life imprisonment. On appeal, he challenges the sufficiency of the evidence. After a review, we affirm the judgment of the trial court. However, it appears that the trial court failed to enter a judgment form dismissing Count Three of the indictment. Accordingly, we remand for entry of a judgment form dismissing Count Three of the indictment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed and Remanded

          Mark Kovach, Nashville, Tennessee, for the appellant, Juan Diego Vargas.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney General; Doug Thurman and Lody Limbird, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas J. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Defendant and his brother were indicted by the Davidson County Grand Jury in April of 2010 for first degree murder and employing a firearm during the commission of a dangerous felony.[1] The incident giving rise to the indictment occurred on March 1, 2010, inside Las Potrancas[2] Bar on Haywood Lane where Manual Santos Reyes, the victim, was shot. He died from a gunshot wound to the head several days later.

         Ahmad El-Assuli, a licensed armed security guard, was employed by the owner of the bar, which was primarily patronized by Spanish-speaking customers. At the time of the incident he had worked there approximately eight months. His job required him to search the customers coming in for "[a]ny guns, any weapons" and to "maintain[] peace inside the bar and watch[] the customers." Mr. El-Assuli did not speak Spanish.

         On the evening of Sunday, February 28, 2010, business was slow inside the small bar, which was located in a building that used to be a Waffle House. A few "regular" customers, including the victim and his friend, Antonio Hernandez, were inside the bar playing pool. The victim was dating one of the servers, Laura Cervantes.

         Around 9:00 p.m., Mr. El-Assuli searched a man entering the bar. He did not recognize the man, who sat with several of his friends at a table in the back corner of the bar near the pool table. Mr. El-Assuli did not see any interaction between the men seated at the table and the victim during the evening.

         Around 2:15 a.m., Mr. El-Assuli checked the bathroom to make sure it was empty because it was approaching closing time. When he exited the bathroom, he saw the man get up from his table in the far corner of the bar and walk toward the exit door. According to Mr. El-Assuli, the man stopped near the pool table and "looked like he said something" to the victim, possibly even whispering it to him. Mr. El-Assuli thought the interaction between the two men lasted anywhere from ten to thirty seconds. Then, the man pulled a gun from his waistband, pointed it to the victim's head, and pulled the trigger.

         Mr. El-Assuli testified that he pulled out his gun, pointed it at the man and pulled the trigger before realizing that the safety was engaged. Mr. El-Assuli quickly put his gun back in the holster, "hoping" that the man did not see him because the man's "friends got all around him, " trying to take him outside. The man "climb[ed] on top of [his friends]" and pointed his gun at Mr. El-Assuli and tried to ...


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