Ortiz v. State

One conviction for aggravated assault should have merged into the defendant's malice murder conviction, as there was no deliberate interval between a shot to the first victim's arm and the fatal shot to his head.

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Appellant Edison Ortiz was convicted of two counts of murder and related crimes in connection with the shooting deaths of Deryll and Linda Bruce and sentenced, in total, to a term of life imprisonment plus five years. In this appeal of the denial of his motion for new trial, Appellant alleges reversible error in certain jury instructions and in the trial court’s failure to merge several of his convictions. Finding no error in the jury charge, we affirm, but vacate one count of aggravated assault, which should have been merged into the malice murder conviction.1 Construed in the light most favorable to the jury’s verdict, the evidence adduced at trial established the following. On August 29, 2009, Appellant and his wife were at home when the victims, with whom Appellant had had prior difficulties, arrived to retrieve some personal property. While outside the house, Appellant and the victims got into an argument, which grew heated, with Linda Bruce kicking Appellant and Appellant demanding that the victims leave the property. Appellant went inside and retrieved a .45 handgun. With his wife pleading for him to stop, Appellant returned to the front of the house and fired the gun at them through the open front door. Deryll Bruce was shot in the arm and fled, bleeding, to a neighboring house. Appellant then fired his gun at Linda Bruce, delivering a fatal shot to her forehead.

Outside the neighboring house were Richard McNeely and McNeely’s brother, son, and nephew. Deryll ran to them yelling for help, followed by Appellant. Attempting to escape, McNeely and the three men jumped into their truck and sped away. Watching from the bed of the truck, McNeely saw Appellant and Deryll standing face to face in the street, then saw Appellant raise his gun, shoot Deryll from an arm’s length distance, and shoot him a second time in the head after Deryll had fallen to the ground.

Ortiz v. State

One conviction for aggravated assault should have merged into the defendant's malice murder conviction, as there was no deliberate interval between a shot to the first victim's arm and the fatal shot to his head.

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