A Gainesville man convicted of shooting a man six times on suspicion of an affair with his girlfriend will have his appeal heard Monday by the Supreme Court of Georgia.
A jury found Hugo Moguel Tepanca guilty of malice murder and felony murder in April 2010 for the April 2008 slaying of Jose Sanchez-Vargas, a man Tepanca thought was romantically involved with his girlfriend, Alicia Hernandez.
He received a life sentence plus five years, which is now being appealed to the state Supreme Court.
Tepanca’s attorney, Howard W. Anderson III, argues that the jury should have been told how factors, including adultery and a fight, can lead to a manslaughter charge, a less serious charge than murder, according to the court summary.
According to testimony, Tepanca approached Sanchez-Vargas’ vehicle in Hernandez’s driveway, asking what he was doing there. Sanchez-Vargas said he was there as part of a transportation agreement, but Tepanca’s defense said he believed Sanchez-Vargas was romantically involved with Hernandez.
The men drove away and ended up in front of a Merck Street home, when Tepanca fired six shots at Sanchez-Vargas.
Northeastern Judicial Circuit District Attorney Lee Darragh and the state argue the adultery angle does not apply, as neither Tepanca nor Hernandez were married.
Anderson also contends that because the two men fought, the jury should have been instructed on “mutual combat,” which can lead to the lesser manslaughter charge.
The state refutes that claim, according to the court summary, saying there is no evidence to support it.
Anderson claims there were eight errors made in Tepanca’s sentencing, including the merging of counts.
Tepanca was found guilty by a jury of malice murder, felony murder, aggravated assault and possession of a firearm during the commission of a crime.
The other counts were merged into the felony murder, which Anderson claims should have been merged into the malice murder count.
“While the preferred practice when verdicts of guilty are returned on both malice and felony murder is to merge the felony murder into the malice murder, the subsequent imposition of a life sentence … renders any perceived error harmless,” Darragh wrote in a brief.
The case will be heard at 2 p.m. Monday at the state Supreme Court in Atlanta.