A Tucson man convicted last year of premediated first-degree murder in a drive-by shooting but found not guilty of several other charges connected to the incident has been ordered back to court Wednesday to learn if a Pima County judge will set aside the jury’s verdict in favor of a new trial.
Anthony Rene Fimbres was found guilty Nov. 26, 2019 of felony murder with premeditation for the death of Jesus Castro Sr., who died in April 2018 after being shot at by someone in a passing vehicle as he sat in a truck outside his home on Tucson’s eastside. One of Castro’s adult sons suffered serious injuries while another escaped unharmed as they stood near their father’s vehicle.
The same jury which found Fimbres, 49, guilty of Castro’s murder also returned not guilty verdicts to several other charges against him in connection to the shooting, including aggravated assault, endangerment, discharge of a firearm, and prohibited possession of a firearm by a felon.
The jury’s split verdict “is more than wildly inconsistent, it is impossible under the law,” according defense attorney Tom Hartzell who has filed two motions seeking a new trial. The defense contends the murder verdict was contrary to law and not supported by the evidence, and that alleged legal errors by Judge Gus Aragon during the 13-day trial justifies tossing out the conviction.
“The jury found that Fimbres did not shoot the truck in which Castro was killed, did not shoot the Castro house, assault Alejandro Castro or endanger Jesus Castro Jr.,” according to one of Hartzell’s motions. “Yet, the jury found that Fimbres killed Castro within the shot-up truck” with premeditation.
Hartzell contends that if the jury believed Fimbres pulled the trigger of the gun which killed Castro, 51, then he must be found guilty of the other charges as well. The same would be true under accomplice liability, he argues, if the jurors believed Fimbres was part of a plan with others to kill Castro.
“Curiously, both the defendant and the state had characterized the case as an ‘all or nothing’ case,” Hartzell noted. The Pima County Attorney’s Office maintains the murder conviction should be upheld and has asked Aragon to deny the defense motions.
According to trial testimony, Fimbres and Castro were involved in 2017 in shipping marijuana from Tucson where it would be sold out-of-state and then the proceeds were returned to Arizona. The two apparently had a falling out several months before Castro was killed.
Several minutes after the shooting, the vehicle which authorities believe was used for the drive-by shooting was found engulfed in flames a few blocks from Castro’s home. Detectives with the Tucson Police Gang Unit later traced the vehicle to Fimbres, who previously served time in the Federal Bureau of Prisons.
The judge has not yet imposed sentence on the murder conviction. In the meantime, Fimbres remains in the Pima County jail on a no-bond order.