Appeal from the 209th District Court Harris County, Texas
Trial Court Cause No. 1292569
consists of Justices Boyce, Jamison, and Brown.
W. Brown Justice.
Jose Guadelupe Guerrero appeals his murder conviction in two
issues. We affirm.
evening of January 8, 2010, Officer R. Cantu responded to a
shooting-in-progress call at appellant's home. When Cantu
arrived at the scene, Officer M. Peters and paramedics were
already there. The bedroom was in disarray, and it looked as
if there had been a struggle. Appellant was pacing around
with blood on his hands. Martha Escamilla, appellant's
girlfriend, was lying on the floor on her back in a pool of
blood close to the bed. Escamilla had been shot in the head.
According to Cantu and one of the paramedics, the gun (a
semiautomatic 9-millimeter handgun) was laying near the foot
of the bed. Peters recovered the gun from the bed and secured
it in a container within the trunk of his patrol car for
"safekeeping" and "officer safety." Cantu
took appellant outside to preserve the scene. Appellant kept
saying to Cantu and Peters that Escamilla "shot herself,
" but one time appellant told them that he "shot
R. Nunez and Officer C. Duncan with the Crime Scene Unit
documented and collected evidence at the scene. Nunez
photographed and collected the gun from the trunk. Nunez and
Duncan performed forensic analysis involving the gun. Officer
E. Castaneda with the homicide division obtained
appellant's videotaped statement. According to appellant,
immediately after shooting herself, Escamilla threw the gun
onto the bed before she collapsed.
was indicted for felony murder and proceeded to trial in
April 2016. On the fourth day of testimony, the State
presented the trial court with police disciplinary records
involving 21 employee complaints against Peters dating from
April 2010 to June 2015 that had been
sustained. Because the records were material for
purposes of Brady v. Maryland, 373 U.S. 83 (1963),
the trial court provided them to appellant to prepare for
cross-examination of Peters. The next day, appellant filed a
motion for continuance, arguing that appellant needed
additional time to gather information about the specifics of
the disciplinary actions to determine their relevance and
materiality to any alleged statement made by appellant in
Peters's presence and for potential spoliation claims.
The State reported that Peters was not available to testify
due to his mental and physical condition. The trial court
heard and denied appellant's motion.
during trial, while appellant's statement was being
played to the jury, two of Escamilla's adult children
were shaking their heads and making facial expressions of
surprise. The trial court determined that no juror was
influenced by the children's behavior. The trial court
instructed the jurors not to consider such behavior during
their deliberations. Appellant moved for a mistrial, and the
trial court denied the motion.
jury returned a verdict of "guilty" and assessed
appellant's punishment at confinement for 99 years in the
Institutional Division of the Texas Department of Criminal
Justice. Appellant timely appealed.
Motion for continuance
first issue, appellant contends that the trial court erred in
denying his motion for continuance. Appellant argues that
because Peters retrieved the gun from the scene and placed it
in the trunk of his police car, and because Peters has a
history of police misconduct, the trial court should have
given appellant time to gather additional information about
such misconduct and its relevance and materiality to any
statements appellant made in Peters's presence and for
potential spoliation of evidence.
29.13 of the Texas Code of Criminal Procedure provides that
the trial court may grant a continuance after trial has begun
"when it is made to appear to the satisfaction of the
court that by some unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated,
the applicant is so taken by surprise that a fair trial
cannot be had." Tex. Code Crim. Proc. art. 29.13 (West
2015). We review a trial court's ruling on a motion for
continuance during trial for an abuse of discretion.
Barney v. State, 698 S.W.2d 114, 126-27 (Tex. Crim.
App. 1985); Bautista v. State, 474 S.W.3d 770, 777
(Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). We do
not disturb the trial court's ruling on a continuance
absent an abuse of discretion. Williams v. State,
768 S.W.2d 337, 341 (Tex. App.- Houston [14th Dist.] 1989,
pet. ref'd); Freeman v. ...