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Guerrero v. State

Court of Appeals of Texas, Fourteenth District

July 20, 2017


         On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1292569

          Panel consists of Justices Boyce, Jamison, and Brown.


          Marc W. Brown Justice.

         Appellant Jose Guadelupe Guerrero appeals his murder conviction in two issues. We affirm.

         I. Background

         On the 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 her."

         Sergeant 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.

         Appellant 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.[1] 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.[2] 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.

         Also 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.

         The 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.

         II. Analysis

         A. Motion for continuance

         In his first issue, appellant contends that the trial court erred in denying his motion for continuance.[3] 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.

         Article 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. ...

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