Appeal from the 182nd District Court Harris County, Texas
Trial Court Case No. 1278695
consists of Justices Jennings, Bland, and Lloyd.
found appellant, Francisco Guzman, guilty of the offense of
capital murder. Because the State did not seek the death
penalty and appellant was a juvenile when he committed the
offense, the trial court, as statutorily required, assessed
his punishment at confinement for life. The trial court
further found that appellant used a deadly weapon, namely, a
knife, in the commission of the offense. In three issues,
appellant contends that the trial court erred in denying his
request for a jury instruction on spoliation of the evidence,
his trial counsel provided him with ineffective assistance,
and the statutes under which he was sentenced violate the
Eighth Amendment's prohibition against cruel and unusual
Rodriguez ("Patricia") testified that in November
2004, she lived at home with her parents, Maria Manzo
("Manzo") and Alejandro Rodriguez
("Alejandro"); three sisters, Acuzena Rodriguez
("Suzanna"), Maria Rodriguez ("Maria"),
and Rufina Rodriguez, the complainant; and her cousin, appellant.
Patricia explained that on November 8, 2004, she and Maria
rode a bus home from school. When they arrived, the front
door was locked, but appellant, who was home at the time, let
them into the house. Maria then went upstairs, and Patricia
walked straight to a telephone in the kitchen to call her
boyfriend. As she tried to make her telephone call, appellant
stood behind her. When she discovered that the telephone was
"dead, " appellant confirmed that "the phone
wasn't working, " and she walked to her parent's
master bedroom to try to use the telephone located in there.
Appellant followed Patricia into the master bedroom and stood
behind her as she tried to make her telephone call. When she
realized that this telephone was also "not working,
" she tried to leave the master bedroom. Appellant,
however, punched Patricia's face with his fist, and she
believed that "he was going to kill [her]."
appellant punched Patricia, he threw her onto the floor and
began stabbing her in the chest, neck, arms, and back with a
knife. He cut her arms as she raised them to her face to
protect herself. Appellant stabbed Patricia eight times, the
attack lasted for "about ten minutes, " and once he
had stopped stabbing her, she fled to the "dressing
area" of the master bedroom. At that point, Maria came
into the master bedroom, and appellant "grabbed a pole
and hit her [o]n the head."
Patricia saw Maria again, she was walking to the bathroom
area in the master bedroom and screaming. Patricia then heard
appellant tell Maria that if she would not be quiet, "he
was going to cut out her tongue." Further, Patricia
heard appellant "taping" Maria. He also
"pushed [Patricia] inside the [master-bedroom]
closet" and "duct tape[d]" her hands, mouth,
and legs. Appellant then left the master bedroom when
Patricia's mother, Manzo, came home.
appellant returned to the master bedroom with Manzo, they
began talking. Hearing her mother, Patricia tried to help,
but appellant "ran after [Patricia] and stabbed [her] in
[the] back." Patricia thereafter remained in the
master-bedroom closet until her mother came and got her after
the entire attack was over. Patricia's sister, Suzanna,
called for emergency assistance.
further testified that after appellant had stabbed her, she
felt dizzy, could not breathe, and bled "a lot."
She pretended to be dead so that appellant would "stop
stabbing [her] or doing something else." And following
the attack, emergency medical personnel took Patricia to a
hospital, where she stayed for two months following surgery.
Patricia further explained that although Manzo, prior to the
day of the attack, had placed a lock on the door of the
master-bedroom closet, on the day of the attack, the closet
door and lock were broken.
testified that appellant, her sister's son, lived with
her family in 2004. While he was living with them, Manzo
noticed that certain items would go missing from the home.
This prompted her to place a lock on the master-bedroom
closet, where she kept "[a]ll the gold that belonged to
[her] daughters and [her] family." Manzo also noted that
in November 2004, she owned a truck, which appellant did not
have permission to drive.
November 8, 2004, Manzo went to work, and she later returned
home at the same time as Suzanna and the complainant. When
they entered the house, appellant, who was in the living
room, told Manzo that "he had problems and he wanted to
talk to [her] in the [master] bedroom." After they
entered the master bedroom, appellant told Manzo that
"somebody had broken into [the house] to steal" and
"he had . . . kill[ed]" that person. Seeing the
blood in the bedroom, she tried to comfort appellant. Manzo
then heard "[g]roaning or crying, " and as she
tried to walk toward the dressing area and closet, appellant
stabbed her in the stomach with a knife. He then threw her to
the floor, saying, "Give me your money." (Internal
quotations omitted.) After Manzo gave him $700 that was in
her pocket, appellant continued attacking her, stabbing her
on her head, arms, face, legs, and chest, about fifteen
times, causing her to bleed "[a] lot."
Manzo was down on the floor, appellant yelled, "Suzanna.
Suzanna. Your mom fell." (Internal quotations omitted.)
When Suzanna came toward the master bedroom, he "stabbed
her in the stomach." However, she was able to flee to
the home's hallway bathroom. Finally, when the
complainant came "run[ning]" toward the master
bedroom "to see what was going on, " appellant
"grabbed her from her hand" and stabbed her in the
chest "a lot." Seeing appellant stab the
complainant, Manzo tried to "pull her away from
him." Appellant then proceeded to stab Manzo in the
"upper chest or . . . shoulder area." When
appellant stopped attacking Manzo, he said, "Don't
move. Stay there." (Internal quotations omitted.) He
then left the house, driving away in Manzo's truck. Manzo
found Patricia in the closet in the master bedroom and Maria
in the master-bedroom bathroom, tied up with duct tape.
Emergency medical personnel took Manzo, Patricia, Suzanna,
Maria, and the complainant to a hospital. Manzo required
surgery and stayed in the hospital for two weeks.
further testified that appellant did not have permission to
take $700 from her. And after the attack, she discovered that
a jewelry box and her jewelry, which she did not give anyone
permission to take, were missing from the master-bedroom
Francis Welsh testified that in November 2004, he was an
attending trauma surgeon at Ben Taub Hospital when the
complainant, who did not have a pulse and was not breathing,
arrived at the hospital. She had sustained "multiple
stab wounds to her chest" and her "lower
extremities." She had also sustained injuries to her
lungs and a laceration to the left ventricle of her heart.
Welsh noted that any of the complainant's injuries,
independently, "could [have] be[en] lethal, " and
when combined in the complainant's case, "they were
Morna Gonsoulin, an assistant medical examiner at the Harris
County Institute of Forensic Sciences, testified that she
performed an autopsy on the complainant, who died on November
8, 2004. Gonsoulin explained that the complainant had
sustained four stab wounds and other injuries, including
cuts, abrasions, and a subscapular hemorrhage from being
"hit with something." "Stab wound number one,
" on the right side of the complainant's chest, was
likely caused by a knife, or a similar object. It extended
"from the chest . . . through the muscle . . . [and]
cut through th[e] first rib on the right. It [went] through
the rib bone. And then . . . through the right lung . . . to
the spinal column and the junction of the rib around the
third rib." And it was caused by "a great deal of
force." "[S]tab wound number two, "
"start[ed] on the left side of the [complainant's]
chest sort of in the axillary armpit and then [went] through
the muscle of the chest. . . . It [went] through the left
third rib, again cutting through another rib . . . [and]
through the upper lobe of the left lung. . . . [T]hen it
[went] through the muscle on the left side of the heart, the
left ventricle[, ] . . . all the way to the sort of middle
split in the heart, or the septum." Caused by
"something with a blunt end and a sharp end, " like
a knife, "stab would number two" was four and a
half inches deep. "[S]tab wound number three"
"actually went all the way through the
[complainant's] wrist, " "cut[ting] a groove
into the head of th[e] [complainant's] radial bone."
Caused by a knife or a similar object, it was consistent with
a person "holding both of [her] arms in front of [her]
face, " with her palms up, in a defensive position.
"[S]tab wound number four" was on the
complainant's right thigh and about one-inch deep.
on the autopsy, Dr. Gonsoulin opined that the cause of the
complainant's death was "stab wounds [to] the chest,
" and she ruled the death a homicide. She also noted
that a knife, or similar object, that caused the stab wounds
to the complainant was a "deadly weapon."
first issue, appellant argues that the trial court erred in
denying his request for a jury instruction on spoliation of
the evidence because "the sheer volume of evidence
lost" shows that the State "lost or destroyed the
evidence in bad faith" and "[p]ublic policy demands
a remedy for such errors."
review of jury-charge error involves a two-step analysis.
Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim.
App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32
(Tex. Crim. App. 1994). First, we must determine whether
error actually exists in the charge, and, second, if error
does exist, whether sufficient harm resulted from the error
to require reversal. Ngo, 175 S.W.3d at 743-44;
Abdnor, 871 S.W.2d at 731-32. If the defendant
preserved error by timely objecting to the charge, an
appellate court will reverse if the defendant demonstrates
that he suffered some harm as a result of the error.
Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim.
App. 2009). We review a trial court's decision not to
submit an instruction in the jury charge for an abuse of
discretion. See Wesbrook v. State, 29 S.W.3d 103,
121-22 (Tex. Crim. App. 2000).
appellant complains, and the State does not dispute, that the
following evidence was lost in this case: (1) a surveillance
videotape recording of appellant at a pawnshop on November 8,
2004; (2) "sheets of paper" containing written
responses from Patricia to questions asked by her father,
Alejandro; and (3) an audio recorded statement of Suzanna
taken in the hospital by a law enforcement officer. At trial,
appellant requested that the trial court give a spoliation
instruction to the jury, as follows:
And as to the proposed charge as it exists now, the defendant
would request an instruction which would be on spoilation
[sic] of evidence instruction, Judge, and requests
instruction. And the wording similar to this would be that
the Houston Police Department and the State of Texas had a
duty to retain the videotape from the pawnshop, the question
and answer notes taken in the hospital from the victim
Patricia . . ., and the cassette recorded statement of the
victim Suzanna . . ., that the City of Houston Police
Department and/or the State of Texas destroyed, lost, or
failed to produce that, the above stated evidence. You may
consider that this evidence would have been unfavorable to
the City of Houston Police Department and the State of Texas
and would have been favorable to [appellant] . . ., with said
evidence being relevant to his intent and mental state at the
time of the commission of the offense. We would request a
trial court denied appellant's request.
concerns the loss or destruction of evidence. Torres v.
State, 371 S.W.3d 317, 319 (Tex. App.-Houston [1st
Dist.] 2012, pet. ref'd). In the criminal context, when
spoliation concerns potentially useful evidence, the
defendant bears the burden of establishing that the State
lost or destroyed the evidence in bad faith. See Ex parte
Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010);
Torres, 371 S.W.3d at 319-20. The duty to preserve
evidence is limited to evidence that possesses an exculpatory
value that was apparent before the evidence was destroyed.
White v. State, 125 S.W.3d 41, 43-44 (Tex.
App.-Houston [14th Dist.] 2003, pet. ref'd). A defendant
must affirmatively show that the lost evidence was favorable
and material to his defense. Id. at 44.
Police Department ("HPD") Sergeant R. Torres
testified that on November 10, 2004, he viewed the
surveillance videotape recording of appellant at a pawnshop,
but he was unable to retrieve the videotape recording that
day. He then "ma[d]e arrangements for somebody from
[HPD's] forensic video lab to come the following day [to
the pawnshop] to recover it." Torres explained that HPD
Officer Hooper thereafter retrieved the surveillance
videotape recording from the pawnshop and "it went into
the case file . . . in the file room" for the HPD
homicide division. The last place that Torres saw the
recording was in the case file, and he was, only just prior
to trial, informed that HPD was unable to produce it.
regard to the "sheets of paper" containing written
responses from Patricia to questions asked by her father,
Alejandro, Sergeant Torres noted that he, on November 8,
2004, met with Alejandro who gave him the "sheets of
paper." Torres, who was responsible for the case file
until he retired in 2014, explained that he put the
"sheets of ...