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Guzman v. State

Court of Appeals of Texas, First District

September 7, 2017


         On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1278695

          Panel consists of Justices Jennings, Bland, and Lloyd.


          Terry Jennings Justice

         A jury found appellant, Francisco Guzman, guilty of the offense of capital murder.[1] 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.[2] 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 punishment.[3]

         We affirm.


         Patricia 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[4]; 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]."

         After 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."

         When 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.

         When 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.

         Patricia 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.

         Manzo 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.

         On 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."

         Once 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.

         Manzo 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 closet.

         Dr. 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 lethal."

         Dr. 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.

         Based 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."

         Spoliation Instruction

         In his 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."

         A 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).

         Here, 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 similar instruction.

         The trial court denied appellant's request.

         Spoliation 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.

         Houston 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.

         In 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 ...

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