Jesus Guerrero, Jr. A/K/A Jesus A. Guerrero A/K/A Jesse A. Guerrero v. State of Texas--Appeal from 218th Judicial District Court of Wilson County

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Laws-info.com » Cases » Texas » 4th District Court of Appeals » 2001 » Jesus Guerrero, Jr. A/K/A Jesus A. Guerrero A/K/A Jesse A. Guerrero v. State of Texas--Appeal from 218th Judicial District Court of Wilson County

State: Texas

Court: Texas Northern District Court

Docket No: 04-00-00657-CR

Case Date: 11/07/2001

Plaintiff: DOUGLAS RAY WOODS

Defendant: THE STATE OF TEXAS--Appeal from 329th District Court of Wharton County

Preview:Jesus Guerrero, Jr. A/K/A Jesus A. Guerrero A/K/A Jesse A. Guerrero v. State of Texas--Appeal from 218th Judicial District Court of Wilson County
No. 04-00-00657-CR Jesus A. GUERRERO, Jr., Appellant v. The STATE of Texas, Appellee From the 218th Judicial District Court, Wilson County, Texas Trial Court No. 98-07-00066-CRW Honorable Olin B. Strauss, Judge Presiding Opinion by: Phil Hardberger, Chief Justice Sitting: Phil Hardberger, Chief Justice Paul W. Green, Justice Sarah B. Duncan, Justice Delivered and Filed: November 7, 2001 AFFIRMED Jesus A. Guerrero, Jr. ("Guerrero") appeals his conviction for aggravated assault with a deadly weapon. In four points of error, Guerrero argues: (1) he is entitled to a new trial based on juror misconduct, and the trial court abused its discretion in denying his motion for new trial without an evidentiary hearing; (2) he is entitled to a new trial based on outside influence, and the trial court abused its discretion in denying his motion for new trial without an evidentiary hearing; (3) he received ineffective assistance of counsel at trial; and (4) the trial court erred in not providing a reasonable doubt instruction as to the consideration of extraneous offense evidence. We affirm the trial court's judgment. Background Guerrero was charged by indictment with aggravated assault with a deadly weapon in retaliation, in violation of Texas Penal Code 22.02(b)(3), a first degree felony. The jury found Guerrero guilty of the lesser included offense of aggravated assault with a deadly weapon, a second degree felony. The jury assessed punishment of twenty years imprisonment and a $10,000 fine. Guerrero filed a Motion for New Trial, supported by affidavits, on the grounds of jury misconduct, outside influence, and prosecutorial misconduct. The motion included a request for an evidentiary hearing. The trial court never granted a hearing on the matter, and the motion was overruled by operation of law. On September 14, 1999, Guerrero filed a Notice of Appeal. This Court dismissed the appeal for lack of jurisdiction, holding that the notice was not timely filed. On February 7, 2000, Guerrero filed an Original Petition for Writ of Habeas Corpus with the Texas Court of Criminal Appeals, alleging ineffective assistance of counsel for failure to timely file a notice of appeal. The Court granted the writ on August 30, 2000, and issued an order allowing Guerrero to file an out of time appeal. Guerrero timely filed his new Notice of Appeal on September 14, 2000. On January 30, 2001, Guerrero filed a Motion to Abate Appeal, requesting a remand to the trial court to hold an evidentiary hearing on
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the issues of jury misconduct, outside influence, and prosecutorial misconduct. This Court denied the motion on February 28, 2001, stating that "a motion for remand is generally not a proper vehicle to present this point on appeal." In the Order denying the motion, this Court further stated: "Guerrero may brief his complaint as a point on appeal. If after consideration of the briefs and record, a hearing is crucial to our decision, we will remand to the trial court for a hearing." Evidentiary Hearing / Motion for New Trial In his first and second points of error, Guerrero argues that he is entitled to a new trial based on juror misconduct and outside influence, and that the trial court abused its discretion in denying his motion for new trial without an evidentiary hearing. The State asserts that the motion was not properly presented, that Guerrero failed to show that any juror misconduct resulted in harm, and that Guerrero failed to demonstrate that any alleged outside influence interfered with the jury's verdict. In his motion for new trial, Guerrero alleged that jury misconduct occurred when jurors discussed the case during breaks despite the trial judges instructions not to discuss the case before official deliberations began. He further alleged that the jury was subjected to outside influence in that several jurors believed Guerrero's family was taking pictures of them during the trial. Guerrero supported his motion for new trial with the affidavits of one juror and two private investigators. The juror, Heather Cherry, stated in her affidavit that during trial, before deliberations, jurors "would discuss things like what we thought the prosecution and the defense might do or say, as well as the testimony we had heard." She also stated that the jury thought they had seen Guerrero's family with a camera, and that "this bothered me and I felt intimidated by the defendant's family because they kept staring at us." The private investigator's affidavits both stated that they had interviewed a juror who told them that some of the jurors were intimidated by Guerrero's family having a camera and taking pictures of them. During the trial, the judge did inquire as to the jury's belief that Guerrero's family had a camera. He concluded that the family did not have a camera in the courtroom and reassured the jury accordingly. A. Evidentiary Hearing "A defendant does not have an 'absolute right' to a hearing on a motion for new trial." Rodriguez v. State, 12 S.W.3d 585, 586 (Tex. App.-San Antonio 2000, no pet.). Nevertheless, "when a party presents to the trial court a timely motion for new trial, properly supported by affidavit, which raises matters extrinsic to the record, a trial court abuses its discretion by denying a hearing on the motion." Id. However, "[a] supporting affidavit must contain sufficient facts to demonstrate reasonable grounds for holding that relief should be granted." Id. A motion for new trial based on jury misconduct or outside influence must include an affidavit of "a juror or some other person who was in a position to know the facts, or must state some reason or excuse for failing to produce the affidavits." Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985). "A private investigator may submit an affidavit attesting to the juror misconduct, but . . . such affidavit will fail if it does not contain 'a recitation that the investigator asked the jurors to make an affidavit as to the misconduct and they refused to do so.'" Harmon v. State, 889 S.W.2d 521, 525 (Tex. App.-Houston [14th Dist.] 1994, writ ref'd) (quoting Smith v. State, 437 S.W.2d 835, 839 (Tex. Crim. App. 1969). In addition to timely filing a motion for new trial, "the defendant must present the motion for new trial to the trial court within 10 days of filing it." Tex. R. App. P. 21.6. The term "present", for purposes of rule 21.6, "means the record must show the movant for a new trial sustained the burden of actually delivering the motion for a new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court." Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998) (en banc). The State contends that Guerrero failed to "present" his motion for new trial in accordance with TRAP 21.6. It argues that there is nothing in the record indicating that the trial court was on actual notice that Guerrero desired a hearing on his motion for new trial. The motion for new trial did contain a request for an evidentiary hearing. Contrary to the State's assertion, the record does contain a Certificate of Presentment signed by the trial court. The certificate states that Guerrero presented the motion to the trial court within the required 10 day period from the date of filing.
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Therefore, Guerrero properly filed and presented his motion for new trial and request for an evidentiary hearing. Despite Guerrero's compliance with the requirements of TRAP 21.6, we believe that the trial court did not abuse its discretion in refusing to hold an evidentiary hearing on the motion for new trial. Because the affidavits of the private investigators did not contain the necessary recitations, their affidavits failed, and the only proper affidavit before the trial court was that of the juror, Heather Cherry. See Harmon, 889 S.W.2d at 525. Although the motion raised matters extrinsic to the record, the supporting affidavit of Ms. Cherry did not contain sufficient facts demonstrating reasonable grounds for holding that relief should be granted. See Rodriguez, 12 S.W.3d at 586. First, with respect to jury misconduct, the affidavit does allege that misconduct occurred. Nowhere in the affidavit, however, does it state that the alleged misconduct influenced the jury's verdict. The affidavit also alleges outside influence caused by Guerrero's family. Again, however, it does not state any grounds for believing that this affected the jury's verdict. Although Ms. Cherry stated that she felt intimidated by Guerrero's family, she does not allege that she or any other juror found the defendant guilty because of it, or that it had any role in their deliberations. The trial court did not err in refusing to hold an evidentiary hearing on Guerrero's motion for new trial. See id. B. Motion for New Trial "A decision to grant or deny a motion for new trial based on jury misconduct is in the sound discretion of the trial court." In re J.F., Jr., 948 S.W.2d 807, 810 (Tex. App.-San Antonio 1997, no writ). "Absent a clear abuse of discretion, we are bound by the trial court's determination." Id. The Texas Rules of Appellate Procedure set forth a number of instances in which a criminal defendant must be granted a new trial. Tex. R. App. P. 21.3. Among these, a defendant must be granted a new trial "when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial." Tex. R. App. P. 21.3(g). "A movant for new trial based on jury misconduct must prove that (1) the misconduct occurred and (2) the misconduct resulted in harm to the movant." Gomez v. State, 991 S.W.2d 870, 871 (Tex. App.-Houston [1st Dist] 1999, pet. ref'd) (citing Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981)). A criminal defendant "is entitled to have his guilt or punishment determined without reference to any outside influence." Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984) (en banc). A "threat to the safety of a juror" is an example of improper outside influence. Buentello v. State, 826 S.W.2d 610, 613 (Tex. Crim. App. 1992) (en banc). However, "[c]onduct from bystanders which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows a reasonable probability that the conduct interfered with the jury's verdict." Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985) (en banc). Guerrero is not entitled to a new trial based on juror misconduct or outside influence. He has failed to prove that misconduct or outside influence occurred or that such resulted in harm to him. See Gomez, 991 S.W.2d at 871. Even if the allegations in Heather Cherry's affidavit are taken as true, there is nothing in the affidavit indicating how Guerrero was harmed by jurors discussing the case during the trial. The affidavit also fails to show that the alleged outside influence interfered with the jury's verdict. See Landry, 706 S.W.2d at 112. Therefore, Guerrero has not shown that the jury engaged in such misconduct that he did not receive a fair and impartial trial. See Tex. R. App. P. 21.3(g). Ineffective Assistance of Counsel In his third point of error, Guerrero argues that he received ineffective assistance of counsel at trial. In particular, he alleges four instances in which trial counsel was ineffective: (1) failure to file a motion for continuance, despite being unprepared to proceed to trial; (2) failure to conduct an adequate voir dire of the jury panel; (3) failure to adequately object to, or minimize the impact of extraneous offense evidence; and (4) failure to request a continuance to explore newly uncovered Brady material. In order for a defendant to prevail on a claim of ineffective assistance of counsel, he has the burden to prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., his assistance fell below an objective standard of reasonableness; and (2) appellant was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must overcome the strong presumption that counsel's conduct might be
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considered sound trial strategy. Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995). Claims of ineffective assistance of counsel must be affirmatively demonstrated in the record. In re S. P., 9 S.W.3d 304, 306 (Tex. App-San Antonio 1999, no pet.). We strongly presume that counsel's conduct lies within the wide range of reasonable representation, and we examine the totality of the representation to determine the effectiveness of counsel. Id. A. Failure to File Continuance / Unprepared for Trial Guerrero first contends that trial counsel was ineffective in being unprepared to proceed to trial and not filing a motion for continuance. He argues that the record reflects that trial counsel failed to consult with him on matters of vital importance, failed to take full advantage of pretrial hearings, and failed to adequately prepare to address extraneous offense evidence. The State responds that the record does not show that trial counsel was unprepared. The record does not affirmatively demonstrate that Guerrero's trial counsel was unprepared to proceed to trial. See Chambers, 903 S.W.2d at 306. Trial counsel filed sixteen pretrial motions before the case went to trial. There is no evidence to suggest that trial counsel did not consult with Guerrero on important matters. On the day of trial, counsel argued in open court with the State over extraneous offense evidence. Guerrero has failed to show that trial counsel's performance in this area fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. B. Failure to Conduct Adequate Voir Dire of the Jury Guerrero next contends that trial counsel was ineffective in not conducting an adequate voir dire of the jury. He argues that trial counsel failed to make efficient use of the time allotted during voir dire and failed to address relevant areas of inquiry with the jury. Guerrero also alleges that trial counsel failed to discover, object to, or call for a mistrial on the basis of a panel member who was struck for cause actually serving on the jury. The record does not support Guerrero's contentions. First, trial counsel used approximately the same amount of time on voir dire as did the State. Second, trial counsel inquired into a number of relevant areas on voir dire including assessing probation as punishment, domestic violence, and bias towards police. In any event, there is nothing in the record to indicate that trial counsel's use of time and choice of questioning during voir was nothing more than sound trial strategy. See Chambers, 903 S.W.2d at 33. Guerrero's contention that a panel member who was struck for cause actually served on the jury is incorrect. Two jurors on the initial panel had the same last name, Ervin Moczygemba and Flavian Moczygemba. Ervin Moczygemba had been prosecuted for aggravated assault by the same district attorney handling Guerrero's case. He was properly challenged for cause by the State and dismissed by the trial judge. Flavian Moczygemba served on the jury that convicted Guerrero. She was not struck for cause by either Guerrero or the State. Guerrero has failed to show that trial counsel's performance in this area fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. C. Failure to Adequately Object to or Minimize the Impact of Extraneous Offense Evidence Guerrero further contends that trial counsel was ineffective in failing to adequately object to or minimize the impact of extraneous offense evidence. He argues that trial counsel had a duty to either object to or request a limiting instruction regarding evidence offered by the State of past physical and sexual assaults Guerrero committed against the complainant. Guerrero cites Brown v. State, 974 S.W.2d 289, 293 (Tex. App.-San Antonio 1998, pet. ref'd), for the proposition that "extraneous offenses are inherently prejudicial and when counsel fails to object to numerous extraneous and prejudicial matters, counsel is ineffective." "When the record contains no evidence of the reasoning behind trial counsel's action, we cannot conclude counsel's performance was deficient." Ryan v. State, 937 S.W.2d 93, 98 (Tex. App.-Beaumont 1996, pet. ref'd) (citing Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994)). "A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions." Id. Guerrero's trial counsel did seek a motion in limine regarding extraneous offense evidence before the trial began. There is nothing in the record, however, to indicate why she later chose not to object to or request a limiting instruction regarding such evidence. See id. As a result, we cannot conclude that counsel's performance was deficient. See id.

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The case cited by Guerrero, Brown v. State, is not on point. In Brown, the State offered evidence of numerous extraneous offenses which were completely unrelated to the charged offense. Brown, 974 S.W.2d at 293. Furthermore, the defense counsel in Brown "opened the door" to the unrelated offenses by eliciting testimony from the defendant during direct examination. Id. Here, the State offered evidence of previous occasions on which Guerrero had either physically or sexually assaulted the complainant. It is important to remember that Guerrero was indicted for aggravated assault with a deadly weapon in retaliation. As a necessary element of the offense, the State had to prove that Guerrero had retaliated against the complainant for reporting the past sexual assault. As the trial court correctly noted, the State had to offer evidence of the prior extraneous offense. Unlike Brown, Guerrero's trial counsel did not "open the door" to such evidence. Nothing in the record overcomes the strong presumption that trial counsel's conduct in this area might be considered sound trial strategy. See Chambers, 903 S.W.2d at 33. D. Failure to Request a Continuance to Fully Explore Newly Uncovered Brady Evidence Guerrero argues that trial counsel was ineffective in not requesting a continuance to fully explore newly uncovered Brady evidence. He contends that as a result of not requesting a continuance, trial counsel was unprepared to adequately address the evidence. Towards the end of the trial, the State informed the court and trial counsel of newly discovered exculpatory evidence. The evidence consisted of testimony from of an EMS technician who corroborated Guerrero's initial statement to police concerning the incident that lead to his indictment. Due process requires the State to disclose exculpatory evidence that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). A conviction must be reversed if the prosecution actively suppresses evidence or negligently or inadvertently fails to disclose evidence which may exonerate the defendant. Id. Guerrero does not raise a direct point of error alleging a Brady violation. It is undisputed that the State disclosed the exculpatory evidence, and there is nothing in the record to indicate that the State intentionally or negligently failed to disclose the evidence until the end of trial. Guerrero fails to cite any case law, nor were we able to find any, holding that trial counsel is per se ineffective in not requesting a continuance to investigate Brady evidence. The EMS technician was called to testify during the trial. Trial counsel examined the technician and inquired into all relevant areas of her testimony. The record does not show that trial counsel was unprepared to question the witness. Guerrero has failed to demonstrate that trial counsel's performance in this area fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. Reasonable Doubt Instruction / Extraneous Offense Evidence In his fourth point of error, Guerrero contends that the trial court committed reversible error in failing to provide the jury with a reasonable doubt instruction as to the consideration of extraneous offense evidence, despite counsel's failure to request such instructions. He argues that the trial court has an independent obligation to submit such an instruction on its own, even in the absence of a request. A trial court is required to give the jury a reasonable doubt instruction regarding the consideration of extraneous offense evidence. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Such an omission is one that does not require a timely request or objection at trial, and may be raised for the first time on appeal. Id. at 483. Failure to include such an instruction, however, is not automatic reversible error, and requires that a harm analysis be conducted under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (en banc). Under Almanza, "if no proper objection is made at trial . . . the accused must claim that the error was 'fundamental' [and] he will obtain a reversal only if the error is so egregious and created such harm that 'he has not had a fair and impartial trial.'" Id. at 171. "[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. Although the trial court erred in not providing a reasonable doubt instruction regarding the extraneous offense evidence, such error does not meet the egregious harm standard. See id. Guerrero alleges that he suffered "grave" harm as a result of the trial court's error. He fails to identify, however, exactly how he was harmed. Any potential harm was minimal in light of the fact that the jury convicted Guerrero of the lesser included offense of aggravated assault with a
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deadly weapon and not the charged offense of aggravated assault with a deadly weapon in retaliation. Therefore, the jury disregarded much of the extraneous offense evidence regarding the claim of retaliation. The record does not demonstrate that Guerrero was denied a "fair and impartial trial." See id. Conclusion The judgment of the trial court is affirmed. Phil Hardberger, Chief Justice DO NOT PUBLISH

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