Guerra v. State
| Decision Date | 20 April 2023 |
| Docket Number | 13-21-00419-CR |
| Parties | JUAN JIMENEZ GUERRA A/K/A JUAN GUERRA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do not publish. Tex.R.App.P. 47.2(b).
On appeal from the 404th District Court of Cameron County Texas.
Before Justices Benavides, Tijerina, and Peña
Appellant Juan Jimenez Guerra a/k/a Juan Guerra was convicted of continuous sexual abuse of a young child or children under fourteen, a first-degree felony, and sentenced to twenty-seven years' confinement.[1] See Tex. Penal Code Ann. § 21.02(b).
By three issues, Guerra contends that the trial court (1) "committed Brady violations and Michael Morton Act violations in failing to require production of a mobile phone used by one of the complaining witnesses"; (2) "erred by allowing a second outcry witness"; and (3) erred "in submitting jury instructions on Count 1 that did not require a unanimous verdict." We affirm.
At trial, the State informed Guerra that the mother of the child complainants told the State that one of the complainants said that she recorded Guerra sexually abusing her on a Motorola phone. In addition, the State disclosed to the defense that the police had taken custody of a phone that the complainants' grandmother had provided to them; however the phone's contents were not produced to Guerra when he requested them at trial. Guerra argues that by not ordering production of the contents of the phone in the State's custody, the trial court violated Brady and the Michael Morton Act. See Brady v. Maryland, 373 U.S 83, 87 (1963); see also Tex. Code Crim. Proc. Ann. art. 39.14. Specifically, Guerra argues that because he is innocent, the phone in the State's custody did not contain a video of him sexually abusing the complainant; therefore, he would have used that evidence to impeach the complainant's credibility.
To the extent that Guerra complains that the trial court had a duty under Brady to order the State to produce the contents of the phone, the record reflects that the trial court determined that there was no probable cause to issue a warrant to search the contents of the phone and that it was unknown who owned the phone, rulings that Guerra does not challenge on appeal.[2] Moreover, we note that Guerra appears to complain about the trial court's actions, but he also implicates the State by claiming a Brady violation.
In the trial court Guerra argued inconsistently about the owner of the phone. First, Guerra argued that the phone "was seized from his . . . house" and "[i]f anybody has custodial rights and nobody else comes forward [he] has custodial rights." Later, Guerra said, "And what . . . if, in fact, it is [the complainant's] phone [and] there is a text message of her to her boyfriend where we can prove it[']s her phone."
Guerra then asked the trial court to order a police officer to grant him access to the contents of the phone. Guerra said that access to the contents of the phone "would either prove or disprove her allegations, that's classic cross-examination and impeachment in the credibility of a witness." The State clarified that "the phone was provided in discovery," "was there the whole time," and "there is no way that we know that this phone belongs to the defendant." The State then informed the trial court that is "why it hasn't been broken into in the first place."
An officer told the trial court that someone mentioned that the grandmother had given the phone to the State because there were "nude photographs." The officer clarified that he did not see the phone and he did not know who told him about the nude photos.
The trial court said, "From what I understand everyone is saying, it[']s grandma [who] made comment of it but there is never and we don't know if the one that she held up was the one that even would have the nude photos." Guerra replied, "We do have a phone seized from [his] house." The trial court then determined that there was no probable cause "at this time to have any sort of search of anything done on that phone." Guerra said, The trial court replied, Guerra said, "Yes, sir." The trial court instructed, Guerra stated that he wished to make sure that he understood the trial court's instruction, and said, "It's my understanding the State is going to call [the complainant] first before I have a chance to bring the mother back or do you want me to bring the mother back before they" questioned the complainant. The trial court clarified that Guerra should put the mother on first outside the presence of the jury. Guerra responded, Guerra did not mention Brady or the Michael Morton Act.
After the complainant's mother testified about the complainant's claim that she recorded an incident with Guerra, in a hearing outside the presence of the jury, the trial court said, At this stage of the proceedings, Guerra claimed that either he owned the phone or that it belonged to the grandmother, his wife. He no longer stated that it belonged to the complainant. Instead, Guerra argued that he has a "superior claim to the ownership of this phone because of the fact that it was in the premises and residence." He consistently stated that he "waived" any privacy rights and that "as a defendant in this case, [he should be allowed] to go ahead and bring that phone and present it to the jury and whatever is inside and we choose to do so."
Guerra did not make a legal argument to support his assertion that he had a right to the phone's contents. He neither mentioned Brady nor the Michael Morton Act when he baldly asserted that the phone may belong to him and that he waived his rights. The State argued that nothing in the phone would be dispositive to case. The trial court stated it would not rule on the matter and needed some time to think about it. The record does not reflect that the trial court ever revisited the issue of the phone or made a further ruling.
On cross-examination and in the presence of the jury, Guerra asked the complainant if she recalled telling her mother that she made a recording of Guerra sexually assaulting her. The complainant replied, "Yes." The complainant did not recall what kind of phone she used, and she did not know when she made the recording. Guerra asked, "It's on a phone but you don't remember which phone?" The complainant said, "No because [the grandmother] had several phones." Guerra testified that he did not sexually abuse the complainant and that she was "lying" when she told the jury that she recorded him sexually abusing her.
Willful or inadvertent suppression of evidence favorable to appellant by the State constitutes a Brady violation. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). Without suppression of favorable evidence, there is no Brady violation. Id. "'Brady and its progeny do not require prosecuting authorities to disclose exculpatory information to defendants that the State does not have in its possession and that is not known to exist.'" Id. at 407 (quoting Hafdahl v. State, 805 S.W.2d 396, 399 (Tex. Crim. App. 1990)). Whether or not the defense requested the information, the State has a duty to reveal favorable evidence to the defense when the State becomes aware of the evidence. Id. Thus, a violation "occurs when a prosecutor 1) fails to disclose evidence 2) which is favorable to the accused 3) that creates a probability sufficient to undermine the confidence in the outcome of the proceeding." Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992).
The third part of the Brady test requires us to determine whether evidence contained on the phone was material, "i.e., created a probability sufficient to undermine the confidence in the outcome of the proceeding." See Thomas, 841 S.W.2d at 404. To make this determination we must examine the alleged error in the context of the entire record. Id. We determine materiality by examining the alleged error in the context of the entire record and overall strength of the State's case. Diamond v. State, 613 S.W.3d 536, 546 (Tex. Crim. App. 2020).
The complainant's grandmother gave a phone to a police officer prior to Guerra's trial that the State disclosed to Guerra during discovery. The prosecutor clarified that the grandmother alleged that the phone contained "nude pictures" that the complainant took of herself. In the trial court, although some evidence suggested that the phone may have belonged to the complainant's grandmother, this evidence was never conclusively established by the State or by Guerra, who posited that the phone belonged to him, the grandmother, or even the complainant. The complainant's grandmother testified at trial on behalf of Guerra. However neither the State nor Guerra asked the grandmother any questions about the phone in the State's custody. ...
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