Guerra v. State

• Decision Date: 04 May 1988
• Docket Number: No. 69081,69081
• Parties: Ricardo Aldape GUERRA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 453

771 S.W.2d 453

Ricardo Aldape GUERRA, Appellant, v. The STATE of Texas, Appellee.

No. 69081.

Court of Criminal Appeals of Texas En Banc.

May 4, 1988.

Certiorari Denied July 3, 1989. See 109 S.Ct. 3260.

Michael B. Charlton, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and William J. Delmore, III and Robert Moen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of the capital murder of Houston police officer James Harris. Punishment was assessed at death.

The evidence at trial showed that on the evening of July 13, 1982, Officer Harris was patrolling in a lower middle class Mexican-American neighborhood in Houston. At approximately 10:00 p.m., he was informed by a pedestrian, George Brown, that a black car had only moments before attempted to run over Brown and his dog. Harris, acting on Brown's tip, tried to find the black car. Less than a minute later, Harris came upon a black Buick with a red vinyl top stalled at the intersection of Edgewood and Walker. Harris stepped out of his vehicle, leaving the door open, and spoke to the occupants of the Buick. Appellant, who was the driver, and his companion, Roberto Flores, approached Harris. One of the two then shot Harris three times, the bullets entering the left side of his face and exiting on the right. Three spent nine millimeter cartridges were subsequently found beside Harris' vehicle, and three bullets fired from a Browning nine millimeter pistol were recovered from a house in the direction in which the slugs that killed Harris would have traveled. Harris died from his wounds. Appellant and Flores then fled on foot in an easterly direction down Walker, with one man on the north side of the street firing his weapon and the other man on the south side of the street firing his weapon.

At this time of this incident Jose Armijo and his two children, ten year old Jose, Jr., and two year old Lupita, were driving west on Walker. As they came upon the black Buick and the patrol car blocking the intersection Jose, Sr. stopped the car. When the shots rang out which killed Officer Harris, Jose, Sr. attempted to back the car up and escape from appellant and Flores who were running in the direction of the Armijo vehicle. Unfortunately, before Jose, Sr. could back the car up far enough to turn around, a shot was fired into his car from the north side of the street and he also was fatally wounded. Evidence showed that Jose, Sr. was killed by a bullet from a Browning nine millimeter pistol. Two nine millimeter cartridges were found on the north side of the street. On the south side of the street, officers found two cartridges from a .45 caliber pistol.

About an hour and a half later, at 11:30 p.m., Officer Larry Trepagnier and Officer Mike Edwards were searching for the suspects several blocks away from the scene of the previous shootings. As they shined their flashlights into an open garage, gunfire erupted from the garage. Officer Trepagnier, although wounded five times, returned fire and attempted to pursue the shooter who ran around the side of a house. Other officers, hearing the shooting, quickly ran to Trepagnier's aid and killed Flores. Appellant was discovered nearby hiding under a trailer. Under Flores' body was found a Browning nine millimeter pistol. Testing showed that this weapon killed Jose, Sr. It could not be positively shown that this was the weapon that had killed Harris. Also found on Flores were a magazine containing 20 additional nine millimeter rounds. Inside Flores right front pants pocket were eleven more loose rounds of nine millimeter ammunition. Tucked inside the waistband of Flores' pants was Harris' service revolver. Appellant was not armed when found; however, some two feet from where appellant was lying officers found a red bandana wrapped around a .45 caliber pistol. Ballistics tests showed that this pistol had fired the .45 cartridge casings found on the south side of Walker.

Authorities learned that the Browning nine millimeter pistol had been purchased by an individual by the name of Alfredo Montalbano from a store on June 19, 1982. Montalbano told authorities that Roberto Flores had approached him inside the store, gave him $550.00 and asked him to buy the gun. According to Montalbano he bought the gun and two boxes of nine millimeter ammunition and gave them to Flores.

The contested issue at trial was who had actually shot Officer Harris--appellant or Flores. Several people witnessed the events surrounding the shooting but their versions contradicted each other as to who actually fired the gun at Harris. One of the most damaging witness as to appellant was ten year old Jose Armijo, Jr. Jose Jr. testified that he was riding in the car with his father and sister. When his father turned down Walker and discovered that the street was blocked by the Buick and the patrol car, he stopped the car. Jose testified that the Buick was between his father's car and the police car. Officer Harris was beside the open door on the patrol car. Appellant and Flores both had their hands on the hood of the patrol car, with appellant standing closest to Harris. Jose, Jr. testified that as he watched, he saw appellant make a motion as if to scratch his back. Appellant then took out a gun and shot Officer Harris. Jose testified that he saw one of the men get the officer's gun. At that point Jose, Sr. began backing up his car. Both men began running down opposite sides of the street. Appellant ran down the north side of the street, next to Jose, Jr.'s side of the car. As appellant ran by their car, he aimed his gun into the car and shot Jose, Sr.

On direct examination, Jose, Jr. testified that he went to a lineup several hours after the shooting. Although he recognized appellant as the fourth man in the lineup, he did not tell the police because he was afraid that appellant might harm him if he told the truth. Jose, Jr. also testified that prior to the shootings he had seen appellant driving the Buick around the neighborhood. On cross-examination, Jose, Jr. admitted that he had given a sworn statement the night of the shooting in which he said that he did not know what the killer looked like. On redirect, Jose, Jr. testified that he was afraid to tell the truth immediately after the killings but he was telling the truth now when he identified appellant as the killer.

Patricia Diaz testified that she was driving her car down Walker the night of the shootings when she came upon the patrol car and the Buick blocking the intersection. She stopped some three feet behind the Buick. On direct, she testified that she noticed only one man standing besides the driver's side of the Buick pointing towards the police car. As she was pulling up she thought she heard the police officer yelling "Stop, stop." Diaz testified that at that point she became scared and looked down. Four shots immediately rang out. The next time she looked up she saw people from the neighborhood running towards the police car. She testified that appellant was the man she saw pointing towards the police car. On cross, Diaz testified that she did not see appellant actually shoot a gun, she just saw his stance immediately prior to the shots.

Fifteen year old Herlinda Garcia testified that she was walking down Walker with her baby and her sister Vera when they saw the Buick stop in the middle of the street. Appellant who was driving told the girls his car needed a boost and asked if they had any cables. At that point the police car pulled up behind the Buick. Officer Harris put a spot light on appellant, got out of his car and told the men to "Hold it." Appellant and his passenger got out of the Buick. Garcia testified that she then saw appellant pull something out of his pants and shoot the policeman. When she saw the policeman fall to the ground she started running down the south side of Walker. She saw appellant running down the north side of Walker. As she was running, she heard more gunshots behind her as if one of the men was chasing her. She ran until she reached her house. A few hours later, she also viewed a lineup at the Houston police department at which time she picked appellant as the man she had seen shoot Officer Harris. On cross-examination, Garcia testified that at the time of the shooting, Officer Harris was somewhere between the patrol car and the Buick. Roberto Flores had his hands on the top of the Buick and appellant had his hands on the hood of the patrol car. Appellant then reached into his pants and pulled something out of his pants and began shooting.

The testimony of Vera Flores, sister of Herlinda Garcia, was similar to that of her sister's. Vera testified that the man in the car asked if they had any cables. She told him no. She then began walking. Suddenly she heard someone say, "Stop." Thinking someone was talking to her, she looked back and saw Officer Harris standing beside his patrol car. The two men from the Buick went up to the police car. Suddenly, she heard a scared voice saying, "No, no," and then gunshots. Although she did not see a gun, she testified that appellant who had been the driver of the Buick fired the fatal shots. When quizzed by the prosecutor as to how she knew the driver had shot Officer Harris, she replied because she saw him start running down the street and fire additional shots. Vera related she then took cover behind a parked car. Vera related that she also viewed a lineup shortly after the shootings. Even though she recognized the fourth person in the lineup as appellant who had been the driver of the Buick, she did not tell the police because she was afraid. However, approximately a week after the incident, she told the prosecutors that she could identify appellant. On cross-examination, she too admitted that she had made a false sworn statement when she initially told the authorities that she...