Guerra v. State

Decision Date05 June 2013
Docket NumberNo. 11–11–00174–CR.,11–11–00174–CR.
Citation396 S.W.3d 233
PartiesJuan Jose GUERRA, Appellant v. STATE of Texas, Appellee.
CourtTexas Court of Appeals

OPINION TEXT STARTS HERE

E. Jason Leach, Law Office of E. Jason Leach, Odessa, TX, for Appellant.

Teresa J. Clingman, District Attorney, Carolyn D. Thurmond, Assistant District Attorney's Office, Midland County Courthouse, Midland, TX, for Appellee.

Panel consists of WRIGHT, C.J., McCALL, J., and HILL.1

OPINION

JOHN G. HILL, Justice.

Juan Jose Guerra appeals his conviction by a jury of the offense of unlawful use of a criminal instrument with the intent to commit the offense of aggravated kidnapping or aggravated sexual assault. The jury also found that Guerra used or exhibited a deadly weapon, a firearm, during the commission of the offense. The jury assessed his punishment at twenty years in the Texas Department of Criminal Justice, Institutional Division. Guerra asserts in three issues on appeal that (1) the trial court erred when it denied his motions to suppress evidence obtained from the initial stop of his vehicle and subsequent detention, (2) the evidence is insufficient to support his conviction, and (3) the trial court erred when it denied his requested jury instruction at the conclusion of the guilt-innocence phase of the trial. We affirm.

Guerra contends in Issue Two that the evidence is insufficient to support his conviction. We review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010); and Polk v. State, 337 S.W.3d 286, 288–89 (Tex.App.-Eastland 2010, pet. ref'd). Under this standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781;Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010).

Section 16.01(a) of the Texas Penal Code provides that a person commits an offense if:

(1) the person possesses a criminal instrument or mechanical security device with the intent to use the instrument or device in the commission of an offense; or

(2) with knowledge of its character and with the intent to use a criminal instrument or mechanical security device or aid or permit another to use the instrument or device in the commission of an offense, the person manufactures, adapts, sells, installs, or sets up the instrument or device.

Tex. Penal Code Ann. § 16.01(a) (West Supp.2012).

The statute defines “criminal instrument” as “anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specially designed, made, or adapted for use in the commission of an offense.” Id. § 16.01(b)(1).

Nancy Chiszar testified that she is a Deportation Removal Assistant under the Immigration Customs Enforcement (ICE) Division of the United States Department of Homeland Security. She indicated that between 8:30 or 9:00 p.m. on April 28, 2010, as she and her husband were coming back from having dinner, she noticed a gray vehicle coming out of a parking lot near her place of employment. Chiszar said she became concerned when the gray vehicle, driven by a single male, pulled in behind her and her husband and, after they pulled into the parking lot of her office, continued down the street at a very slow speed. She asserted that she was concerned because two or three weeks earlier a fellow agent was followed home.

Chiszar testified that she was also concerned because of the BOLO alerts, which were “be-on-the-lookouts” her office received from its El Paso headquarters. She noted that an employee of the consulate had just been shot in Ciudad Juarez. Chiszar also mentioned that there were Latin Kings in the area.

Chiszar testified that she and her husband, René Arturo del Villar, pulled out of her office parking lot and followed the vehicle. She said the vehicle made a stop and then pulled over to the curb. She indicated that they passed the vehicle when it pulled over.

Chiszar expressed her concern that, because the windows of the vehicle were not tinted, it might be a rented vehicle. She said she was concerned that maybe the occupant of the vehicle was observing her office building and wanted to retaliate since we had this previous information that had happened.” Chiszar related that, when she and her husband returned to her office parking lot, the vehicle followed behind them and returned to the parking lot where they had first observed it.

Chiszar noted that the vehicle was parked facing her building. She said that, when she “got down,” the driver of the vehicle turned his bright lights on. She indicated that she got the attention of another agent, Tim Stone, by banging on the back door of her building.

Chiszar testified that she told Agent Stone about the vehicle and asked him to stop it and find out what was going on. She indicated that she literally pulled him out of the building. She said that the vehicle left the parking lot when she pointed it out to Agent Stone.

Chiszar testified that Agent Stone followed the vehicle after it exited the parking lot and turned north. She noted that the building where the vehicle had been parked was vacant, without any business in the building. She also pointed out that the vehicle was not far away when it turned on its bright lights. She identified Guerra as the man whom Agent Stone stopped. She said she called the Midland Police Department for backup.

On cross-examination, Chiszar acknowledged that there was nothing on her office building that would show that it is a government building. She also acknowledged that she did not know how long the vehicle had been parked when she first saw it. She agreed that there was nothing about the vehicle she saw exiting the parking lot connecting it to a prior incident in which someone had been followed home. She acknowledged that there was nothing on her vehicle to indicate that she was an employee of the Immigration Service or that her husband was a border patrol agent and that neither she nor her husband was wearing anything that would indicate their employment. She also stated that Agent Stone was wearing a T-shirt and jeans, nothing that would identify him as an employee of the Immigration Service. Chiszar clarified that there were no “be-on-the-lookouts” for Guerra's vehicle and that there were no outstanding warrants for his arrest.

On redirect examination, Chiszar testified that, in connection with a previous job in law enforcement, she had training regarding terrorism and human trafficking. She stated that she had been trained to watch for such things as unusual driving, slow driving, and stopping of a vehicle. She noted that Agent Stone, although not wearing a uniform, was wearing a badge on his belt. She also mentioned that Agent Stone's vehicle was equipped with lights and a siren. Chiszar noted that, when she noticed Guerra's vehicle near the Abundant Life Church, there were ten to fifteen children outside playing.

René Arturo del Villar, Chiszar's husband, testified that he is an agent with the United States Border Patrol. He indicated that Guerra's vehicle drew his attention because it was the only vehicle in the lot adjacent to the office of Mark Payne and Absolute Dance. He said that the driver of the vehicle was looking multiple times at the Alpha Cheer Dance and Miller's Gymnastics building. He described the vehicle as being silver. He said that, after leaving the parking lot, Guerra was driving very slowly, about five to ten miles per hour. He noted that the driver was observing some children in the area of Miller's Gymnastics and Alpha Cheer Dance.

Del Villar said he followed the vehicle and, upon checking its registration, learned that it was registered in Big Spring, Texas. He noted that, at one point, he saw the driver of the vehicle on the side of the road watching four or five children, ages ten to fourteen, who were at the Abundant Life Church.

Del Villar testified that, after he and the vehicle had both returned to the parking lots where they had started, he got out of his vehicle and faced the other vehicle. He indicated that the other driver flashed his lights on and off at him. He said that, after his wife had contacted Agent Stone, he pointed out the other vehicle. He related that, when he pointed out the vehicle, it exited the parking lot at a faster rate of speed than it had entered. According to del Villar, Agent Stone got in his vehicle and chased down the vehicle or tried to catch up.

Del Villar testified that, when he talked to Guerra after Guerra had been stopped by Agent Stone, Guerra told him that he was in the area looking for houses because he was thinking of moving his family from Big Spring. He said Guerra said nothing when he asked him what houses he was looking at in that industrial area. He indicated that, when Agent Stone asked Guerra what he was doing in the area, Guerra said he was looking for Midland Christian Academy. Del Villar testified that, to his knowledge, there is no such school in Midland. He identified Guerra as the individual stopped by Agent Stone.

Del Villar testified that he observed a bag containing condoms, a map, and some pills in Guerra's vehicle. He noted that he also saw a jacket with duct tape on both arms. Del Villar acknowledged that, in his written report, he did not mention there being any children in the area of Alpha Cheer. He acknowledged that Guerra did not approach the children, call out to the children, motion to them as if he wanted them to approach him, or interact with them in any other way. He also acknowledged that he did not mention in his written report that Guerra flashed his lights on and off. He insisted that he never arrested or detained Guerra in any...

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4 cases
  • Medina v. State
    • United States
    • Texas Court of Appeals
    • 8 Agosto 2013
    ...where there is evidence of adaptations or modifications that render the item conducive to a crime. See Guerra v. State, 396 S.W.3d 233, 241 (Tex.App.-Eastland 2013, pet. granted) (evidence that homemade device consisting of sock and bungee cord had been specially adapted as gag for purpose ......
  • Guerra v. State
    • United States
    • Texas Court of Criminal Appeals
    • 18 Junio 2014
    ...detention. The court of appeals overruled that claim and ultimately affirmed the judgment of the trial court. Guerra v. State, 396 S.W.3d 233 (Tex.App.-Eastland 2013). We granted appellant's petition for discretionary review, and we now affirm the judgment of the court of appeals.I. Backgro......
  • Mayonada-Hurtado v. State, 14-12-00384-CR
    • United States
    • Texas Court of Appeals
    • 8 Agosto 2013
    ...where there is evidence of adaptations or modifications that render the item conducive to a crime. See Guerra v. State, 396 S.W.3d 233, 241 (Tex. App.—Eastland 2013, pet. granted) (evidence that homemade device consisting of sock and bungee cord had been specially adapted as gag for purpose......
  • United States v. Rodriguez-Treto
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 22 Julio 2014
    ...a reasonable suspicion that such person is engaged in a state felony. See Tex. Code Crim. Proc. Art. 2.122(a)(3); Guerra v. State, 396 S.W.3d 233, 242 (Tex. App. 2013), aff'd, --- S.W.3d ---, 2014 WL 2742833, at *5 (Tex. Crim. App. June 18, 2014). Rodriguez-Treto asserts that the facts did ......
2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • 4 Mayo 2021
    ...246 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) 11:810 Grissam v. State 267 S.W.3d 39 (Tex. Crim. App. 2008) 1:55 Guerra v. State 396 S.W. 3d 233 (Tex. App.—Eastland 2013, pet. granted) aff’d , 432 S.W.3d 905 (Tex. Crim. App. 2014) 5:10 Guerrero v. State 820 S.W.2d 378 (Tex. App.—Corpu......
  • Criminal instruments
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • 4 Mayo 2021
    ...immediate accessories, which held pornographic files, were “criminal instruments” under the facts of that case. But see Guerra v. State , 396 S.W.3d 233, 241 (Tex. App-Eastland 2013, p.d.r. granted), which states: “In Fronatt v. State , 543 S.W.2d 140, 142 (Tex.Crim.App.1976), the Texas Cou......

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