Guerrero v. State

• Decision Date: 12 November 1986
• Docket Number: No. 3-85-326-CR,3-85-326-CR
• Citation: Guerrero v. State, 720 S.W.2d 233 (Tex. App. 1986)
• Parties: Fred Cantu GUERRERO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 233

720 S.W.2d 233

Fred Cantu GUERRERO, Appellant, v. The STATE of Texas, Appellee.

No. 3-85-326-CR.

Court of Appeals of Texas Austin.

Nov. 12, 1986.

Rehearing Denied Dec. 10, 1986.

Roy E. Greenwood, Austin, for appellant.

Ronald Earle, Dist. Atty., Ashton Cumberbatch, Jr., Asst. Dist. Atty., Austin, for appellee.

Before SHANNON, C.J., and BRADY and CARROLL, JJ.

BRADY, Justice.

Appellant was convicted of murder by a jury and punishment assessed at 45 years confinement in the Texas Department of Corrections, upon an affirmative finding of use of a deadly weapon. The case against the appellant consisted solely of circumstantial evidence. Upon a review of the record, this Court concludes a reasonable hypothesis of accidental death could be drawn from the evidence and that the State failed to disprove this hypothesis. We will reverse the judgment.

Appellant and the deceased had been living together for several months. At approximately eight o'clock on the evening of March 2, 1985, the victim, whom the appellant called his wife, was fatally injured when a small caliber pistol discharged striking her in the face. These events occurred at an apartment shared by the victim and appellant. The only other persons present at the scene were two children, ages one and two years. According to neighbors in the adjoining apartments, immediately after a shot was heard appellant came running out of his apartment to summon help stating his wife had been shot. He was carrying the two small children in his arms and, according to the witnesses, was visibly emotionally distraught.

Police were summoned immediately, and appellant was not able to explain what happened, stating his back was turned when the gun discharged. Appellant further stated he had just returned to the apartment after attempting to collect some money from a friend. After riding his bicycle home, he went upstairs to the apartment and knocked on the door. The deceased inquired who it was and had to unlock two or three locks to let him in. When he entered their home he saw his wife's gun laying on the coffee table and scolded her for leaving it in reach of the children. He then picked up the gun and placed it on the top portion of the couch. At the time she was shot, appellant stated he was pushing his bicycle towards the kitchen and only turned to look at his wife when he heard the gun discharge.

There was also testimony by the neighbors concerning the events just before and after the shooting. The occupant of the apartment next door testified she heard some banging and voices next door and concluded it was an argument because arguments were a frequent occurrence around the apartment complex. A witness from the other adjoining apartment stated he heard babies crying and the words "no Babe, please" just after the shot rang out; his wife, however, testified the statement was made before the shot. Significantly, these and other witnesses all agreed the appellant emerged from the apartment almost immediately after the shooting and sought help for the victim.

Police who arrived at the scene just after emergency personnel had removed the victim testified that large splatters of blood were left on the wall. One officer, trained in blood splatter analysis, stated some of the blood came from the victim's head hitting the wall, and some could have been spread by emergency workers, but that the rest of the blood fell from her as she collapsed. Later expert testimony indicated the gun was against the victim's face when it discharged. It is significant to note that although numerous persons saw and conversed with appellant immediately after the shooting, there was no testimony or any other evidence of blood on his clothes.

In addition to the neighbors and officers on the scene, several experts testified establishing that: 1) no identifiable fingerprints were found on the gun; 2) the gun functioned properly but it was possible it could have discharged accidently; 3) tests for gun powder traces on both appellant's and victim's hands were negative but that this was common for guns of that type; 4) a small powder burn was found on the victim's right index finger; 5) that the trajectory of the bullet was almost vertical; 6) and there were bruises on the victim's face but that they could have been caused in the fall. Additional testimony revealed one of the bruises pre-dated the fall but was probably a "hickey" or mark of passionate affection.

There was also evidence of prior statements by appellant concerning the incident. This evidence consisted of testimony by the victim's relatives who stated that at the funeral, appellant did not want to discuss what happened, saying only that he would never hurt her and that he would tell them about it later. A friend of the victim, Ms. Adams, related that appellant...