Vasquez v. State
| Decision Date | 27 August 2020 |
| Docket Number | No. 08-17-00187-CR,08-17-00187-CR |
| Parties | JESSE VASQUEZ Appellant, v. THE STATE OF TEXAS Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 409th District Court of El Paso County, Texas
(TC# 20130D02392)
OPINIONA jury convicted Appellant Jesse Vasquez of the felony offenses of capital murder and aggravated assault with a deadly weapon. The trial court sentenced Appellant to confinement for life and to ten years' confinement, respectively. On appeal, Appellant complains in three issues of prejudice resulting from the loss of a portion of the reporter's record, prejudice arising from the State's alleged Brady1 violation, and error emanating from the trial court's refusal to give Appellant's four requested jury instructions. We affirm the trial court's judgment.
Factual Background
In a multi-count indictment, Appellant was charged with the offense of capital murder for killing Miriam Aguirre by cutting her neck with a knife while committing or attempting to commitburglary of a habitation (Count I), and with the offense of aggravated assault with a deadly weapon for stabbing Enrique Contreras with a knife or a machete (Count III).2 Although we present a detailed discussion of the evidence and procedural background as relevant to each issue below, we briefly recite the background facts.
Enrique Contreras first met Miriam Aguirre and her roommate, Rocio, at a birthday party held at Enrique's cousin's home on or about February 16, 2013. On that evening, Miriam asked Enrique to answer her phone and inform the male caller that she was not available. Enrique complied with Miriam's request and then ended the call.
At about 9:00 p.m. that evening, Walmart surveillance cameras recorded a man as he purchased a machete, a case of Budweiser beer, an air gun and ammunition, a cooler, and a twin-sized inflatable bed. The recordings and photographs taken from the recordings were admitted in evidence and published to the jury.
About a week later, on February 22, 2013, Enrique and Miriam saw each other again at Rocio's birthday party, which was also celebrated at the home of Enrique's cousin. At about 3:00 a.m. on February 23, 2013, Miriam drove Rocio—who was drunk—and Rocio's children back to the apartment in Rocio's minivan, and Enrique followed in Miriam's car. Enrique dropped his red Samsung phone between the seats in Miriam's car. He decided that he would retrieve his phone the next morning, locked the car, and went to the apartment with Miriam. After they arrived at the apartment, Appellant—with whom Miriam had been in a dating relationship—kicked on the door of the apartment and entered, cut Miriam's throat, and repeatedly stabbed Enrique.
Police located Appellant's dark-colored SUV and inside found blood, Enrique's cell phone, Miriam's credit card, an empty air rifle package, an empty machete package, a Budweiser beer case, an air mattress, a knife, and forensic evidence. That afternoon, Appellant surrendered at El Paso Police Department headquarters.
DISCUSSION
In his first issue, Appellant asserts that he is entitled to a new trial because a portion of the reporter's record is lost and is necessary to his appeal. The State counters that because Appellant has failed to show that the missing record is necessary to the disposition of any specific point of error, he is not entitled to reversal and a new trial.
Appellate Rule 34.6(f) establishes when an appellant is entitled to a new trial due to the loss or destruction of the reporter's record. TEX. R. APP. P. 34.6(f). Under Rule 34.6(f), an appellant is entitled to a new trial:
Id.; see Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003) ().
Because we examined this issue before the parties filed their appellate briefs, we set out the following procedural history. After Appellant initiated the appeal of his convictions, we ordered the trial court to conduct a hearing to determine the status of the reporter's record, a portion of which had not been timely filed. During the hearing, the trial court admitted in evidence the State's and Appellant's written stipulations, which in part stipulated that a significant portion of the record was lost or destroyed through no fault of Appellant and that the parties could not agree on the record. The parties also stipulated that the missing portion of the record includes Appellant's pleas to the charges against him, the opening statements of the parties, as well as the direct and cross-examination—and any further redirect or cross-examination—of El Paso Police Officer Ana Artalejo, the first patrol officer to respond to the scene, and Officer Ruben Villareal, a crime scene officer.3
The prosecutor in the case, James Montoya, testified that both the State and Appellant were allowed ten to fifteen minutes to provide opening remarks and that over 100 exhibits had been introduced into evidence through Officers Artalejo and Villarreal.4 Montoya recalled that the trial court had overruled defense counsel's hearsay objection to Officer Artalejo's testimony regarding the statement of a frantic, very-scared woman with bloody hands who was attempting to leave with her children in a van when Officer Artalejo arrived. Officer Artalejo instructed the woman—Rocio Dominguez—to wait, attempted to enter the apartment doorway which was blocked by Miriam'sbody, and returned to Dominguez who informed her that Miriam's ex-boyfriend had "hit her," was in possession of a machete or a knife, and had departed by running down an alley. Montoya explained that the State had laid the foundation for an excited utterance exception to the hearsay rule regarding this evidence and agreed that no other attempt was made by defense counsel to impeach Officer Artalejo. Montoya also noted that voir dire had begun on a Friday and that the jury had returned its verdicts the following Friday. Appellant's counsel cross-examined Montoya and both parties provided arguments to the trial court.
In its responsive argument at the conclusion of the hearing, the State noted, "We still don't have a specific point of error and that needs to be stated today." Appellant did not respond to the State's observation and did not identify any specific point of error to the trial court showing that the missing portion of the record was necessary to the appeal's resolution. TEX. R. APP. P. 34.6(f)(3).
The record of those proceedings and the trial court's findings of fact and conclusions of law—including the trial court's conclusion that the missing portion of the record is necessary to Appellant's appeal—were filed in this court, and at our request the parties filed letter briefs. In his letter brief, Appellant declared, "The lost record is necessary to [Appellant's] appeal because each witness is important" and noted that the officers' missing testimony was necessary both to the trial and to the appeal. He also argued that the lost record was necessary to his appeal "because 120 exhibits were admitted" and "it is unknown if each and every one of the exhibits were offered and admitted" properly or erroneously or whether other error occurred. We construed Appellant's letter brief, in which he sought a new trial due to the loss of a portion of the record under rule 34.6(f), as a motion.
We reviewed de novo the trial court's determination that the missing portion of the record is necessary to Appellant's appeal and considered the trial court record of the hearing as well as the parties' subsequently filed letter briefs. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (). We concluded that Appellant had not shown that the missing record is necessary to the appeal's resolution and explained our reasoning in a written opinion.
In our opinion on the motion, we noted that rule 34.6(f)(3) is essentially a harm analysis. In response to Appellant's claim that the missing record is necessary to his appeal because the testimony of Officers Artalejo and Villareal was important and necessary to the trial and appeal, we noted that a showing that a witness's testimony is significant does not serve as a substitute for a showing that the missing record is necessary to the resolution of the appeal. We explained that although a witness's testimony may be particularly significant, if an appellant fails to show that error occurred during the testimony or that the witness's testimony is needed to resolve a claim of error raised on appeal, then the record of the testimony is not necessary to resolution of the appeal under Rule 34.6(f)(3).
In response to Appellant's assertion that the missing record is necessary to his appeal because 120 exhibits were introduced through one or both police officers, we observed that Appellant had...
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