NUMBER 13-22-00471-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANDREW SANCHEZ GUERRA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 437th District Court of Bexar County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Silva and Peña Memorandum Opinion by Chief Justice Contreras
Appellant Andrew Sanchez Guerra challenges his convictions for two counts of
sexual assault of a child and two counts of indecency with a child against his stepdaughter, J.W. 1 See TEX. PENAL CODE ANN. §§ 21.11, 22.011. 2 The jury assessed his
sentence at ten years’ imprisonment for the sexual assault counts and five years’
imprisonment for the indecency counts, and it recommended that the sentences be
suspended and that Guerra be placed on community supervision for ten years. The trial
court sentenced him in accordance with the jury’s findings, suspended the sentence, and
placed him on community supervision for ten years pursuant to its recommendation.
Guerra argues by four issues, which we construe as one, that the trial court erred when
it excluded certain text messages from evidence and limited testimony regarding the text
messages. We affirm.
I. BACKGROUND 3
Guerra married April Guerra in June 2008. He became the father figure to April’s
two daughters from a previous marriage, J.W. and Jo.W. The couple had a third child,
A.G., in 2009. April’s daughters considered Guerra their father and all three daughters
were close with him.
April filed for divorce in September of 2017. She testified that she filed for divorce
because Guerra’s behavior changed sometime around March of 2016. She suspected he
was cheating on her because she saw him use a credit card that she did not recognize.
1 To protect the identity of the complainant, we refer to her by her initials. See TEX. CONST. art. I,
§ 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 One count of sexual assault of a child was charged as a second-degree felony and the other was
charged as a first-degree felony under § 22.011(f)(1)(A). See TEX. PENAL CODE ANN. § 22.011(f)(1)(A) (providing that sexual assault of a child is generally a second-degree felony, but it is a first-degree felony if the victim was “a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under [§] 25.01”); see also id. § 25.01(a)(1)(B) (providing that a person commits the offense of bigamy if “he is legally married and he . . . lives with a person other than his spouse in this state under the appearance of being married”). 3 This appeal was transferred to this Court from the Fourth Court of Appeals by order of the Texas
Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.
2 They continued living together for three weeks before Guerra moved out of the family
home and moved in with his parents. He lived with his parents for about three or four
months before moving into an apartment. After the divorce, all three daughters saw
Guerra regularly and spent every other weekend at his apartment.
J.W. was nineteen years old at the time of trial. She testified that the abuse first
occurred when Guerra gave her massages to relieve soreness in her back. She said it
was not uncommon for her to receive massages from Guerra because she was often sore
from her after-school extracurricular activities. But beginning in May 2017, he began
touching her under her bra and underwear. J.W. testified that he would also place her
hand on the inside or outside of his pants to feel his erect penis.
She described the first incident of penetration happening at Guerra’s parents’
house on November 18, 2017. J.W., then fifteen years old, and her younger sisters were
with Guerra at his parents’ house for a family party. J.W. shared a bed with Guerra that
night and her two sisters slept elsewhere in the house. J.W. testified that Guerra got into
bed drunk, and he told her “he wanted to be inside [her].” He then pulled her on top of
him, pulled her pajama pants and underwear down, and penetrated her vagina with his
penis.
J.W. testified that the abuse involving penetration continued from November 2017
until her outcry in January 2019. She said that Guerra penetrated her vagina on many
occasions, and “it was hard to keep track of each and every individual date.” These
incidents would typically happen when she spent the night at his apartment over the
weekends with her sisters. A.G. slept in the apartment’s second bedroom and Jo.W. slept
on the couch in the living room. J.W. regularly slept in Guerra’s room.
3 On Sunday, January 20, 2019, J.W. returned home after a weekend at Guerra’s
apartment and told April about the sexual abuse. April took her daughters to stay with her
aunt and called the police. Guerra was arrested shortly after.
About a month before J.W.’s outcry, on December 6, 2018, April finalized the
couple’s divorce. April testified that, though she and Guerra had stopped attempting to
reconcile by this point, Guerra asked her to reconsider the divorce the day before the
divorce was finalized. About a week later, Guerra asked to go on a date with her for his
birthday. April testified that, though she went through with the divorce, these events led
her to believe he “was actually serious this time” about getting back together. The day
after Guerra’s birthday, however, April received a Facebook message from Hector Lopez
alleging that his wife, Mariah Lopez (Mariah), and Guerra were romantically involved. April
testified that “it didn’t really matter to [her] what he was doing,” and that she “did not really
care” he was dating another woman. But when April asked her daughters whether they
knew Mariah, she was upset to find out that not only had they met Mariah multiple times,
but Guerra had instructed them to not tell April that he was dating Mariah:
[The State]: How did you feel about the revelations [that Guerra was dating Mariah] while he was talking to you, and that Mariah was somebody that had been in the children’s life without your knowledge?
[April]: I was upset. Like this was the first time that I realized I couldn’t trust him. This was the first time I realized we weren’t on the same page. And it didn’t matter what he was doing and it, frankly, wasn’t any of my business, but I do believe that I should have knowledge of who my kids are around. And that was the biggest thing.
[The State]: And how would you say you reacted to that emotionally? How did it make you feel?
4 [April]: I was upset. And in my text[s] I did say some inappropriate and immature things.
[The State]: All right. So you said—
[April]: I was trying to get a reaction out of him.
[The State]: You were trying to get a reaction from who[m]?
[April]: From [Guerra] to respond, because he was stonewalling me.
[The State]: And you said you sent messages that you’re not proud of?
[April]: Yes.
[The State]: What do you mean by that?
[April]: Because they were immature.
[The State]: Was that—at that point were you still willing to consider reconciliation with [Guerra]?
[April]: No. Absolutely not. Not after that.
On cross examination, the defense asked April about the texts she sent Guerra
after she found out he was dating Mariah:
[Defense]: And when you found out [about Mariah], you were furious, were you not?
[April]: I was upset, yes.
[Defense]: All right. And you sent 269 texts to [Guerra] during that time, correct?
[April]: I did send quite a bit. I don’t know how many.
[Defense]: And the texts were insulting of [Guerra], correct?
[April]: I don’t recall the content of the text[s.] I do remember that they were immature.
The defense then attempted to authenticate and offer into evidence fifty-six pages of text
messages allegedly between April and Guerra spanning from December 18, 2018, to
5 January 3, 2019. When the defense asked April if she sent the texts, she stated: “I don’t
recall sending those texts. I recall being upset. I don’t remember what I sent” and “I’m not
denying anything. I’m saying I don’t remember.”
The trial court then excused the jury to determine the admissibility of the text
messages. The defense argued the text messages were relevant to show “the
environment under which [J.W.] found herself . . . to possibly manufacture [the sexual
assault] claims” and were relevant to illustrate April’s motive and bias to testify against
Guerra. The State responded that the texts were inadmissible because they were not
properly authenticated, they were not relevant, and they were hearsay. The trial court
denied the admission of the text messages, ruling that they were not relevant and stating
that they could only be admitted if they indicated that April “had manipulated [J.W.], or
gotten [J.W.] to lie about the sexual assault, or that [April and Guerra] weren’t married at
the time and [April was] lying about that.”
The defense next argued that the texts could come in as impeachment evidence,
arguing that April had misrepresented the relationship between her and Guerra on direct
examination. See TEX. R. EVID. 801(e)(1)(A) (providing that a statement is not hearsay if
it “is inconsistent with the declarant’s testimony” at trial and was given under penalty of
perjury). The defense explained it “should be allowed to ask if [April] recalls [composing]
each of the text[s],” and then if she denied sending any of the messages, the defense
could impeach her by reading the texts back to her. The trial court denied the defense’s
request, reiterating that the texts were not relevant.
6 The jury found Guerra guilty of one count of bigamy-enhanced sexual assault of a
child, one count of sexual assault of a child, and two counts of indecency with a child.
See TEX. PENAL CODE ANN. §§ 21.11, 22.011. This appeal followed.
II. DISCUSSION
In his first issue, Guerra argues that the trial court abused its discretion when it
excluded the text messages from evidence. In his second issue, Guerra contends the trial
court abused its discretion when it limited its cross-examination of April about the contents
of the text messages. In his third issue, he argues the trial court violated his right to
confront and cross-examine April. Lastly, he argues the trial court violated his right to
present a defense.
We address these issues as one: whether the trial court abused its discretion in
denying admission of the text messages into evidence and limiting testimony regarding
the text messages. See Mata v. State, 517 S.W.3d 257, 264 (Tex. App.—Corpus Christi–
Edinburg 2017, pet. ref’d) (citing Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App.
1993)) (interpreting the appellant’s complaint about the constitutional right to cross-
examination as a complaint of alleged error in the exclusion of evidence).
A. Standard of Review and Applicable Law
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). Under this
standard, we may not reverse the trial court’s judgment unless it “falls outside the zone
of reasonable disagreement.” Id. at 83 (citations omitted). “We must uphold a trial court’s
evidentiary ruling if it is correct under any theory of law applicable to the case.” Hernandez
7 v. State, 585 S.W.3d 537, 551 (Tex. App.—San Antonio 2019, pet. ref’d) (citing Henley,
493 S.W.3d at 93).
B. Harm Analysis
We assume without deciding that the trial court erred by excluding the text
messages and limiting additional testimony by April about the contents of the text
messages. Accordingly, we proceed to a harm analysis.
1. Constitutional or Non-Constitutional Error
The standard for reversible error in criminal cases depends on whether the error
is constitutional or non-constitutional. See TEX. R. APP. P. 44.2(a), (b); Mercier v. State,
322 S.W.3d 258, 261 (Tex. Crim. App. 2010). A constitutional error must be reversed
unless the court of appeals “determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). “With respect to the
erroneous admission or exclusion of evidence, constitutional error is presented only if the
correct ruling was constitutionally required; a misapplication of the rules of evidence is
not constitutional error.” Fox v. State, 115 S.W.3d 550, 563 (Tex. App.—Houston [14th
Dist.] 2002, pet. ref’d) (citing Tate v. State, 988 S.W.2d 887, 890 (Tex. App.—Austin 1999,
pet. ref’d)). Non-constitutional errors will result in reversal only if the defendant’s
“substantial rights” were affected. TEX. R. APP. P. 44.2(b).
Generally, the erroneous exclusion of evidence constitutes non-constitutional error
and is reviewed under Rule 44.2(b). Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim.
App. 2007). The exception is when erroneously excluded evidence “forms such a vital
portion of the case that exclusion effectively precludes the defendant from presenting a
defense.” Id. (citing Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)). In such
8 a situation, the defendant’s Sixth Amendment right to confront witnesses may be violated.
See Johnson v. State, 433 S.W.3d 546, 551 (Tex. Crim. App. 2014) (“Rather, the main
and essential purpose of confrontation is to secure for the opponent the opportunity of
cross-examination because that is the principal means by which the believability of a
witness and the truth of his testimony are tested.” (cleaned up)). But “a ‘less than optimal’
opportunity for cross-examination does not, of itself, violate the Sixth Amendment.” Id. at
557. “Only when the trial court’s limitation on cross-examination sweeps so broadly as to
render the examination wholly ineffective can it be said that the trial court commits an
error of constitutional dimension.” Id.
2. No Harm
Guerra argues that the text messages and testimony related to the contents of the
messages were relevant (1) to show April’s credibility, motive, and bias to testify against
Guerra; (2) to show “the hostile relationship between [Guerra] and April at the time the
allegations were made[, supporting] the defense’s theory of how these false allegations
could come about”; and (3) to “put other testimony that April brought before the jury in
proper context.” He similarly argues that limiting the cross-examination of April prohibited
“him from cross-examining a witness concerning possible motives, bias, and prejudice to
such an extent that he could not present a vital defensive theory.” See Hammer v. State,
296 S.W.3d 555, 562–63 (Tex. Crim. App. 2009).
April contended at trial that she was not jealous that Guerra was dating another
woman, but rather she was upset that Guerra had instructed their daughters to keep his
relationship with Mariah a secret. Though she could not remember the exact text
messages, she admitted that she was “upset” after finding out Guerra was dating Mariah,
9 and that she sent “immature” and “inappropriate” text messages. Most of the text
messages illustrated that frustration and anger, including: “How does it feel to be a
cheater?!?!”; “You’re trash and so is she”; “I[’]m seeking a restraining order for the girls
against [Mariah]”; “HELLO MOTHER FUCKER!!!!”; “How could you let some trash have
my daughter call her mommy”; “I have a right to know WHO is around my kids; MY kids.
[J.W.] and [Jo.W.] aren’t yours”; and “The fact that you continuously lie and try to
manipulate me shows you’re just as mental as [Mariah]. I don’t think you’re fit to be a
father.”
Some of the text messages contained vaguely threatening language, such as the
following: “Guess I’ll pay that place a visit” (referring to Mariah’s workplace); “I wonder if
[your employer] knows about all this? . . . I’m gonna contact [your employer]”; “You are a
worse father than the girl’s biological father; a horrible father. I have to now try and undo
all this trauma you caused[.] I’m going to take you back to court”; and “Why didn’t I get
child support from you on 12/15? . . . Send it now[.] I’m not ‘working with you’ anymore[.]
And if you REALLY want to [get a] court order we will and you won’t like it.” However,
none of the text messages contained an explicit threat to have Guerra incarcerated, ruin
his life, or threaten to have one of their daughters lie about sexual abuse. See Smith v.
State, 340 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding trial
court did not abuse its discretion in excluding “hateful” text and voice mail messages from
victim’s mother to appellant).
Guerra’s trial counsel wanted to admit the text messages to illustrate April’s bias
towards Guerra and ultimately to show that J.W. was influenced by her mother to lie about
the abuse. However, April admitted multiple times, both on direct and cross-examination,
10 that she sent “immature” and “inappropriate” text messages to Guerra after she found out
he was dating Mariah because she was “upset.” She admitted she sent the messages to
get a reaction out of him and she was not proud of the text messages she sent.
Furthermore, though Guerra states multiple times in his brief that he was “not even
allow[ed] . . . to question April about the contents of the text messages,” the defense did
question April about the contents of the text messages, including:
[Defense]: [Do] you recall telling [Guerra] . . . that you were going to follow the [divorce decree, allowing the girls to visit], the first, third and fifth weekends strictly?
[April]: Previously, we had discussed that the divorce decree was something that we would fall back on, if we weren’t on the same page. That’s why I allowed him to take [our daughters] whenever they wanted, I was very flexible with it. But, yes, when I realized we weren’t on the same page, due to discovering the whole Mariah thing, I said that we were going to stick to the divorce decree.
....
[Defense]: All right. And do you recall sending a text stating that [Jo.W.] and [J.W.] are not his kids?
[April]: I don’t recall sending a text like that. He already knew that.
[Defense]: Did you tell [Guerra] in a text that he was going to only see [A.G.], his biological child, because that’s what the decree said?
[April]: No.
[Defense]: Would you agree that in your text messages to [Guerra], you told him that you did not want Mariah around your children?
[April]: I do not recall that.
11 [Defense]: Do you deny saying that?
[April]: I do not recall it.
The jury also heard testimony from J.W. and Jo.W. about how they perceived
April’s anger. J.W. was extensively questioned during cross-examination about a potential
motive to lie for her mother:
[Defense]: But [April’s] reaction [to the news Guerra was dating Mariah] was much stronger than what you testified to. She was livid, wasn’t she?
[J.W.]: At moments, especially at first. She was upset because we had not told her about what had happened.
[Defense]: Well, let me ask you again. She was livid. She was besides herself, wasn’t she?
[J.W.]: I guess you could say that.
[Defense]: Well, I want to know if you agree with me or not.
[J.W.]: From what I understand, I do agree with you.
[Defense]: Okay. So as a result of that, [J.W.], she disallowed visitations with your stepdad?
[J.W.]: There were certain times where they did argue and she did not want us going over because of the arguments that had taken place, but that was not something in which she said, you are never going over there ever again.
[Defense]: Well, that wasn’t my question. My question was that as a result of this leak of information about Mariah, and somebody calling her mom, your mom retaliated by not letting you all go to him again. That’s my question.
[J.W.]: I would say that that happened maybe a weekend or so, but that was not a consistent thing.
12 [Defense]: But it happened?
[J.W.]: Correct.
[Defense]: Okay. Do you remember that time as being one where your mom was particularly upset with everybody about this Mariah business?
[J.W.]: I do remember that happening. . . . My mom did say certain things, but she did not follow up on a lot of the things she had said or stated that she would do. So I would say that she was upset, but I don’t know if I would necessarily say that she blew up, especially to the extent in which you’re referring.
[Defense]: You were concerned that your mom would leave you if this continued, you wanted to show her your loyalty?
[J.W.]: Can you elaborate on that, please?
[Defense]: You felt that your mom would probably reject you to some degree or another, if you didn’t turn on Mariah and go away.
[J.W.]: No, I would not say that. . . . I would say that my mom was uncomfortable with the fact that we withheld the information from her, but I would not say that my mom instructed us or even hinted at us needing to be completely against Mariah.
[Defense]: But you wanted to avoid her wrath, didn’t you?
[J.W.]: My mother’s wrath?
[Defense]: Yes.
[J.W.]: I—I wanted my mom to be happy. I hated seeing her hurt, but I was not going to take that to the extent in which I would turn on somebody or take it even further.
[Defense]: Would you say that you wouldn’t make up these accusations to gain your mom’s trust, dump on your stepdad, you’re saying you wouldn’t do that?
[J.W.]: I would not make [up] those accusations, because it’s a very serious thing that has serious consequences. . . . And because of all this, I have missed out on a lot. I have had to
13 go through a lot. So it’s not something that I would just be like, let me do this because I’m mad at him. There’s—there’s so m[uch] I lost from this experience that I would not just make up that accusation to go through all of this.
The harm resulting from the error, if any, did not satisfy the standards set forth
under either Rule 44.2(a) or 44.2(b). See Valle v. State, 109 S.W.3d 500, 507 (Tex. Crim.
App. 2003) (“The fact that appellant was not able to present his case in the form he
desired does not amount to constitutional error when he was not prevented from
presenting the substance of his defense to the jury.”); Gotcher v. State, 435 S.W.3d 367,
375 (Tex. App.—Texarkana 2014, no pet.). Guerra was still able to present his defense
because there was substantial testimony about a potential motive for April and J.W. to lie.
Gotcher, 435 S.W.3d at 375 (“Here, the excluded testimony was certainly of a graphic
and important nature to Gotcher’s defense, but he was still able to present his defense
without it. We, therefore, evaluate this error as non[-]constitutional and evaluate harm
based on whether it affected Gotcher’s substantial rights.”); Broussard v. State, 434
S.W.3d 828, 835 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“The exclusion of
evidence that furthers appellant’s defensive theory only incrementally is non-
constitutional error.”). Thus, we conclude that excluding the text messages was harmless
because it was cumulative of other testimony admitted at trial. See TEX. R. APP. P. 44.2(b);
Smith, 340 S.W.3d at 53–54 (finding that the complainant’s mother’s hateful text and
voicemail messages to appellant were overly cumulative and holding the trial court did
not abuse its discretion in excluding the messages); Franks v. State, 90 S.W.3d 771, 805–
06 (Tex. App.—Fort Worth 2002, no pet.) (holding that because complained-of testimony
was generally cumulative of other evidence introduced in case, no harm attached).
14 Similarly, limiting cross-examination about the text messages was harmless
because evidence of a possible bias and motive for April and J.W. to lie was presented
to the jury through their testimony. The admission of the text messages and additional
testimony would, at most, only have marginally increased the intended effect already
expressed by other evidence that the jury was permitted to hear. See Smith, 340 S.W.3d
at 53–54. Furthermore, Guerra’s trial counsel was not prevented from cross-examining
April about his defensive theory, i.e., questioning her about whether she coached J.W. to
lie about the sexual abuse.
While the text messages may have shown some vague threats, none of the text
messages indicated that April “had manipulated [J.W.], or gotten [J.W.] to lie about the
sexual assault.” See Smith, 340 S.W.3d at 53. Ultimately, the jury is the “exclusive judge
of the credibility of witnesses and of the weight to be given their testimony.” Wyatt v. State,
23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (quoting Barnes v. State, 876 S.W.2d 316, 321
(Tex. Crim. App. 1994)). In this regard, the jury was able to effectively weigh the credibility
and the testimony of the witnesses at trial.
In sum, we cannot find that Guerra’s substantial rights were affected when the text
messages were excluded from evidence and testimony about the text messages was
limited, and we accordingly conclude that any alleged complained-of error, if true, was
harmless. See TEX. R. APP. P. 44.2(b). We further determine beyond a reasonable doubt
that the exclusion of the text messages and related testimony did not contribute to
Guerra’s conviction or punishment. See id. 44.2(a). We overrule Guerra’s issues.
15 III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS Chief Justice Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 30th day of November, 2023.