Guerrero v. State

964 S.W.2d 32, 1997 Tex. App. LEXIS 5382, 1997 WL 619710
CourtCourt of Appeals of Texas
DecidedOctober 8, 1997
DocketNo. 04-96-00064-CR
StatusPublished
Cited by3 cases

This text of 964 S.W.2d 32 (Guerrero v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guerrero v. State, 964 S.W.2d 32, 1997 Tex. App. LEXIS 5382, 1997 WL 619710 (Tex. Ct. App. 1997).

Opinion

OPINION

SHIRLEY W. BUTTS, Justice (Retired).

Alex Guerrero appeals his conviction for the offense of aggravated assault. Tex. Penal Code Ann. § 22.02(a)(1) (Vernon 1994). After finding him guilty, the jury assessed punishment at eight and one-half years imprisonment and a fine of $10,000.

Appellant advances four points of error: that the trial court erred in restricting his constitutional right of confrontation and cross-examination of the complaining witness; that the court erred in overruling his objection to the prosecutor’s jury argument; that there existed alleged fatal variance between the pleading and the evidence; and that, contrary to the trial court’s order granting his motion in limine not to admit evidence of his previous assault of the same person, the evidence improperly came before the jury to his prejudice. We affirm.

Cross-Examination

The evidence at the guilt-innocence phase of trial showed that appellant and the complaining witness, Annette Garcia, had sometimes lived together at her house for the past year. The charging information alleged that on August 7,1995, appellant assaulted Garcia by stabbing her with a knife. Garcia was married to David Garcia, who was then on parole but not living with her. She explained, “He was always in prison.”

Appellant and Garcia “broke up,” and appellant moved out on the morning of August 7,1995. On the way to a club that night with Melissa Maldonado, Garcia saw appellant and talked to him on Old Pearsall Road. Then the two women went to the Tejano World club where they met appellant again. The three went back to Garcia’s house. Both Garcia and Maldonado testified they left appellant’s [34]*34truck there and went to another club, the Something Different.

After they consumed some drinks, Garcia went to the ladies room. A woman there asked her whether she was back with “Psycho.” When Garcia returned to their table, she and appellant argued about that characterization, and he was very angry. Garcia, Maldonado, and appellant left the club and returned to the house, where appellant refused to give Garcia her car keys. They argued and he pushed her, and she pushed him. He struck her and when she fell, appellant, who was wearing boots, kicked her. Maldonado tried to help by jumping on appellant’s back and tearing his shirt.

When Garcia screamed for her niece, Tanya Quintero, to call the police, appellant reached through the burglar bars and tore out the phone cord. There was evidence that appellant dragged Garcia into the house. She testified that appellant went back to his truck and got his knife, immediately started using it on her, telling her she deserved it. He threatened if either of the other two women called the police, he would cut Garcia’s throat. He locked Garcia in the bedroom and locked the other women outside. Maldonado also testified that appellant threatened to “slice” Garcia’s throat, and was kicking, beating, and dragging her. Quintero and she ran outside, and as they left, she saw appellant going at Garcia with a knife. Quintero testified that as Garcia tried to pull away from appellant, he stabbed her with the knife. “He was stabbing her like on top, but she kept blocking. She would put up her hand and he would stab her in the hand, but from where I was standing, you couldn’t tell where he was stabbing her.”

When the Fort Worth police, summoned by Maldonado, arrived, Detective Sherry Koch, an evidence technician, found much blood outside and in the kitchen, living room, hallway, bedroom, and bathroom. Koch said she took photographs of the scene that seemed to reflect that life-threatening wounds had been inflicted.

Garcia testified that appellant put her in his truck, saying they were going to die together. But he drove to his aunt’s house. The aunt directed him to take the woman to the hospital, and he did. At the hospital later, Detective Koch recovered the knife from appellant’s truck. She stated it was a deadly weapon capable of causing death or serious bodily injury. The complainant’s hand required surgery. She displayed a five-inch scar at trial and showed she had lost the full use of her little finger.

Appellant testified, denying that he struck or kicked her or assaulted her with his knife. The defense theory was that David Garcia, the husband, then on parole, attacked Garcia when he found her with appellant. In furtherance of that theory, the defense was that Garcia lied about the identity of her attacker to protect her husband and prevent revocation of his parole. Appellant also said all three women lied about his committing the assault.

In presenting the defensive theory, appellant testified that when he, Garcia, and Maldonado returned to the house, David Garcia confronted him for being with his wife, and they fought. Appellant said Garcia went to his truck and got a gun, pointing it at appellant, who in turn pulled his knife and swung at the other man. He said no one was hurt, and both men left, but on his way home appellant was paged by the complainant. He stated he returned and found her bleeding. He took her to his aunt’s house and later to the hospital. He denied that taking her to his aunt’s house was to avoid apprehension, stating that because he had been drinking, he did not want to get into trouble.

Appellant complains he was not permitted to develop his defensive theory of the case because the court limited his cross-examination of the complainant. Defense counsel first inquired of the complainant whether her husband was currently on parole. The State’s objection was sustained, and the court ruled this “doesn’t mean beans to this case. It is irrelevant.”

Defense counsel then made a bill of exception outside the jury’s presence. He asked whether David Garcia was currently on parole. Complainant answered that he was in jail and she did not know. Counsel asked:

Q. Was David on parole on August 7, 1995?
[35]*35A. Yes. [She confirmed he was out of jail then.]

When counsel asked whether she had any contact with him then, the court interrupted that this was not a discovery matter and halted the questioning. Counsel argued that the questions went to the complainant’s motive for testifying as she did.

Defense counsel then asked the complainant whether David and appellant fought that night. She answered, “No.” At that time, the trial court advised defense counsel that he could recall the complainant and question her before the jury. The court stated:

I think if he wants to ask her if he was free on that date, he is perfectly entitled to do that, but when he was on parole, when he is not on parole, the fact that he is in prison has nothing to do with anything.

Defense counsel argued:

Well, if [appellant] says she was not stabbed by him, but that he left, and there was a fight between Annette and David, or he left David there, or David was jealous when he got there, as the jury has already heard, if he [David] stabbed Ms. Garcia, then that would go to her motive [for] bias or animus for testifying perhaps to save the husband that she is still married to from revocation.

After that explanation, the trial court changed its ruling, withdrawing the previous limitation:

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Bluebook (online)
964 S.W.2d 32, 1997 Tex. App. LEXIS 5382, 1997 WL 619710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guerrero-v-state-texapp-1997.