Juan Jimenez Guerra A/K/A Juan Guerra v. the State of Texas ( 2023 )

NUMBER 13-21-00419-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JUAN JIMENEZ GUERRA A/K/A
JUAN GUERRA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
CONCURRING MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Peña
Concurring Memorandum Opinion by Justice Benavides
I join the majority in all respects except for its analysis of Guerra’s Brady complaint.
The State informed Guerra that it had in its possession a cellphone whose contents
potentially impeached the testimony of one of its complaining witnesses, D.E. The State
disclosed the existence of this phone, as it was required to do. See TEX. CRIM. PROC. ANN.
art. 39.14(h); see also Cone v. Bell, 556 U.S. 449, 470 n.15 (2009) (“Although the Due
Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates
the disclosure of material evidence, the obligation to disclose evidence favorable to the
defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”).
Detective Frederico Perez Jr. of the Brownsville Police Department testified that
Guerra’s wife provided the phone in question to the police and “there w[ere] nude pictures
from one of the girls” on it. Despite a detective testifying to the potential existence of child
pornography on the phone, the trial court determined that it did not have probable cause
to issue a warrant to inspect the phone’s contents. The trial court also concluded that the
parties were barred from examining the phone’s contents. When a trial court limits a
defendant’s access to potentially exculpatory evidence, as it did here, it is unclear how a
defendant could be expected to categorically prove that evidence is favorable to him.
“The touchstone of due process is protection of the individual against arbitrary
action of government.” Meachum v. Fano, 427 U.S. 215, 226 (1976). By ruling against
Guerra on the first two prongs of the Brady test, I am concerned that we are inadvertently
blessing an arbitrary action, whereby the State can suppress whatever evidence it wants
to, so long as the judiciary acts as its proxy. I agree with the majority that no Brady
violation occurred here, because the cellphone and its contents were immaterial to the
outcome of the proceeding.1 See Brady v. Maryland, 373 U.S. 83, 87 (1963). However,
1 The majority does address the materiality prong of the Brady test. However, they conclude that
“even assuming the complained-of phone did not contain a video of the incident the complainant claims
she recorded, . . . such evidence does not discredit the complainant.” I believe whether D.E. would be
discredited has to do with whether this evidence is favorable, not whether this evidence is material. See
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in my opinion, Guerra adequately demonstrated that potentially favorable evidence was
withheld, and therefore met the first two prongs of the Brady test. See id.; see also United
States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011) (“To have been suppressed, the
evidence must not have been discoverable through the defendant’s due diligence.”);
Owens v. State, 381 S.W.3d 696, 700 (Tex. App.—Texarkana 2012, no pet.) (“The State
is required to provide potentially exculpatory information to the defense.” (emphasis
added)). Thus, I write separately to concur in the result.
I. MATERIALITY
A. Standard of Review & Applicable Law
The majority sets out the appropriate standard of review and applicable law, but it
is worth reiterating. “Under Brady, nondisclosure of favorable evidence violates due
process only if it is ‘material’ to guilt or punishment.” Pena v. State, 353 S.W.3d 797, 812
(Tex. Crim. App. 2011). “Evidence is material to guilt or punishment ‘only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.’” Ex parte Reed, 271 S.W.3d 698, 727 (Tex.
Crim. App. 2008) (quoting United States v. Bagley, 473 U.S. 667, 684 (1985)). “A
‘reasonable probability’ of a different result is accordingly shown when the government’s
evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles v.
Whitley, 514 U.S. 419, 434 (1995).
United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence, however, as well as
exculpatory evidence, falls within the Brady rule.”). Thus, my analysis of this prong differs from the
majority’s.
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To determine whether this probability exists, “we must examine the alleged error
in the context of the entire record.” Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim.
App. 1992). Thus, a reviewing court balances “the strength of the exculpatory
evidence . . . against the evidence supporting conviction.” Pena, 353 S.W.3d at 812. “One
does not show a Brady violation by demonstrating that some of the inculpatory evidence
should have been excluded, but by showing that the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles, 514 U.S. at 435. Finally, we may also consider “any adverse effect that
the prosecutor’s failure to respond might have had on the preparation or presentation of
the defendant’s case.” Bagley, 473 U.S. at 683.
B. Analysis
Guerra argues that the “phone, if it had no video[,] . . . would have been vital to
show [D.E.] had invented the abuse.” However, it is entirely within the realm of possibility
that the jury was not convinced that Guerra abused D.E., even without this additional
evidence. The indecency with a child by contact charge only allowed the jury to convict
Guerra if it found
beyond a reasonable doubt that on or about the 15th day of April,
2020, . . . in Cameron County, Texas, the defendant, . . . GUERRA, did
then and there with the intent to arouse or gratify the sexual desire of the
defendant, engage in sexual contact with [D.E.], . . . a child younger than
17 years of age, by touching the breast of [D.E.] . . .
During trial, D.E. testified that when she was about six years old, Guerra would enter her
room at night and touch her both over and under her clothes, specifically on her breasts.
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D.E. then went on to say that “for years” he did this “[e]very night she would stay over.”
Nonetheless, the jury found Guerra “not guilty” of indecency with a child by contact, the
only count that relied exclusively on D.E.’s allegations.2
The continuous sexual abuse charge, on the other hand, permitted the jury to
convict if it found that Guerra, during a period of at least thirty days, committed two or
more acts of either indecency with a child by contact against C.E. or D.E., or aggravated
sexual assault of a child against B.E., C.E., or D.E. See TEX. PENAL CODE ANN. § 21.02(b).
In other words, the jury was entitled to discredit all of D.E.’s testimony and still convict
Guerra of continuous sexual abuse of a child. Guerra does not explain how the absence
2 It is possible that the jury reached this conclusion because it was confused about the charge.
“[T]he date of an offense is not ordinarily a material element of the offense.” Oliva v. State, 548 S.W.3d
518, 526 (Tex. Crim. App. 2018). The jury charge included the following instruction: “You are further
charged as the law in this case that the State is not required to prove the exact date alleged in the indictment
but may prove the offenses, if any, to have been committed at any time prior to the filing of the indictment.”
“On appeal, we generally presume the jury follows the trial court’s instruction in the manner
presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). However, this is a rebuttable
presumption, and there is some evidence the jury here may not have understood that this instruction applied
to both counts one and two of the indictment. See id. The immediate surrounding paragraphs of the above
instruction concerned only count one, the continuous sexual abuse of a child charge. During deliberations,
the jury sent a note to the court asking whether count two, the indecency with a child by contact charge,
was “referring to April 15 to [sic] indictment.” See Castillo-Fuentes v. State, 707 S.W.2d 559, 562–63 (Tex.
Crim. App. 1986) (concluding that jury’s question to court during deliberations showed it was confused
about jury charge). The court responded that the portion of the charge concerning count two referred to
“ON OR ABOUT APRIL 15TH, 2020.” The jury charge did not include a definition of the phrase “on or
about.”
The court of criminal appeals has held that in the absence of a definition of “on or about,” a jury is
permitted to convict for an applicable offense if it finds beyond a reasonable doubt that the defendant
“committed the offense charged within the applicable statute of limitations period.” Mireles v. State, 901
S.W.2d 458, 460 (Tex. Crim. App. 1995). But the court of criminal appeals has not held that a jury is
obligated to accept this default definition of “on or about” in the absence of any instruction concerning the
phrase. It could be that the jury here did not realize that it was empowered to convict Guerra for any
applicable indecency with a child by contact act committed against D.E. that fell within the relevant statutory
limitations period. But it also could be that the jury was simply not persuaded beyond a reasonable doubt
that Guerra committed the offense. Based on this record, it is not possible to determine what ultimately led
to the “not guilty” verdict for count two.
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of the recording, which he claims he would have used to impeach D.E.’s testimony, would
have impacted the reliability of the allegations that Guerra also committed sexual offenses
against B.E. and C.E.
Both B.E. and C.E. testified about Guerra’s unlawful conduct. B.E. testified that
around the time she “was entering 8th grade,” Guerra “inserted his lower private area” in
her “butt” “[s]everal times.” During another incident, Guerra “started touching [B.E.],
starting from [her] legs all the way up to [her] lower area, . . . [her] private area.” She also
stated that Guerra touched her “private part with his hand” “[a]ny[ ]time [she] was there.”
He also “would put his mouth in [her] private area” and “[h]e would put his fingers in [her]
private area.” C.E. testified that when she was about seven years old, Guerra, on more
than two occasions, “touched [her] vagina” “over the clothes” and “put his fingers inside”
of her vagina. Additionally, as the majority points out, Castillo, a forensic interviewer from
a children’s advocacy center, and the girls’ mother, A.E., corroborated the testimony of
all three girls. See Harm v. State, 183 S.W.3d 403, 409 (Tex. 2006) (concluding that
withheld impeachment evidence concerning the State’s complaining witness “A.N.” was
not shown to be material when “[t]he state’s case in this instance rested in large part on
the testimony of A.N., but both A.N.’s mother and Deputy Christine Larner of the Grimes
County Sheriff’s Department sexual offenses investigation unit gave testimony that
corroborated A.N.’s version of events”).
Lastly, I consider any adverse effect that the failure to disclose this evidence may
have had on Guerra’s ability to mount a defense. See Bagley, 473 U.S. at 683. Much of
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Guerra’s defense focused on discounting D.E.’s credibility. For instance, when D.E. was
on the stand, Guerra cross-examined her about her mental health diagnoses, the
medications she used, whether she ever had “hallucinations or imagined things,” and
whether she imagined the alleged abuse. Guerra also asked other witnesses about D.E.’s
mental health and whether she claimed to see “dead people.”
Most notably, Guerra argued at trial that the absence of the recording in question
undermined D.E.’s credibility. Specifically, Guerra asked D.E. why, when she testified that
she was afraid no one would believe that Guerra was abusing her, she did not show the
alleged recording to anyone. In closing arguments, Guerra discussed the phone again
and told the jury that “[m]issing evidence equals reasonable doubt.”
While confirmation that such a recording did not exist could have bolstered the
defense’s impeachment of D.E., “[t]he mere possibility that an item of undisclosed
information might have helped the defense . . . does not establish ‘materiality’ in the
constitutional sense.” See United States v. Agurs, 427 U.S. 97, 109–10 (1976). In other
words, Guerra’s defense concerning D.E.’s allegations of abuse already hinged on her
credibility. Casting a slightly larger shadow of doubt on her credibility would not “put the
whole case in such a different light as to undermine confidence in the verdict.” See Kyles,
514 U.S. at 435; see also Webb v. State, 232 S.W.3d 109, 115 (Tex. Crim. App. 2007)
(“In light of all the evidence presented against Appellant and the abundant impeachment
evidence Appellant offered against the complainant, the additional [impeachment]
evidence . . . was not material under Brady.”). Thus, in balancing the strength of the
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exculpatory evidence against the evidence supporting conviction, Guerra has not
discharged his burden to show the withheld evidence was material. See Hampton v.
State, 86 S.W.3d 603, 613 (Tex. Crim. App. 2002).
I believe the Brady issue is best disposed of by analyzing the third prong of the
test more fully, as I have done here, and therefore, I respectfully concur.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
20th day of April, 2023.
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