1 ... Senior Jud ge, s i t t i ng by as si gnm ent

i i i i i i



### MEM ORA ND UM OP INION No
. 04 -0 8- 00 31 2- CR J erma ine GU ERRA , Appellant
v . STA TE of

Te xas, Appellee Fr om the 226th J udicial District Court, Be x ar County , Texas

Trial Court No. 2007-CR-5005 Honora ble Robert R. Ba

rton, J udg e Presiding 1 Opinion by : Steven C. Hilbig, Just ice Sitt ing: Catherine Stone, Chief Justice

Phy lis J . Speedlin, J ustice Steven C. Hilbig, Just ice Deliver ed and F iled: October 28, 2009 AFF I RMED J erma ine Guer

ra w as found guilty

by a jury of attempted capital murder and sentence d by the court to five year s in prison. Guerr a appe als the judg ment, argui ng the evidenc e is leg ally and fac tually insufficient to support the ve rdict, the trial c ourt err ed in fa iling to instruct the j u ry on a04
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- 2- lesser inc luded offe nse, and the court abused its discr etion by rea ding testimony to the jury

during de lib e ratio ns . We a ff

ir m th e jud g me nt o f t

he tr ia l c ourt
. B ACKG ROUND On the morningof April 4, 2007, Gue rra was in the pa

rking lot of a video store in San An ton io. Th e sto re , o wn e d b y John Mo ra le s, ha d be e n burg lari zed se ve ra l ti me s in the re c e nt p a st. Morales’ s landlord testified he sa w Guer ra at the front door of the store and Gue rra appea red to be g esturingto someone inside the store. T he store w as not open fo r b u s i n ess. The la ndlord ca lled Morales, who in turn called police and re ported a possible burg lary
. Morales dr ove to his store and approa ched Guer ra. Acc ording to Mor ales, Guer ra said he ha d been w aiting a ll morning and wanted to go inside the store. Mora les told Guerr a the store was not y et open f or business, but Guer

ra ke pt insist ing he wanted to g o inside the store. Morales te stified Guer ra w as dre ssed in bag g y

jeans, c arr ied a ba ckpac k, and see med ner vous. San Antonio Poli ce O ffice r Michae l Castano testified he r ece ived a dis p at ch t o g o to the video store f

or a possible burg lary

in prog ress. When he a

rrived at the s t o re in his marked patr ol vehicle, he saw two men s tanding near the front door of the s tore. Of fice r Castano kne w the store had bee n burg larize d a month ear lier and ha d met Morales in c onnection with that cr ime. As he
a pp ro a c he d th e me n, Of

fi c e r C a sta

no re c og nize d M or a le s. He tol d th e me n to c ome tow ards h im
an d t h en sawGuer

ra put his hand in his pocke t. The off icer told Guerra

to remove his hand, a

nd Guer ra c omplied. Office r Castano then told Gue rra to place his ha

nds on the patrol car , but Guerr a instead put his hand in his pocket once aga in. Guer ra pulled a “wad” of money from his pocke t and pushed it toward the of

fice r. Off

icer Cast an o testified he wa s conce rned that Guerr a wa s not complying w ith his requests and that Gue rra was looki n g ab o ut as if assessingthe sce ne and not04
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2 ... O f f i ce r C astan o t esti f

i ed G ue rra’s jea ns ha d b ee n cu t , so the w ea p o n co uld b e sli p p ed i nsid e h i s p an t s. M o st o f t he we ap o n w as c o nc ea l ed b y G ue rra’s clothe s.

- 3- focusingon him. Office r Castano steppe d towards Gue rra and g rabbe d his left wrist. Guer ra dropped his rig ht hand towar d his right poc ket, pulled awa y from the of

fice r, and star

ted y elling. When Morales saw

Guer ra attempt to pull awa

y fro m Offic er Casta

no, Morales g rabbe d Guer ra’ s rig ht arm. Mora les testified he f elt “something hard” on Guer ra’ s rig ht side . Morales lifted Guer ra ’s s hirt and saw pa

rt of what was later

deter mined to be a modified A R-15 rifle. 2 Guer ra g rabb e d th e “ b u tt ” o f

th e w e a p o nan d s ta rte d y e ll in g “ I ’ ll k il l yo u . I ’ ll k il l yo ub o th
. ” M orale s g r a b b e d G u e r r a ’ s r igh t h an d

an d tr ie d to r e mo v e G u e r

r a ’ s g r ip o nth e w e a

p o n . O f f ic e r Castano te sti fi e d h e be lie ve d G ue rr a wa s atte mpt in g to d

ra w the we a

po n, but it

wa s c a ug ht o n p art

of his clothing. Astrug g le ensue d, with the three men falling t o the ground severa l times and then ge tting up as they

wre stled for c ontrol of the we apon. B oth Morales a nd Offic er Casta

no testified Guer

ra continued to scre am his intent to kill them. Fe aringGuer ra w ould be able to use his weapon, O ffice r Ca sta no dr e w h is we a

po n. He pu sh e d Gue rr a awa y fr om himand

tol d M or a le s to g e t be hin d h im. Mo ra le s h a d h is h and

on Gu e rr a ’s we a

po n a nd de c ide d to pu ll o n it

on e la st t ime
. Mo ra le s w a s a ble to y ank the we apon fr ee fr om Guerr a’s pa nts, and it fell to the g round. Mora les testified the mag azine was attached to the w eapon when it came out of Guer ra’ s pants, but the mag azine detac hed from the we apon whe n it hit the ground. Office r Castano holstere d his weapon a nd he and Mor ales tackled Guerr a to the g round. Off icer Castano was the n able to re s t rain Gue rra with a pair of handcuf fs. Althoug h restra ined, Guer ra c ontinued to y ell and strug g le with the men. Other office rs
arr ived and took contr ol of the sce ne.04
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- 4- Cy nthia Hunt, a crime scene technicia n for the San Antonio Poli ce D epar tment, proce ssed the cr ime scene . Hunt testified s he found a modi fied AR-15. The weapon’s ba rre l had bee n sawe d off to shorten its over all leng th. No round wa s chambe red in the w eapon. H unt testified she found a mag azine loaded with twenty -six rounds nea r the we apon. Six fully

loaded m aga zines, each containingthirty

rounds, and sixt y -five loose rounds of ammuniti on wer e found in Gue rra ’s bac kp ac k . Dale Justice, a for ensic scie ntist employ ed by the B exar County

Crime L ab in the fi re arm s sectio n, te sti fi e d th e AR -1 5 h a d b e e n mo dif ie d to a c t a s a

sin g le -s ho t r a the r t

ha n a se mia uto matic we a

po n. He e xpla ine d that a

sh oo te r w ou ld h ave to m anu a lly loa d a ne w r ound

e a c h ti me he wa nte d to fi re the sin g le -s ho t fi re arm ; wh e re a s, a se mi- a uto matic fi re arm

me c ha nic a lly loa ds a
new r ound without any

action on the pa

rt of the shooter. J ustice tested the w eapon a nd found it was fully functional a

nd capa ble of fir ing a

bullet. He further testified that even in its modified condition, the wea pon could fire thirty

rounds in under thirty

seconds. Justi ce a lso confirmed that the wea pon striking the ground could c ause the mag azine to separate from the w eapon. L E GAL AND F A C TUA L S UF F I CI E NCY Guer ra f irst complains the evidenc e is le g ally and fac tually insufficient to prove he had the
re qu isi te int e nt t o k ill Of

fi c e r C a sta

no . Gu e rr a c on te nd s that bec a us e no ro un d wa s c hambe re d in the we a po n a nd the ma g a zine wa s fo un d se pa rate d fr om the we a

po n, “ the re wa s n o w ay

[he ] co uld have fired the wea

pon.” Guer

ra a sserts he kne w he c ould not fire the we apon and a rgues he the ref

ore could not have f

ormed the intent to kill Office r Castano. We disag ree . Morales te stified Guer

ra ha d his hand on the end of the wea pon, and wa s trying to pull the
wea pon out of his pa

nts. Morales also testified that when he was finally able to ge t his hand on the
wea pon and pull it out of Guerr a’s pa nts, the mag azine was attached to the w eapon. A lthough ther e04
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3 ... G u er r a’ s a r g u men t t h at h e wa s n ot c apa bl e of f i r i n g t h e we apon i s pr emi s ed on mi s s t at eme n t s of t h e r ec or d. Fi r s t , G uer r a s t at es “ [ n] ei t her Cast ano n or M oral es s aw t he magazi ne l oaded i nt o t he weapon. ” T o t he cont r ar y , M oral es t est i f i ed “ I s aw a m a g a z ine in si d e t he gun. ” G uerra al so st at es, wi t ho ut ci t at i o n t o t he reco rd, “Ca st ano ob ser ved t he weap o n as i t was com i ng o ut o f t he A p p el l ant ’ s p o cket and t here was no m agazine l o ad ed i nt o t he weap o n. ” H o wever, O ff ic e r C a s ta n o tes tif

ie d he “n e v e r sa w the w e a p o n c o m p le te ly o u t o f [G u e rr a ’s] p a n ts un til it w a s o n the gr o u n d .” F ina lly, G u e rr a re fer s to O ff ic e r C a sta n o ’s testim o n y tha t he c o u ld se e the e je c tio n p o rt o f t h e w e a p o n in G u e rr a ’s p a n ts whi l e t hey wer e s t r ug gl i ng . G uer r a t hen s t at es t he ej ect i on po r t “ i s whe r e t he magazi ne woul d be l oaded , ” a nd conc l udes t he m agazin e w a s n o t in ser t ed i n t he weap o n when i t was i n G uerra’ s p ant s. A gai n, G uerra i s m i st aken ab o ut t he e v id e n c e . Im m e d ia te ly afte r te stif ying he c o u ld se e th e e je c tio n p o rt, O ff ic e r C a sta n o e x p la ine d tha t t h e e je c tio n p o rt is w h e re the c a sin g c o m e s o u t afte r th e w e a p o n is f ire d
.

- 5- was no round c hamber ed in the wea pon, J ustice testified a round could be c hamber ed, makingthe
we a po n r e a dy to f ir e , in a sec on d or le ss. Th is ev ide nc e , tog e the r wit h G ue rr a ’s re pe a te d thre a ts t o kil l Mo ra le s and

Of fi c e r C a sta

no , is su ff

ic ie nt to a llo w a ra

tio na l jur y to f ind be y on d a re a so na ble do ub t th a t G uerr a had bo th the a bil ity and a sp e c if ic int e nt t o k ill Of

fi c e r C a sta

no . We ov e rr

ule Guer ra’ s leg al suffic iency

point. Se e Pr ible v . S

tate , 17 5 S.W. 3d 72 4, 72 9- 30 (T e x. Cr im. Ap p. ) ( in leg al sufficie ncy revie w, appellate court looks at a ll e vidence in lig ht most favor able to verdict a nd deter mines whether

any rational trier

of fa ct could have found ele ments of offe nse beyond a
rea sonable doubt), cert. de nied , 546 U.S. 962 (2005). We a lso ove rrule Guer ra’ s fac tual sufficie ncy point. The evidenc e supportingthe verdic t is not so weak that the verdic t seems clea rly wrongand manifestly

unjust, and Gu er ra h as not pointed to any evidenc e that outweig hs the evidenc e
su pp or tin g the ve rd ic t. 3 Se e W

atso n v. St ate , 204 S.W .3d 404, 414-15 (Te x . Crim. App. 2006) (appe llate cour

t reve rses for

fac tual insufficienc e only if evidenc e supportingverdic t is so weak that verdic t is clearly

wrong an d manifestly

unjust or if evidenc e supportingverdic t is outweighe d by g reat weig ht and pre pondera nce of evidenc e). L E S S E R I NCL UDE D O FFEN SE Guer ra ne x t contends he w as entitled to a jury instruction on the lesser inc luded offe nse of terror istic threat. A de fenda nt is entitl ed to a jury

char g e on a le sser include d offe nse if he make s04
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- 6- a pr op e r re qu e st fo r an

ins tr uc tio n o n a

le sse r- inc lud e d o ff

e ns e and if the re is “ ‘s ome e vid e nc e ’ t hat, i f t h e d ef en d ant is g uilty , he is g uilty only of the lesse r-include d offe nse.” Flor es v . S tate , 245 S.W .3d 432, 439 (Tex. Crim. App. 2008). An offense is a lesser included offense if the eleme nts of the lesser offe nse ar e “e stablished by proof of the s ame or less than all the facts require d to establish the offe nse cha rg ed.” T EX . C ODE C R IM . P R OC . ANN . a

rt . 3 7. 09 (1 ) ( Ve rn on

20 06 ); se e Ha ll v . S

tate , 2 25 S.W. 3d

52 4, 53 6 ( Te x. Cr im. Ap p. 20 07 ). Th e e sse nti a l e le me nts of a tte mpt e d c a

pit a l murd e r a s c ha

rg e d in the ind ic tme nt a g a ins t Guer ra a re: (1) Guer

ra, (2) acting with the s pecif ic intent to kill Officer

Castano, (3) while Offic er Castano was discha

rg ing a lawful duty , (4) knowing Castano was a peac e office r, (5) c ommitt ed an act amounting to more than mere prepa ration t hat t ended but failed to e ffe ct the off ense of capital murder. SeeT EX . P EN A L C ODE ANN . § 15.01(a) (Ve rnon 2003); § 19.03(a)(1) (Ve rnon Supp. 2008). The e lements of ter

roristic threat as they would apply in this case are : ( 1) Guer ra, (2) with the intent to place O ffice r Castano in fe ar of imminent serious bodily

injury , (3) thre aten ed Officer Castano with a offe nse involving violenc e. SeeT EX . P EN A L C ODE ANN . § 22.07(a) (2) (Vernon Supp. 2008). Guer ra a rgues there is some evidence his only intent was to place office r Castano in fe ar of imminent serious bodi ly injury
. His argument is based on his view that the e vidence demonstrated the we a po n w a s n ot c a

pa ble of be ingfi re d a

nd thu s G ue rr a

c ou ld n ot h ave fo rm e d an int e nt t o k ill
. As discussed above , the evidenc e demonstrates the weapon could have been fired. Further, the fac t no round wa s chambe red in the w eapon is no evidenc e that Guer ra’ s intent was only

to place O ffice r Castano in fea

r of imminent serious bodily injury
. Although the evidenc e may have shown Offic er Castano was in fe ar he would suffe r death or serious bodily injury at G u er ra ’s hands, ther e is no04
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- 7- evidenc e Gue rra ’s intent was simply to pla ce O ffice r Castano in fe ar of serious bodily

injury rathe r than to kill Officer

Castano. Wit hout decidingwhether terror istic threat may

be a le sser off

ense of attempted ca

pi t al murder, w e hold Guer

ra w as not entitled to the re quested jury char g e bec ause the re w as no evide nce that if g uilty , Guer

ra was guilty only of terr oristic threat. Guerr a’s se cond point of er ror is over ruled. REA D ING O F T E S T I M ONY T O J URY I n his final point of err or, Gue rra complains the trial cour

t abused it s discretion by

rea ding te sti mony to t he jur y duri ngits de lib e ratio ns . A ft e r de lib e ratio ns be g an, the jur y a sk e d to h ave so me of Mora les and Of

fice r Castano’s te stimony rea d to them. T h e trial c ourt instructed the c ourt repor ter to loc ate the rele vant testimony and print the testimony for revie w by the attorney s. When the tr ia l c ourt

a sk e d th e pa

rt ie s if the y ha d any ob

je c tio n, Gu e rr a ’s c ouns e l st a te d, “ We d on ’t ob je c t. We believe it’s an a

ppropriate response .” B eca use Gue rra

did not object to the testimony beingrea d back to the jury , he failed to pr eser ve his complaint for a

ppellate r eview. SeeT EX . R. A PP . P. 33.1. The judg ment of the trial c ourt is affir med.

Steven C. Hilbig, Just ice DO NO T PU B L I SH