1. Notice of rejected filing from Court of Criminal Appeals.
Fwd: eFileTexas.gov ^ Filing Returned - 5500297

Barry to you snow details

Sent from my iPhone

Begin forwarded message:

From: No-Replv(5)eFileTexas,aov

Date: June 2, 2015 at 11:44:02 AM CDT

To: barryaiorinson60@amail.com

Subject eFileTexas.gov ^ Filing Returned - 5500297

u? FILE! TEXAS.gov

The filing below has been reviewed and has been returned for further action. Please refile with the corrections outlined below. The clerk's <

forthe file stamp when the corrections are made ina timely manner.

Reject Reason

Return Comment

Court

Case Style

Date/Time Submitted

Filing Type:

Activity Requested:

Filed By:

Other

The petition fordiscretionary review does notcontain a copy ofthe court ofappei

review does not contain the identityof Judge, Parties and Counsel [Rule 68.4(a)]

table ofcontents[Rule 68.4(b)]. The petition fordiscretionary review does not cot

You haveten daysto submit a corrected petition.

Qo-;;ur?ram Oataiis

Courts of Appeals

6/1/2015 6:22:04 PM

Petition for Discretionary Review

EFileAndServe

barry Johnson
2. Motion to extend time to file PDR.
NO.

DAMIEN GUERRERO. § IN THE TEXAS

§

VS § COURT OF CRIMINAL

§

STATE OF TEXAS § APPEALS

UNOPPOSED MOTIONTQ EXTEND TIME TO FILE PETION FOR

DISCRETIONARY REVIEW;

TO THE HONORABLE JUSTICES OF SAID COURT;

Now comes Danien Guerrero, Appellant in the above styled and numbered

cause, and moves this Court to grant an extension oftime to file appellant's brief,

pursuant to Rule 38.6 ofthe Texas Rules of Appellate Procedure, and for good

cause shows the following:

1. In this proceeding Appellant seeks review ofthe decision ofthe Second

Court of Appeals, in Damien Guerrero vs. STATE OF TEXAS , cause number

O2-13-00611.

3. On June 1, 2015, appellant submitted a Petition for Review. Due to

errors by the undersigned counsel, the filing was returned unfiled on June 2, 2015,

and appellant was granted ten days to submit a corrected petition, which was June

12,2015. The efiletexas.gov filing returned was envelope 5500297.

7. This motion is filed within 15 days of the ten day extension that the
court permitted when the filing was rejected, and therefore is timely pursuant to

Rule 68.2 ( c ), T.R.A.P.

8. Defendant is currently incarcerated.

9. Appellant seeks an extension to Monday, June 29, 2015 to file the

corrected Petition for Discretionary Review.

9. Appellant relies on the following facts as good cause for the requested

extension:

• Counsel for Appellant did not intentionally fail to timely file, but

after filing aPetition that was defective, inadvertently overlooked

the email informing him that the filing was rejected, and

therefore did not timely file the corrected petition.

• Assistant District Attorney, Helena Faulk of the Tarrant County

Criminal District Attorney's office has indicated by telephone

thatshe has no objection to anextension being granted.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court grant this Motion To Extend Time to File Appellant's Petition for

Discretionary Review, and for such other and further relief as the Court may deem

appropriate.
Respectfully submitted,

Is/ Barry G. Johnson

BARRY G.JOHNSON

2821 E. Lancaster

Fort Worth, Texas 76103

Tel: (817) 531-9665

Fax: (817)534-9888

barrygj@aol.com

State Bar No. 10683000

Attorney for Damien Guerrero

CERTIFICATE OF SERVICE

I certify that on June 26, 2015, a true and correct copy ofthe above

and foregoing document was served on the District Attorney's Office, Tarrant

County, Texas, by email to coaappellatealerts@tarrantcountv.com .

/s/ Barry G. Johnson

BARRY G. JOHNSON
3.Order denying Motion to Extend Time.
F

OFFICIAL NOTICE FROMCOURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

7/1/2015 COA No, 02

GUERRERO, DAMIEN Tr:Ct. No. 12635520 

On this day the Appellant's motion for extension of time to f

discretionary review has been denied. A' noncompliant petition 

concurrently with this motion; the petition will not be filed and no fur

be taken on this matter.

Abe

BARRY G. JOHNSON

2821 E. LANCASTER

FT WORTH, TX 76103

* DELIVERED VIA E-MAIL *
4. Petition for Discretionary Review.
No.

IN THE COURT OF CRIMINAL APPEALS

DAMIEN GUERRERO

V.

THE STATE OF TEXAS

Appellant's Petitions for Discretionary Review ofthe Decision off the Second

Court off Appeals inCause No. 02-13-00611, Affirming the Judgment off the

Trial Court im Cause Number 1263552D In Criminal District Court No. 4 off

Tarrant County, Hon. Mike Thomas, Presiding.

APPELLANT'S PETITION FOR REVIEW

BARRY G.JOHNSON

State Bar. No. 10683000

2821 E. Lancaster

Ft. Worth, Texas 76103

Barrvgi@aol.co,

817-531-9665

817-534-9888 FAX

Attorney for Appellant
Now comes appellant, Damien Guerrero, and files this Petition for

Discretionary Review, andwould show thisHonorable court the following:

IDENTITY OF JUPGE,PARTIES, AND COUNSEL

Trial Judge: Honorable Mike Thomas.

Appellant is Damien Guerrero.

The State ofTexas prosecuted the case.

TrialCounsel forthe state: PaigeSimpson and Mark Thielman,

AssistantDistrictAttorneys ofTarrantCounty, 401 W. Belknap, Fort

Worth, Texas 76196.

TrialCounsel forthe defense: Terry Barlow, 1100 E.Weatherford, FortWorth,

Texas 76101, and Dominic Bauman, 6207 Airport, Freeway, Ft worth, Texas

76117.

Appellate Counsel for the state: Charles Mallin, Assistant District, Attorney of

TarrantCounty, 401 W. Belknap, Fort Worth, Texas76196.

Appellate Counsel for the defendant: Barry G. Johnson, 2821 E. Lancaster, Fort

Worth, Texas 76103.

APPELLANT'S PETITION FOR REVIEW - Page 2
TABLE OF CONTENTS

Page

Identity ofjudge, parties and counsel 2

Table ofContents 3

Index ofAuthorities 4

Statement Concerning Oral Argument 5

Statement ofthe Case 5

Statement ofProcedural History 5

Questions Presented 5

Argument "

Prayer for Relief 11

Appendix (attached as pdf)

APPELLANT'S PETITION FOR REVIEW - Page 3
TABLE OF AUTHORITIES

Page

Brooks v. State

323 S.W.3d 893(Tex. Crim. App. 2010) 10

Williams v. State

235 S.W.3d742, 750. Tex. Crim. App. 2007)........... 10

APPELLANT'S PETITION FOR REVIEW - Page 4
STATEMENT CONCERNING ORAL ARGUMENT

Appellant contends thatoral argument would be helpful to the court in

unraveling the complex testimony andclaimed gaps in the proofthat appellant

claims are present.

' STATEMENT OF THE CASE

Appellant was convicted ofsexual assault ofa child and indecency with a

child and was sentencedto seven years incarceration for each offense.

STATEMENT OF PROCEDURAL HISTORY

Date ofthe Court ofAppeals decision: March 26, 2015.

Date ofthe Motion for Rehearing: April 10, 2015.

Date the ruling on theMotion for Rehearing disposed: April 30. 2015.

Date Petition for Discretionary review submitted: June 1, 2015.

Date that the Petition was returned unfiled: June 2, 2015.

Date given by the court to file corrected Petition: June 12, 2012 (ten days from

June 2, 2012).

Date Motion for extension to file Petition for discretionary Review Filed: June 26,

2015.

QUESTIONS PRESENTED FOR REVIEW

Is DNA evidence offered to prove that penetration occurred legally

sufficient if neither the vaginal swab taken from the alleged victim nor the buccal

APPELLANT'S PETITION FOR REVIEW - Page 5
swab taken from the accused are specifically identified as having been tested and

compared?

Was the evidence was legally sufficient to support thejury's verdict.

STATEMENT OF THE CLAIMED ERROR IN THE OPINION

Inits Opinion, onpage 5, the court states the following:

"The forensic analyst said she recognized her initials on the buccal swabs

and the vaginal swabs. Those were identified as State's Exhibits 24B and 24C.

The buccal swab was specifically identified as State's Exhibit 24B. By the process

of elimination, thevaginal swabs were State's Exhibit 24C."

ARGUMENT AND AUTHORITIES

The court ofappeals erred inconcluding that the evidence was legally

sufficient to support the jury's verdict. Rachel Burch did not specifically identify

Exhibit 24 Cas the vaginal swab, and therefore, the testimony ofthe alleged victim

that vaginal penetration occurred was not corroborated by physical evidence. In

addition, Appellant would show that the DNA analyst did not testify that the

samples she testified to were Exhibits 27A and 27B, which were the known

samples.

It is important to carefully examine the words used in the testimony ofDNA

analyst Rachel Burch concerning the Exhibits.

APPELLANT'S PETITION FOR REVIEW - Page 6
TheMaster Exhibit Index, Reporter's Record, Vol. 6, tells us thatExhibits

24B and 24 C, are boxes. In other words the swabs themselves were notmarked

as evidence, butthe boxes that contained the exhibits were marked.

Exhibit 24, admitted for purposes of the record only, and not for use by the

jury, is described in the Master Exhibit List as "sexual assault kit", appears to be a

sealed container in which Exhibit 24A through 24F were stored. RR. V. 3, p.3.

Ms. Burch testified that on March 28,2012, she received an envelopefrom

the FortWorth Police Department thatwas labeled with the complainant's name.

RR. V. 3, p.121. She stated that within that envelope was a box, and that she was

asked totest the vaginal swabs and the buccal swabs ofthe complainant. RR, V.3,

p.121. Ms. Burch testimony concerning the identification ofthe Exhibits was as

follows:

Q. (by Ms. Simpson) I'mgoing to show you what's been admitted as '

State's 24, for purposes ofthe record, and askif you recognize

anything onthe outside of thispackaging ?

A. Yes, I do.

Q. What do you recognize ?

A. I recognize our lab number aswell as my initials and date.

Q. And then State's 24A came from State's 24, and there are five items

here that have been admitted, 24B,C , D, E and F And ask if you

recognize any ofthe handwriting on those exhibits?

APPELLANT'S PETITION FOR REVIEW - Page 7
A: I recognize my initials and date as well as —move the sticker—my

initials and date on the buccal swabs for the reference as well as on

the vaginal swabs.

Q. And that would be State's 24B and 24C?

A. Correct.

Q. But you do not have any handwriting on D, E, or F?

A. Correct.

Q. Okay. So you -State's 24 B is Complainant's buccal swab?

A. Correct.

Q. And you were asked to look at vaginal swabs as well?

A. Correct

Q. State's Exhibit 27 has two items inside, 27A and 27B. I'll ask you if

you recognize any ofthe handwriting on 27A, or 27B?

A. I recognize initials and date on State's 27A and 27B.

RR,V.3.pp.l21-123

Q. Anddid you compare whatwas contained within thevaginal swab to

the two buccal swabs that you had?

A. Yes, I did.

RR,V.3.pp.l21-123.

Maria Hinojosa testified thatExhibit 27Aand 27B were swabs thatwere use

to collect buccal samples from appellant. RR, V.3, p 80.

Although it is not disputed that samples were obtained from appellant, it

should be noted that the Master Exhibit List refers to 27A and 27b as Envelopes.

APPELLANT'S PETITION FOR REVIEW - Page 8
RR, V.6. p.3. Ms. Hinojosa testified that sterilized Q-tips were used to collect

saliva samples from appellant, which were his b buccal samples. RR,V.3, p.77.

So, apparently, the envelopes marked as Exhibits 27A and 27B contained the Qtips which were used to collect the buccal samples.

Ms. Burch testified that she recognized 27A and 27B, because ofinitials and

date, but does not state whose initials she recognized.

Significantly, Ms. Burch did not specifically testify that 27A and 27B, or the

contents contained therein, were the items that she tested for purpose of DNA

analysis.

She did testify that a "reference was obtained from Damien Guerrero" was

added to her table, or chart, for comparison purposes, RR, V.3, p.126) , but never

stated that the data was obtained as the result oftesting Exhibit 27 or 27A.

There is also some confusion as to the number ofswabs that were obtained

from the complainant. There is no testimony as to how many buccal and vaginal

swabs were obtained from her. There was no testimony as to whether one swab

was equal to one Q-tip.

Referring to the material tested that was obtained from the complainant, she

testified that "we were asked to test the vaginal swabs" (plural) "and also the

buccal swabs" (plural). RR, V.3, p. 121, Line 9.

APPELLANT'S PETITION FORREVIEW - Page 9
Later onthat page she used the singular and stated that for "that submission

of evidence I waslooking at a buccal swab from "the complainant".

Ms. Burch was asked the following:

"Q. When you looked atthe contents ofthe vaginal swab and compared it

with the buccal swab ofDamien Guerrero, did you make any

conclusions?

A. Yes, I did." RR, V.3, p.125-125.

She testified that her conclusion was that Damien Guerrero cannot be

excluded as the contributor ofthe spermfraction. RR, V.3, p.128.

The above summary and quotation from the testimony lead to two

conclusions. There was no direct evidence that Exliibit 26C contained the vaginal

swab ofthe complainant and there was no testimony that Exhibits 27A and 27B,

known to be buccal swabs of appellant, were the swabs tested and compared tothe

vaginal swab ofthe complainant.

When the sufficiency of the evidence is challenged, an appellate court must

view all evidence inthe light most favorable to the verdict to determine ifthe jury

was rationally justified in finding guilt beyond areasonable doubt. Brooks v. State,

323 S.W.3d 893(Tex. Crim. App. 2010). The court must ensure that the evidence

presented actually supports a conclusion that the defendant committed the crime.

Williams v. State, 235 S.W.3d 742, 750. (Tex. Crim. App. 2007).

APPELLANT'S PETITION FOR REVIEW - Page 10
In this petition we have attempted to demonstrate the problems with the

DNA evidence in the trial. In its opinion, the court conceded that it took the

process of elimination to connect up the vaginal swab to Exhibit 24C.

With respect to the appellant's DNA, to determine that the analyst's

conclusion that there was a match requires the court to fill in the blanks with

testimony that was not presented to conclude that she did test 27A and 27B,

because she did not testify to it.

In the State's closing argument, the importance of the DNA evidence was

emphasized by the prosecutor's statement that first, appellant "left his sperm inside

of her sexual organ." Then, the prosecutor said that there "are 5.7 quintillion

reasons to find this man guilty", quoting the statistic testified to by the DNA

analyst as to the likelihood ofappellant being the person whose DNA was found.

CONCLUSION AND PRAYER

Because the gap in the state's proof is so wide and so significant, appellant

prays that this Petition for Review be granted, and upon hearing, that this court

reverse and render judgment of acquittal on all charges, or in the alternative , to

remand this matter for a new trial on all charges, or, in the alternative, to render a

judgment of acquittal as to the offense of aggravated sexual assault of achild, and

APPELLANT'S PETITION FOR REVIEW - Page 11
to remandthe case for a new trial on the charge of Indecency with a Child, or for a

new punishment hearing onthe offense ofIndecency with a Child..

/s/ Barry G. Johnson

Barry G. Johnson

BARRY G. JOHNSON

State Bar. No. 10683000

2821 E. Lancaster

Ft. Worth, Texas 76103

Barrygj@aol.co,

817-531-9665

817-534-9888 FAX

Attorney for Appellant

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document upon

Sharen Wilson, Attorney for Appellee, by email, on this the 26th day ofJune 2015.

/s/ Barry G. Johnson

Barry G. Johnson

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document complies with the requirement

oF T.R.A.P. 9.4(i)(3) and the word count is 1,906 as computed by the program in

which this document was prepared.

/s/ Barrv G. Johnson

Barry G. Johnson

APPELLANT'S PETITION FOR REVIEW - Page 12
DAMIEN GUERRERO

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13=00611-CR

V.

THE STATE OF TEXAS

APPELLANT

STATE

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

TRIAL COURT NO. 1263552D

Ajury convicted Appellant Damien Guerrero of the offenses of aggravated

sexual assault of a child and indecency with a child by contact. The trial court

assessed concurrent seven-year terms ofimprisonment as punishment. In three

issues, Appellant asserts the evidence is insufficient, the trial court erred in

admitting text messages between him and the Complainant, and the jury

'See Tex. R. App. P. 47.4.
5. Motion for Rehearing filed in the Court of Appeals.
0243=00611= CR

IN THE COURT OF APPEALS FOR

THE SECOND DISTRICT OF TEXAS

FORT WORTH, TEXAS

DAMIEN GUERRERO

V.

THE STATE OF TEXAS

On appeal from theCriminal District CourtNumber

Tarrant County, Texas

Cause No. 1263552D

Hon. MIKE THOMAS, Presiding Judge

APPELLANT'S MOTION FOR REHEARING

BARRY G. JOHNSON

State Bar. No. 10683000

2821 E. Lancaster

Ft. Worth, Texas 76103

Barrygj@aol.com

817-531-9665

817-534-9888 FAX

Attorney for Appellant

ORAL ARGUMENT IS REQUESTED
02=13=00611= CR

IN THE COURT OF APPEALS FOR

THE SECOND DISTRICT OF TEXAS

"FORT WORTH, TEXAS

DAMIEN GUERRERO

THE STATE OF TEXAS

Now comes appellant, Damien Guerrero, and files this

Motion for Rehearing, and would show this Honorable court

the following:

ISSUE PRESENTED

The court of appeals erred in concluding that the evidence was

legally sufficient to support the jury'sverdict.

STATEMENT OF THE CLAIMED ERROR IN THE OPINION

In its opinion, on page 5, the court states the following:

"The forensic analyst said she recognized her initials on the
buccal swabs and the vaginal swabs. Those were identified as

State's exhibits 24B and 24C. The buccal swab was specifically

identified as State's exhibit 24B. By the process of elimination,

the vaginal swabs were State's Exhbit 24C."

THE CLAIMED ERROR

Rachel Burch did not specifically identify Exhibit 24C as the

vaginal swab, and therefore, the testimony of the alleged victim

that vaginal penetration occurred was not corroborated by

physical evidence. In addition, Appellant would show that the

DNA analyst did not testify that the damples she testified were

Exhibits 27A and 27B, which were the known samples of

appellant.
ARGUMENT AND AUTHORITIES

It is important to carefully examine the words used in the

testimony of DNA analyst Rachel Burch concerning the

exhibits.

The Master Exhibit Index, Reporter's Record , Vol. 6, tells

us that Exhibits 24 Band 24 C, are boxes. In other words the

swabs themselves were not marked as evidence, but the

boxes that contained the exhibits were marked.

Exhibit 24, admitted for purposes of the record only, and

not for use by the jury, is described in the Master Exhibit List as

"Sexual assault kit", appears to be a sealed container in which

Exhibit 24A through 24F were stored. RR, V. 3, p.3. Ms. Burch

testified that on March 28, 2012, she received an envelope

from the Fort Worth Police Department that was labeled with

the complainant's name. RR, V. 3, p.121. She stated that within

that envelope was a box, and that she s asked to test the
vaginal swabs and the the buccal swabs of the complainant. RR,

V.3, p.m.

Ms. Burch testimony concerning the identification of the

exhibits was as follows:

Q. (by Ms. Simpson) I'm going to show you what's been

admitted as State's 24, for purposes of the record, and ask if

you recognize anything on the outside of this packaging ?

A. Yes, I do.

Q. What do you recognize ?

A. Srecognize our lab number as well as my initials and

date.

Q. And then State's 24A came from State's 24, and there

are five items here that have been admitted, 24B, C, D, E and

F. And ask ifyou recognize any of the handwriting on those

exhibits ?

A. Irecognize my initials and date as well as —move the

sticker—my initials and date on the buccal swabs for the

reference as well as on the vaginal swabs.

Q. And that would be State's 24B and 24C ?
A. Correct.

Q. But you do noy have any handwriting on D, E, or F?

A. Correct.

Q. Okay. So you -State's 24 Bis)) Complainant's)) buccal

swab ?

A. Correct.

Q. And you were asked to look at vaginal swabs as well ?

A. Correct

Q. state's exhibit 27 has two itemsinside, 27A and 27B. Ill ask

you if you recognize any ofthe handwriting on @&, 27A, or

27B?

A. Irecognize initials and date on State's 27A and 27B.

RR, V. 3. pp.121-123.

Q. And did you compare what was contained within the

vaginal swab to the two buccal swabs that you had ?

A. Yes, 1did.

RR, V. 3. pp.121-123.

Maria Hinojosa testified that Exhibit 27A and 27B were
swabs that were use to collect buccal samples from appellant.

RR, V.3, p 80.

Although it is not disputed that samples were obtained

from appellant, it should be noted that the Master Exhibit List

refers to 27A and 27b as Envelopes. RR, V.6. p.3. Ms. Hinojpsa

testified that sterilized Q-tips were used to collect saliva

samples from appellant, which were his b buccal samples.

RR,V.3, p.77. So, apparently, the envelopes marked as Exhibits

27A and 27B contained the Q-tips which were used to collect

the buccal samples.

Ms. Burch testified that she recognized 27A and 27B,

because of initials and date, but dos not state whose initials she

recognized.

Significantly, Ms. Burch did not specifically testify that 27A

and 27B, or the contents contained therein, were the items

that she tested for purpse of DNA analysis.

She did testify that a "reference was obtained from
Damien Guerrero" was added to her table, or chart, for

comparison purposes, RR, V.3, p.126), but never stated that

the data was obtained as the result of testing Exhibit 27 or 27A.

There is also some confusion as to the number of swabs

that were obtained from the complainant. There is no

testimony as to how many buccal and vaginal swabs were

obtained from her. There was no testimony as to whether one

swab was equal to one Q-tip.

Referral to the materia! tested that was obtained from the

complainant, she testified that "we were asked to test the

vagina! swabs" (plural) "and also the buccal swabs" (plural).

RR, V.3, p. 121, Line 9. Later on that page she used the singular

and stated that for "that submission of evidence I was looking

at a buccal swab from " the complainant.

Ms. Burch was asked the following:

"Q, When you looked at the contents ofthe vaginal swab

and compared it with the buccal swab of Damien Guerrero, did
you make any conclusions ?

A. Yes, I did." RR, V.3, p.125-125.

She testified that her conclusion was that Damien

Guerrero cannot be excluded as the contributor of the sperm

fraction. RR, V.3, p.128.

The above summary and quotations from the testimony

lead to two conclusions. There was no direct evidence that

Exhibit 26C contained the vaginal swab of the complainant,

and there was no testimony that Exhibits 27a and 27B, known

to be buccal swabs of appellant, were the swabs tested and

compared to the vaginal swab of the complainant.

When the sufficiency of the evidence is challenged, an

appellate court must view all evidence in the light most

favorable to the verdict to determine if the jury was

rationally justified in finding guilt beyond a reasonable doubt.

Brooks v. S 323 S.W.3dtate the court must ensure that the

evidence presented actually supports a conclusion that the

defendant committed the crime. Williams v. state 235 S.W.3d

742, 750. (Tex. Crim. App. 2007).
In this motion we have attempted to demonstrate the

problems with the DNA evidence in the trial. In its opinion, the

court conceded that it took the process of elimination to

connect up the vaginal swab to Exhibit 24C.

With respect to the appellant's DNA, to determine that

the analyst's conclusion that there was a match requires the

court to fill in the blanks with testimony that was not presented

to conclude that she did test 27A and 27B, because she did

not testify to it.

In the State's closing argument, the importance of the

DNA evidence was emphasized by the prosecutor's statement

that first, appellant "left his sperm inside of hersexual organ."

Then, the prosecutor said that there "are 5.7 quintillion reasons

to find this man guilty", quoting the statistic testified to by the

DNA analyst as to the likelihood of appellant being the person

whose DNA was found.

10
CONCLUSION AND PRAYER

Because the gap in the state's proof is so wide and so

significant, appellant praysthat this motion for rehearing be

granted, and upon rehearing, to reverse and remand this

matter for a new trial on all charges, or, in the alternative, to

render a judgment of acquittal as to the offense of aggravated

sexual assault of a child, and to remand the case for a new trial

on the charge of

Respectfully submitted,

/s/ Barry G. Johnson

Barry G. Johnson

SB#10683000

2821 E. Lancaster

Fort Worth, Texas 76103

barrygi@aol.com

817-531-9665

fax 817-534-9888

Attorney for Appellant

ii
CERTIFICATE OF SERVICE

I hereby certify that 1have served a copy of the foregoing

document upon Sharen Wilson, Attorney for Appellee, by

email, on this the 10th day of April,2015.

/s/ Barry G. Johnson

Barry G.Johnson

12
6. Order Denying Motion for Rehearing
DAMIEN GUERRERO

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

HO. 02=13-00611-CR

V.

THE STATE OF TEXAS

FILE COPY

APPELLANT

STATE

FROM CRIMINAL DISTRICT COURT NO. 4 OFTARRANT COUNTY

TRIAL COURT NO. 1263552D

ORDER

We have considered "Appellant's Motion for Rehearing."

It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of March 26, 2015, stand

unchanged.

The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.

SIGNED April 30, 2015.
/s/ Anne Gardner

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER and WALKER, JJ.

WALKER, J. would grant.

FILE COPY
7. Opinion of the Court of Appeals
DAMIEN GUERRERO

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02=13=00611-CR

V.

THE STATE OF TEXAS

APPELLANT

STATE

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

TRIAL COURT NO. 1263552D

MEMORANDUM OPINION1

Ajury convicted Appellant Damien Guerrero of the offenses of aggravated

sexual assault of a child and indecency with a child by contact. The trial court

assessed concurrent seven-year terms ofimprisonment as punishment. In three

issues, Appellant asserts the evidence is insufficient, the trial court erred in

admitting text messages between him and the Complainant, and the jury

1See Tex. R. App. P. 47.4.
selection was unauthorized because there was no order referring the magistrate

to preside over the voir dire. We affirm.

The Indictment

In count one of the indictment, the State alleged that Appellant on or about

October 11, 2011, in Tarrant County, Texas, intentionally or knowingly caused

the female sexual organ of Complainant, a child younger than fourteen years of

age, to contact the penis of Appellant. Tex. Penal Code Ann.

§ 22.021 (a)(1)(B)(iii), (2)(B) (West Supp. 2014). The State alleged the offense of

aggravated sexual assault of a child, which is a first degree felony. Id.

§ 22.021(e), First degree felonies are punishable by imprisonment for life or for

any term of not more than ninety-nine years or less than five years and a fine not

to exceed $10,000. Id. § 12.32 (West 2011).

The State waived count two.

In count three, the State alleged that Appellant on or about October 11,

2011, in Tarrant County, Texas, intentionally, with the intent to arouse or gratify

his sexual desire, engaged in sexual contact by touching the breast of

Complainant, a child younger than seventeen years. Id. § 21.11(a)(1) (West

2011). The State alleged the offense of indecency with a child by contact, which

is a second degree felony. Id. § 22.11(d). Second degree felonies are

punishable by imprisonment for any term of not more than twenty years or less

than two years and a fine not to exceed $10,000. Id. § 12.33 (West 2011).
Evidence

On the morning of October 11, 2011, Appellant and Complainant, who was

thirteen, exchanged text messages about Complainant skipping school to

perform fellatio on Appellant. Toting her Dora the Explorer backpack,

Complainant left her middle school campus during lunch, got into Appellant's

truck, and went to Appellant's apartment, where she and Appellant had sexual

intercourse. The next day, when the school's police resource officer and

Complainant's mother confronted Complainant about skipping school the

previous day, Complainant said she had left school to have sex with a male

whose name she did not know.

A school resource officer took Complainant to Cook Children's Hospital for

a sexual assault examination. When the sexual assault nurse took

Complainant's history, Complainant identified Appellant as the person with whom

she had sex and, further, indicated the sex was consensual. Complainant

reported penis-to-vagina contact as well as penetration. Complainant also

admitted being fondled, which meant being touched with the hand on the breast

and genitalia under the clothes. DNA testing later confirmed Appellant had

engaged in vaginal intercourse with Complainant.

Complainant testified she was born in December 1997 and wasthirteen on

October 11, 2011. About a month before the offense, she sawAppellant at a tire

store, thought he was attractive, approached him, and asked him for his number

under the pretext that it was her sister who wanted to meet him. Complainant
said she lied to Appellant about her age and told him she was fifteen.

Complainant said she did not know how old Appellant was. She did not see

Appellant again until October 11, 2011, but had been communicating with him by

texting.

Regarding the offense, Complainant testified at trial that Appellant touched

her breasts with his hands. She also said that Appellant used his hands and

penis to touch her vagina and that she and Appellant eventually had penetrative

sexual intercourse. Complainant said initially she wanted to, then she did not

want to, but when she told Appellant to stop, he did not.

Appellantwas nineteen at the time of the offense.

Sufficiency of the Evidence

In hisfirst issue, Appellant asserts the evidence is insufficient because the

testimony concerning the DNA evidence did not conclusively link Appellant to the

vaginal swab. Appellant complains that the vaginal swabs were never identified.

We disagree.

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements ofthe crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). The issue on appeal is not whether we as a court

believe the State's evidence or believe the defense's evidence "outweighs" the
State's evidence. Holloway v. State, 695 S.W.2d 112, 115 (Tex. App.—Fort

Worth 1985), afTd, 751 S.W.2d 866 (Tex. Crim. App. 1988). If there is evidence

that establishes guilt beyond a reasonable doubt, and if the trier of fact believes

that evidence, we are not in a position to reverse the judgment on sufficiency of

the evidence grounds. Id.

The sexual assault nurse said she took five swabs off of Complainant's

body for DNA. The five swabs were admitted as State's Exhibits 24B, 24C, 24D,

24E, and 24F. The forensic DNA analyst said she recognized her initials on the

buccal swabs and the vaginal swabs. Those were identified as State's Exhibits

24B and 24C. The buccal swab was specifically identified as State's Exhibit 24B.

By the process of elimination, the vaginal swabs were State's Exhibit 24C. The

forensic DNA analyst also said she discovered the presence of sperm on the

vaginal swab, extracted the DNA from the sperm cells, compared the DNA to a

known sample of Appellant's DNA, and concluded Appellant could not be

excluded as a contributor. She said the odds of someone other than Appellant

being the contributor were "one out of every approximately 5.7 quintillion

individuals of Caucasian, African-American[,] and Southwestern Hispanic

descent."

Appellant also complains that the forensic DNA analyst testified only

generically regarding DNA testing and theory. The forensic DNA analyst said

that the science behind DNA was generally accepted within the scientific

community and that DNA was used for identification on a daily basis. Regarding
reliability, she said her laboratory was certified by the ISO, which she described

as an entity having standards that met and exceeded the national standards.

She also explained that each time she ran a DNA test, her lab required standards

and safeguards that insured the machines used in testing were working correctly.

Appellant cross-examined the forensic DNA analyst at trial. Appellant did

not challenge the validity of the DNA testing and theory. Instead, Appellant got

the forensic DNA analyst to concede that it was possible, although unlikely, that

the minor contributor to the DNA sample was someone other than Complainant.

The analyst said itwas possible but unlikely because the minorcontributor's data

matched Complainant's "so perfectly."

Standing alone, Complainant's testimony provided legally sufficient

evidence to support the convictions. Torres v. State, 424 S.W.Sd 245, 253 (Tex.

APp._-Houston [14th Dist] 2014, pet. refd); Connell v. State, 233 S.W.3d 460,

466 (Tex. App.—Fort Worth 2007, no pet.). It is true Complainant admitted lying

about many other things. However, regarding the offenses themselves, the text

messages and DNA evidence lent considerable credibility to her testimony.

A child under fourteen cannot legally consent to sex. May v. State, 919

S.W.2d 422, 424 (Tex. Crim. App. 1996). Neither offense requires proofthat the

complainant did not consent. Tex. Penal Code Ann. § 22.021.(a)(1)(B)(iii)

(aggravated sexual assault); Id. § 21.11(a)(1) (indecency with a child). Even if a

child complainant consents in fact, that consent is not given any legal effect and

provides no defense. May, 919 S.W.2d at 424.
Viewing the evidence in the light most favorable to the verdict, we hold that

any rational trier offact could have found the essential elements of the offenses

beyond a reasonable doubt. See Winfrey, 393 S.W.Sd at 768. We overrule

Appellant's first issue.

The Admission of Testimony Regarding Complainant's Cell Phone Use

In his second issue, Appellant complains about the testimony of Reginald

Sparks, a forensic computer examiner. Detective David Bell asked Sparks to

extract data from Complainant's cell phone on October 13, 2011. Sparks thought

Detective Bell asked for all the text messages between Appellant and

Complainant. Sparks did not recall Detective Bell's specific request, but Sparks

said if he had been asked for messages before October 11, he would have

provided them. Sparks speculated one explanation for the exhibit not including

texts before October 11 was that he requested and obtained permission to

restrict the scope of the search based upon the volume of text messages and

upon the fact that, on Complainant's particular model, he had to manually

transcribe the texts, which was tedious and time consuming. Sparks said

another possible explanation wasthat Complainant's model stored only a certain

number of messages. Appellant objected on the basis ofoptional completeness;

he argued that providing just the text messages from October 11 would provide

an incomplete and misleading picture to the jury. Complainant's testimony

showed there were text messages before October 11, 2011.
The State responds that Appellant does not complain on appeal about the

admission of State's Exhibit 28, which provides the text messages between

Appellant and Complainant on October 11, 2011. The State contends

Appellant's objection at trial was to State's Exhibit 28 and was not to Sparks's

testimony. The State concludes that because Appellant did not object to

Sparks's testimony, Appellant's complaint is not preserved. See Tex. R. App. P.

33.1(a)(1); Sanchez v. State, 418 S.W.3d 302, 307-08 (Tex. App.—Fort Worth

2013, pet. refd).

The State is correct that at trial Appellant objected to State's Exhibit 28 and

not to Sparks's testimony whereas, on appeal, Appellant complains about

Sparks's testimony and not about State's Exhibit 28. Appellant argues: "Sparks

testified to and authenticated his verbatim transcript of some seventy-four text

messages between the two cell phones, seventy of which occurred within a four

hour period on October 11, 2011, between 8:26 a.m. and 12:30 p.m." However,

we are to construe briefs liberally. See Tex. R. App. P. 38.1(f), 38.9. Appellant's

argument on appeal appears to be that had the trial court not admitted State's

Exhibit 28, Sparks would have had nothing about which to testify. Construing

Appellant's brief liberally, his complaint is about the admission of State's Exhibit

28 based upon the rule ofoptional completeness.

The rule ofoptional completeness provides:

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When part of an act, declaration, conversation, writing or recorded

statement is given in evidence by one party, the whole on the same

subject may be inquired into by the other, and any other act,

declaration, writing or recorded statement which is necessary to

make itfully understood or to explain the same may also be given in

evidence, as when a letter is read, all letters on the same subject

between the same parties may be given. "Writing or recorded

statement" includes depositions.

Tex. R. Evid. 107.

Optional completeness provides a mechanism whereby the objecting party

may "complete" evidence that has been offered and admitted into evidence by

the adverse party for the purpose of correcting any potentially misleading

impression. See Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.—San

Antonio 2001, no pet.). Rule 107 is not a rule of exclusion but is, instead, a rule

of admissibility. Lomax v. State, 16 S.W.3d 448, 450 (Tex. App.—Waco 2000,

no pet.). Additionally, the rule of optional completeness requires the omitted

portions be "on the same subject" and "necessary" to make the earlier admitted

evidence fully understandable. Sauceda v. State, 129 S.W.3d 116, 123 (Tex.

Crim. App. 2004); Mendiola, 61 S.W.3d at 545. Even assuming there were

earlier texts between Appellant and Complainant on the same subject, Appellant

has notshown they were necessary to make the texts of October 11, 2011, fully

understandable.

Citing Brady v. Maryland, Appellant also argues the State was required to

provide evidence favorable to the accused. 373 U.S. 83, 83 S. Ct. 1194 (1963).

9
Appellant did not object at trial on the basis of a Brady violation. Appellant has

not preserved that argument. Tex. R. App. P. 33.1(a)(1).

We overrule Appellant's second issue.

The Absence of an Order of Referrai Permitting the Magistrate to Condyct

Voir Dire

In his third issue, Appellant complains that a magistrate presided over voir

dire, but the record does not contain an order of referral by the elected judge.

Appellant contends that the judge had to sign an order of referral specifying the

magistrate's duties. Appellant contends that without an order of referral, the

magistrate had no authority to act. Ex parte DeLeon, No. 05-11-00594-CR, 2011

WL 3690302, at *2 (Tex. App.—Dallas Aug. 24, 2011, no pet.) (not designated

for publication) (relying on Ex parte Pardun, 727 S.W.2d 131, 132-33 (Tex.

App.—Dallas 1987, no pet.) (per curiam)2).

The State responds that Appellant did notobject to the magistrate and that

this court has previously ruled that in order to challenge a trial court's referral of

voir dire to a magistrate, the appellant must have preserved error in the trial

court. See Nash v. State, 123 S.W.3d 534, 536-37 (Tex. App.—Fort Worth

2003, pet. refd) (citing Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort

Worth 2002, pet. ref'd); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—

Fort Worth 1994, pet. refd)); Hoag v. State, 959 S.W.2d 311, 313 (Tex. App.—

2ln Pardun, the magistrate exceeded the scope of the referral order.

Pardun, 727 S.W.2d at 132-33. The opinion never addresses a failure to

preserve error orthe implications of a failure to preserve error. Id.

10
Fort Worth 1997, no pet.) (citing Davis v. State, 956 S.W.2d 555, 557, 560 (Tex.

Crim. App. 1997)). The State concedes DeLeon holds in Appellant's favor.

However, the State correctly asserts DeLeon is not binding authority upon this

court. See Shook v. State, 156 Tex. Crim. 515, 517, 244 S.W.2d 220, 221

(1951) (op. on reh'g) (stating that courts are not bound by the decisions of other

courts of equal jurisdiction). The State also points out that DeLeon is not a

published case. Unpublished criminal opinions have no precedential value. Tex.

R. App. P. 47.7(a). The State concludes, therefore, that this court should follow

its own earlier authority and overrule Appellant's third ground for failure to

preserve error. Tex. R. App. P. 33.1(a)(1); Nash, 123 S.W.3d at 537. Because

DeLeon has no precedential value as an unpublished opinion, and because our

own Nashopinion is controlling on this issue, we agree with the State.

We overrule Appellant's third issue.

Conclusion

Having overruled Appellant's three issues, we affirm the trial court's

judgment.

1st Anne Gardner

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2015

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