Herrada v. State

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SERGIO HERRADA AKA SERGIO JOSE HERRADA AKA SERGIO JOSE GOMEZ HERRADA, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-22-00374-CR

Court of Appeals of Texas, Seventh District, Amarillo

November 30, 2023

Do not publish.

On Appeal from the 460th District Court Travis County, Texas Trial Court No. D-1-DC-19-301517, Honorable Selena Alvarenga Presiding

Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

MEMORANDUM OPINION

Alex Yarbrough Justice

Following a plea of not guilty, Appellant, Sergio Herrada, a/k/a Sergio Jose Herrada, a/k/a Sergio Jose Gomez Herrada, was convicted by a jury of murder with an affirmative finding on use of a deadly weapon, not a firearm, and was sentenced to fifty years' confinement.^[1] A fine of $5,000 was waived by the trial court. The judgment reflects a special finding pursuant to article 42.013 of the Texas Code of Criminal Procedure that the offense involved family violence. He challenges his conviction by the following nine issues:

(1) the trial court abused its discretion in denying his motion for continuance after the State failed to disclose Brady material until two days before trial;

(2) the trial court abused its discretion in overruling a challenge for cause for bias which resulted in use of a peremptory challenge and an objectionable juror sitting on the jury;

(3) the trial court abused its discretion in denying his motion for mistrial after the State impermissibly commented on his post-arrest silence during opening arguments;

(4) the trial court abused its discretion in denying his motion for mistrial after the State violated a motion in limine by soliciting testimony regarding an extraneous offense;

(5) the trial court abused its discretion in admitting evidence of the decedent's cell phone found by a private citizen who broke into his work van without his consent;

(6) the trial court abused its discretion in admitting the decedent's cell phone records without complying with Rule 902(10) of the Texas Rules of Evidence;

(7) the trial court abused its discretion in denying his motion for mistrial after the State violated the motion in limine by soliciting testimony from Detective Ramirez about his jail calls and his custodial status after failing to advise him of the trial court's order;

(8) the trial court abused its discretion in sustaining the State's objection to admission of the decedent's loan business ledger book which provided evidence of an alternative perpetrator which violated his constitutional right to present a complete defense; and

(9) the trial court's cumulative errors cast doubt on the integrity of the jury's verdict.

We affirm.^[2]

Background

Appellant was indicted for first degree murder. He was charged with stabbing and cutting his significant other in the neck with a sharp object on August 4, 2019.

The decedent and Appellant lived together for approximately two years before her murder. The decedent had three teenage children, a daughter and two sons, who also lived with them. Appellant drove a white work van and worked as a framer in construction. The decedent had recently begun working cleaning apartments with a close friend.

On the afternoon of August 3, 2019, Appellant was dropped off at his home by a friend driving a black sedan.^[3] After some time the friend left in the sedan and Appellant sat outside his house consuming a beverage for several hours. The decedent returned home from work at approximately 6:00 p.m. in her red Toyota Camry. She had a brief conversation with Appellant who was still sitting outside. She then entered her home.

At approximately 8:00 p.m., Appellant phoned the friend who had previously driven him home. He then drove away in the decedent's Camry. He returned a few minutes later retrieved something from his work van, and left again. Minutes later, Appellant again phoned his friend near a cell tower located at a business named G's Audio. Around that same time, the data location from the decedent's phone placed her phone at the same location even though she was not there. Video footage from the business showed Appellant parked the decedent's Camry in the parking lot and was then picked up by his friend in the black sedan. Appellant texted the decedent's daughter, Arantxa Duarte, to let her know he and her mother would be home late.

On Sunday, August 4, neither Arantxa nor the decedent's son, Victor Garcia, Jr., had heard from their mother and her Camry was not parked at home. According to Arantxa, Sunday was a day to spend with family and it was unusual for her mother and Appellant not to be home. Victor, Jr. went to work and Arantxa left to spend time with friends.

Later that evening, when calls and texts to her mother were still unanswered, Arantxa became worried and called 911 to report her missing. Some of her cousins came to the house to wait for police with her. Before police arrived, the cousins looked in the decedent's bedroom to see if she had packed any clothes or anything was out of place. The bathroom door was locked which was unusual, but one of Arantxa's cousins picked the lock. He walked into the bathroom and discovered the decedent's body in the bathtub in a pool of blood. The police were called again to report discovery of the body.

The family members were interviewed by police and eventually allowed to return home. While looking through the house, a family member discovered a knife in the garage that police had not found during the investigation. A detective was called to retrieve the knife as evidence. A DNA expert testified the knife was believed to be the murder weapon. According to the expert, the DNA profile obtained from the handle of the knife was interpreted as a mixture of two individuals with at least one male contributor with the likelihood of obtaining that profile being "approximately 39.2 quadrillion times more likely if the DNA originated from [Appellant]."

On Monday, August 5, Appellant went to a friend's house and told him he and the decedent had been arguing. The friend invited Appellant to spend the night. The next morning, Appellant was warned that authorities had located him and he asked his friend to help him evade the police. According to the friend, Appellant was going to Mexico but he instead turned himself in on August 8 and was indicted for murder.

Issue One-Denial of Motion for Continuance

Appellant argues the trial court abused its discretion in denying his motion for a continuance after the State failed to disclose Brady v. Maryland^[4] material until two days before trial thereby depriving him of a meaningful opportunity to investigate an alternative perpetrator theory. We disagree.

Appellant contends the State was aware almost three weeks prior to commencement of trial that Victor, Jr. was an alternative perpetrator but did not disclose the exculpatory evidence until two days before trial. The information was disclosed in an email on the Saturday before trial. Prosecutors had interviewed Arantxa who disclosed that when she informed the decedent's ex-husband, Victor Garcia, Sr., of the death he wondered if Victor, Jr. was somehow involved. Appellant posits a continuance was necessary to investigate whether Victor, Jr. had a role in the murder.

Prior to voir dire, defense counsel presented a written motion for continuance alleging a violation of article 39.14 of the Texas Code of Criminal Procedure.^[5] One of the prosecutors conceded she made a mistake and forgot to disclose evidence to defense counsel until shortly before trial. Despite expressing concern the State did not immediately reveal potential Brady material, the trial court ruled the delay by the State was an "oversight" and denied the motion for continuance. The trial court added that defense counsel was provided with Victor, Sr.'s contact information and could have communicated with him directly and would have the opportunity to cross-examine him during trial.

To establish reversible error in the denial of a motion for continuance, a defendant must show the trial court abused its discretion in denying the motion as well as prejudice in the lack of a continuance. Gonzales v. State, 304 S.W.3d 838, 842-43 (Tex Crim App 2010) Brady requires the State to disclose material information that is exculpatory Brady, 373 U.S. at 87 Evidence is "material" when there is a possibility the result of the proceeding would have been different had the evidence been disclosed Ex parte Carty, 543 S.W.3d 149, 180 (Tex Crim App 2018) (Walker, J, concurring). The mere possibility that exculpatory evidence may have helped the defense or might have affected the outcome of the trial does not establish materiality in the constitutional sense. Webb v. State, 232 S.W.3d 109, 115 (Tex. Crim. App. 2007). The burden under Brady is not met when, despite late disclosure of exculpatory evidence, it is disclosed in time to use it effectively at trial. Robles v. State, No. 03-09-00209-CR, 2010 Tex.App. LEXIS 4412, at *6 (Tex. App.-Austin June 11, 2010, pet. ref'd) (mem. op., not designated for publication). To prevail on a Brady violation, a person must show the following: (1) the evidence is favorable to the accused because it is exculpatory or impeaching; (2) the evidence was suppressed by the State either inadvertently or willfully; and (3) the suppression of the evidence resulted in prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Appellant argues the denial of the opportunity to present evidence of Victor, Jr. as an alternative perpetrator caused him to suffer harm of a constitutional magnitude because he was not allowed to present a complete defense. The record, however shows the defense's investigator, who had been appointed almost three years earlier, had reviewed a...