

Opinion issued March 29, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00361-CR
———————————
Selestino Gutierrez Torres, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 174th District Court
Harris County, Texas

Trial Court Case No. 1223088
 

 
O P I N I O N
Appellant, Selestino
Gutierrez Torres, was charged by indictment with murder.  Appellant pleaded guilty to the charge, but
elected to have his punishment determined by a jury.  The jury assessed punishment at life
imprisonment.  In two issues, appellant
argues (1) the trial court erred by denying his request for an instruction on
spoliation of evidence and (2) the trial court erred by denying his motion for
new trial based on jury misconduct.
We affirm.
                                                                                                       
Background
Appellant had dated Michelle Lira, complainant, off and on
for a period of approximately eight years. 
In June 2009, appellant and Lira broke off their relationship for the
last time.  Appellant began dating
another woman and moved in with her. 
Appellant and Lira continued to call, text, and email each other during
this time.
Around July 2, 2009, in the evening, Donna Bell, a
resident of the neighborhood Lira lived in was walking her dog with her
son.  They passed by Lira’s
residence.  As they passed by, Bell saw
appellant rise up from some bushes beside Lira’s home, looking in the window of
the home.  Appellant and Bell made eye
contact, and Bell said “hello.” 
Appellant did not respond.
On July 6, 2009, Lira and her mother were leaving their
home to go to work.  It was around 7:00
in the morning.  Lira’s mother was driving
the car.  Both front side windows were
partially open.  As they were backing up
out of the garage, appellant rushed up to the driver’s side window with a
crazed look on his face.  Appellant began
insisting that he talk to Lira.  Lira’s
mother backed out of the garage. 
Appellant approached Lira on the front passenger side of the car. 
Appellant began insisting that Lira get out of the
car.  Lira’s mother urged her to stay in
the car.  Lira refused to get out.  Lira’s mother told him they were leaving and
that the two of them could talk when they got back that evening.  Appellant then asked for a ride to his car,
indicating it was “back there somewhere.”  Finally, appellant asked Lira, “Do you want
to talk to me?” Lira refused.
Appellant then reached into the front of his pants, pulled
out a gun, put it through the window opening, and began to repeatedly shoot
Lira.  Lira’s mother cursed him, and
appellant began shooting her as well. 
Lira’s mother attempted to back the car out of the driveway.  Appellant continued firing.  Once the car was in the street, Lira’s mother
attempted to put the car in drive to hit appellant, but she began to pass out
and missed him.  
Appellant continued to shoot until he ran out of
bullets.  Then he walked away, the gun
still in his hands.
Before the police located appellant, they found his
truck.  Investigators with the Harris
County Sheriff’s Office obtained a warrant to search appellant’s truck.  The truck was taken to a Harris County
Sheriff’s Office facility.  There were
numerous documents and a scrap book in the truck.  Investigators searched through the contents
of the truck for “items concerning firearms or a shooting offense.”  Investigators collected some items.  Whatever they did not collect was left in the
truck.  Appellant alleges that the
documents that would have been useful to him during the trial on punishment
were in the truck.
After the search of the truck was concluded, it was turned
over to a wrecker company that had a contract with Harris County to handle vehicles
that have been examined.  The truck was
cleared to be released to the owner.  The
evidence at trial shows that the wrecker company made an effort to contact the
owner of the vehicle, which was appellant.
                                                                                        
Spoliation Instruction
In his first issue, appellant argues the trial court erred
by denying his request for an instruction on spoliation of evidence.
A.            
Standard of Review
Charge error is reviewed under
the standard set forth in Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985). 
Under Almanza, we must first determine
whether error exists in the jury charge. 
See id. at 171.  If so, we then determine whether the harm was
sufficient to require reversal.  Id.  If the error is properly preserved by an
objection to the charge, then a showing of only some harm is sufficient to
require reversal; if, however, the error is not properly preserved, then a
showing of egregious harm is required for reversal.  Id.  
B.            
Analysis
Assuming without deciding that a jury instruction is a
proper remedy when spoliation of evidence exists,[1]
we hold there is no evidence of spoliation.
Spoliation of evidence concerns the loss or destruction of
evidence.  See White v. State, 125 S.W.3d 41, 43–44 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d).  When the spoliation concerns potentially
useful evidence, the defendant bears the burden of establishing the State lost
or destroyed the evidence in bad faith.  Ex parte Napper,
322 S.W.3d 202, 229 (Tex. Crim. App. 2010).
While appellant alleged that the State lost or destroyed
evidence, there was no evidence presented to establish this claim.  After the crime occurred, investigators with
the Harris County Sheriff’s Office obtained a warrant to search appellant’s
truck.  The truck was taken to a Harris
County Sheriff’s Office facility.  There
were numerous documents and a scrap book in the truck.  Investigators searched through the contents
of the truck for “items concerning firearms or a shooting offense.”  Investigators collected some items.  Whatever they did not collect was left in the
truck.  Appellant alleges that certain
documents that would have been useful to him during the trial on punishment
were in the truck.  These documents
included his insurance policy, some photographs of him with his son, and a
scrapbook.
After the search of the truck was concluded, it was turned
over to a wrecker company that had a contract with Harris County to handle
vehicles that have been examined.  The
truck was cleared to be released to the owner. 
The evidence shows that the wrecker company made an effort to contact
the owner of the vehicle, which was appellant.
There is no evidence of what happened to the vehicle or
its contents following this.  The record
is silent as to whether the truck was returned to appellant or someone on his
behalf, is still at the wrecker’s lot, or had been otherwise disposed of.  In other words, there is no evidence that the
documents appellant claims were relevant were lost or destroyed much less lost
or destroyed by the State in bad faith.  
Moreover, there is no proof that the items that appellant
complains were disposed of were ever in the car.  For the insurance policy, appellant’s only
statement was that he did not know where it was and “assume[d] it was in the
briefcase,” which was in his truck. 
Appellant did not testify about the location of the photographs or the
scrapbook.  Instead, on appeal, appellant
cites to the portions of the record where his trial attorney asserts the items
were in the truck while cross-examining different witnesses for the State.   None of the witnesses, however, testified
that those items were in fact in the car. 
“Questions or statements of counsel not under oath do not constitute
evidence.”  Delgado v. State, 544 S.W.2d 929, 931 (Tex. Crim. App. 1977).
Without any showing that the relevant items were actually
in the truck and without any showing that the truck was lost, destroyed, or
otherwise unavailable, there is no proof of spoliation.  See Ex
parte Napper, 322 S.W.3d at 229 (holding
defendant must show evidence was lost or
destroyed by State in bad faith).
We overrule appellant’s first issue.
                                                                                                
Jury Misconduct
In his second issue, appellant argues the trial court
erred by denying his motion for new trial based on jury misconduct.  We hold that appellant has failed to present
a sufficient record to establish any error.
Appellant asserts that, while it was deliberating, the
jury sent the trial court a note asking how much time appellant would serve
before being eligible for parole if appellant were given a life sentence.  Appellant moved for a new trial, asserting,
in part, that the jury was considering matters outside the record in
determining punishment.  Appellant
acknowledged in his motion for new trial and on appeal, however, that there is
no evidence in the record of the note or any response from the trial
court.  
It is the appellant’s burden “to bring forward a record on
appeal sufficient to show that the trial court erred.”  Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007).  “A motion for new trial is a prerequisite to
presenting a point of error on appeal only when necessary to adduce facts in
the record.”  Tex. R. App. P. 21.2. 
At a hearing on a motion for new trial, the trial court “may receive
evidence by affidavit or otherwise.”[2]  Tex.
R. App. P. 21.7.  
Appellant never presented any evidence to establish that
the alleged misconduct occurred. 
Instead, appellant requested in his motion that the trial court take
judicial notice of the note “[i]f or when the note is
located.”  Because there is no evidence
in the record that the alleged jury misconduct actually occurred or any action
taken by the trial court in response to the alleged misconduct, there is
nothing presented for our review.
We overrule appellant’s second issue.


 
                                                                                                          
Conclusion
We affirm the judgment of the trial court.
 
 
                                                                      Laura
Carter Higley
                                                                      Justice

 
Panel
consists of Chief Justice Radack and Justices Higley and Brown.
Publish.   Tex. R. App. P. 47.2(b).




[1]         See
Pena v. State, 226 S.W.3d 634, 655 (Tex. App.—Waco 2007), rev’d on other grounds, 285 S.W.3d 459 (Tex.
Crim. App. 2009) (holding jury instruction is one of three possible remedies
for spoliation); White v. State, 125
S.W.3d 41, 43 (Tex. App.—Houston. [14th Dist.] 2003,
pet. ref’d) (holding no spoliation in context of jury
instruction request without reaching whether instruction is appropriate
remedy); see also Sereal
v. State, No. 01-09-00192-CR, 2011 WL 1234739, at *4 (Tex. App.—Houston
[1st Dist.] Mar. 31, 2011, pet. ref’d) (mem. op., not
designated for publication) (citing White).


[2]         There is no evidence in the record that
a hearing was held on the motion for new trial. 
Appellant’s complaint on appeal, however, does not concern whether the
trial court erred by failing to hold a hearing on the motion for new
trial.  Instead, his complaint concerns
whether the trial court erred in denying his motion for new trial.


