                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00306-CR

ADAM GUTIERREZ,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-2412-C2


                                    OPINION


      Adam Gutierrez was charged with and convicted of robbing Juan and Jose

DelaRosa and using a deadly weapon to commit that offense. See TEX. PENAL CODE

ANN. § 29.03(a)(2) (West 2011). He was sentenced to life in prison for each count.

Because the trial court did not abuse its discretion in granting the State’s motion for

continuance and did not err in including each conduct element in the definitions of the
required mental states, the trial court’s judgments are affirmed.1

CONTINUANCE

        In his first issue, Gutierrez contends the trial court abused its discretion in

granting the State’s motion for continuance.

        At a pretrial hearing on January 11, 2013, the State presented its written and

sworn motion for continuance. In the motion, the State presented three reasons for the

need for the continuance: 1) a DNA comparison between Gutierrez, the victims, and

the known sample taken from a t-shirt believed to be worn by Gutierrez needed to be

done which may result in exculpatory evidence; 2) a cell phone dropped at the scene

where the suspect in the robberies, Gutierrez, was hiding needed to be analyzed; and 3)

one of the victims received correspondence from someone at the jail which was being

investigated as a threat by Gutierrez which might result in more charges being brought

against Gutierrez. As to the first reason, the State further explained that the t-shirt was

swabbed for DNA by “crime scene techs;” that the DNA was submitted by Detective

Manuel Chavez to the DPS lab on June 5, 2012; that a DNA report was generated by

DPS on December 12, 2012 and sent to Det. Chavez; and that the DNA report was

received by email by the District Attorney’s Office on January 2, 2013. Because the

DNA profile was consistent with at least three individuals, the State explained, a

comparison would need to be done of Gutierrez’s DNA, the two victims’ DNA, and the



1Because the sufficiency of the evidence is not an issue for review, we will only discuss the facts of the
case as necessary to the issues. This was your basic robbery-at-gunpoint by Gutierrez of two victims
without a physical injury to either.
Gutierrez v. State                                                                                 Page 2
known profile.         The State acknowledged that the comparison evidence may be

exculpatory because it may exclude Gutierrez as someone who had contact with the t-

shirt and may implicate someone else.

          At the hearing, the State explained that if it could obtain a buccal swab that day

from Gutierrez, the lab would complete the analysis within 60 to 90 days. 2 When asked

by the trial court why the State was just now getting a sample of Gutierrez’s DNA, the

State did not have a definite answer. The prosecutor noted that sometimes “they don’t

submit the buccal…with the initial evidence that’s been swabbed and wait to do that

after actually some DNA is located. That seems to have happened in this matter.”

After noting that Gutierrez had been in the county jail for 427 days already and would

be in for close to 500 days when the results of the comparison were obtained, the trial

court requested testimony on the subject.

          Detective Chavez testified that the offense occurred on October 7, 2011, that

Gutierrez was arrested on October 27, 2011, and that Gutierrez had been in jail ever

since then. Chavez explained that Gutierrez already had a DNA specimen on file. But,

when the report on the DNA recovered from the t-shirt showed that that specimen was

not eligible for “CODIS,” Chavez needed a new DNA sample from Gutierrez. No one

explained the meaning of “CODIS.”3

          After Chavez’s testimony, counsel for Gutierrez informed the court that should it


2 Regardless of what the public sees on CSI, it takes more than an hour to perform a DNA test and
comparison.

3   CODIS is the Combined DNA Index System which is managed by the Federal Bureau of Investigation.
Gutierrez v. State                                                                             Page 3
grant the continuance, Gutierrez would consent to the buccal swab being taken.

Counsel then argued that the State had had the evidence since the day of Gutierrez’s

arrest, that the court had been told several times that the parties were waiting on the

DNA results, and that the State had “passed before.” He also argued that Gutierrez

wanted a trial date and wanted “this thing to be fast-tracked so we can get this matter

tried.”

          The trial court expressed its exasperation with the situation:

          Well, it’s really very – you know, it’s really untimely to ask for these
          swabs after people have been in jail a year plus two to three months when
          they’ve been available the entire time. This case has been reset 11 times. I
          think the only one on my list that’s been reset more than that is one that’s
          been reset 15 times. We’ve got a county jail that’s busting at the seams
          and this is part of the problem.

          But because the evidence could be exculpatory, I’m going to grant the
          continuance and allow time for the testing of the – of the Defendant’s DNA.

(Emphasis added).

          A criminal action may be continued on the written motion of the State or of the

defendant, upon sufficient cause shown. TEX. CODE CRIM. PROC. ANN. art. 29.03 (West

2011). The granting or denial of a motion for continuance is within the sound discretion

of the trial court. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Thus,

reversal of a judgment is justified only when it is shown the trial court has abused its

discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982).

          Gutierrez appears to argue that the State was required to show due diligence

when requesting a continuance and because it did not, the trial court abused its


Gutierrez v. State                                                                       Page 4
discretion in granting the motion. However, the cases Gutierrez relies upon require a

showing of due diligence when a party is complaining about the trial court’s denial of a

motion for continuance, not when a party is complaining about the trial court granting a

motion for continuance. See Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010);

Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000). He has not cited this Court to a

Texas case supporting his argument, and we decline to extend the holdings in Gonzales

and Wright to the facts of this case.

        The trial court mentioned 11 continuances in the underlying proceeding. The

record, however, only informs us of what happened with two of them, and both were

joint motions for continuance. Specifically, the record indicates that Gutierrez’s case

was set for arraignment on December 9, 2011. In February of 2012, a joint motion for

continuance was submitted which requested a reset of the case until March 2, 2012. On

March 2, 2012, the parties again executed a joint motion for continuance requesting the

case be reset until May 14, 2012. There is nothing else in the record showing any more

continuances or any other passes in the case prior to the State’s motion for continuance.

The appellate record indicates that the DPS lab report containing the buccal swab taken

from Gutierrez in January of 2013 was prepared on March 19, 2013. Then on April 29,

2013, Gutierrez and the State jointly submitted a request for a priority setting for trial.

A priority setting was granted, and trial was set for, and occurred on, August 26, 2013.

        Although the trial court was understandably exasperated with the slow progress

of the case, it appears from the record that the State was not the sole cause of the slow


Gutierrez v. State                                                                   Page 5
progression. Further, the trial court did not grant the State’s motion because it needed

more time; the motion was granted because of the possibility that the tests would reveal

material exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S.

Ct. 1194 (1963) (a due process violation occurs whenever material exculpatory evidence

is withheld). Accordingly, the court did not abuse its discretion in granting the State’s

motion for continuance.4 Gutierrez’ first issue is overruled.

CONDUCT ELEMENTS

        In his second issue, Gutierrez argues that the trial court erred in overruling

Gutierrez’s challenge to the jury charge, specifically that the charge unnecessarily

included result of conduct language in the definitions of the culpable mental states,

resulting in “some harm.”

Arguments Made

        Over Gutierrez’s objection, the court’s charge defined "intentionally" and

"knowingly" according to Texas Penal Code Section 6.03. TEX. PENAL CODE ANN. §

6.03(a) and (b) (West 2011). Those definitions are as follows:

               (a) A person acts intentionally, or with intent, with respect to the
        nature of his conduct or to a result of his conduct when it is his conscious
        objective or desire to engage in the conduct or cause the result.

               (b) A person acts knowingly, or with knowledge, with respect to
        the nature of his conduct or to circumstances surrounding his conduct
        when he is aware of the nature of his conduct or that the circumstances
        exist. A person acts knowingly, or with knowledge, with respect to a
        result of his conduct when he is aware that his conduct is reasonably


4 Because we have not found an abuse of discretion, we decline to discuss Gutierrez’s speedy trial
argument as evidence of harm.
Gutierrez v. State                                                                         Page 6
        certain to cause the result.

Id. Gutierrez argued to the trial court that the offense for which he was being tried was

a “nature of conduct” offense; and thus, the references to “result of conduct” should be

removed from the definitions. Gutierrez’s objection was overruled.

        On appeal, Gutierrez generally argues that we are not required to “parse” the

individual conduct elements for the culpable mental state “because the act of

aggravated robbery is criminalized because of [its] very nature.” Appellant’s brief, pg.

21 (citing Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (en banc)). We

respectfully disagree. The Court of Criminal Appeals has made it clear that if the

offense as charged involves multiple types of conduct elements, then the charge should

define each relevant conduct element in the culpable mental states. Hughes v. State, 897

S.W.2d 285, 295-296 (Tex. Crim. App. 1994).

Law

        There are three "conduct elements" which may be involved in an offense: (1) the

nature of the conduct; (2) the result of the conduct; and, (3) the circumstances

surrounding the conduct. Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). An

offense may contain any one or more of these "conduct elements" which alone or in

combination form the overall behavior which the Legislature has intended to

criminalize, and it is these essential "conduct elements" to which a culpable mental state

must apply. Id. Thus, the culpable mental state definitions in the charge must be

tailored to the conduct elements of the offense. Id.; Patrick v. State, 906 S.W.2d 481, 492


Gutierrez v. State                                                                   Page 7
(Tex. Crim. App. 1995).     Where the charged offense does not include a particular

conduct element, it is error for the court's charge to contain a definition of the culpable

mental state for that conduct element in the abstract portion of the charge. See Hughes v.

State, 897 S.W.2d 285, 295-296 (Tex. Crim. App. 1994). A trial court does not err,

however, in defining the culpable mental states to nature, result, and circumstances

surrounding conduct when all three of the conduct elements are contained within the

offense. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995).

Application

        Aggravated robbery, as charged in this case, is committed when, in the course of

committing theft, a person threatens or places another in fear of bodily injury or death

and the person uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.02(a)(2),

29.03(a)(2) (West 2011). The element "in the course of committing theft" refers to the

circumstances surrounding the conduct, rather than the result. See Barnes v. State, 56

S.W.3d 221, 234 (Tex. App.—Fort Worth 2001, pet. ref'd); Bosier v. State, 771 S.W.2d 221,

225 (Tex. App.—Houston [1st Dist.] 1989, pet. ref'd). Because the form of robbery

alleged is "aggravated" by the use of a deadly weapon, that element refers to the nature

of conduct rather than the result of conduct because a weapon is "deadly" if it is

"capable" of causing serious bodily injury in the manner of its use, without regard to

whether the actual result is the infliction of serious bodily injury. Bosier, 771 S.W.3d at

225.

        But the most crucial question in our analysis of this issue is whether the element


Gutierrez v. State                                                                   Page 8
that requires the victim to be threatened or placed in fear of imminent bodily injury or

death is a nature of conduct element or a result of conduct element. There are two parts

to, or clauses that form, this element: that the offender either (1) threatens another with

imminent bodily injury or death, or (2) places another in fear of imminent bodily injury

or death. See TEX. PENAL CODE ANN. § 29.03(a)(3) (West 2011). At least one court of

appeals has held that this element, in its entirety, refers to a result of the defendant’s

conduct. See Garza v. State, 794 S.W.2d 497, 501 (Tex. App.—Corpus Christi 1990, pet.

ref’d). Although the Garza court relied on an opinion in which the charged offense was

aggravated robbery with bodily injury, see Bosier v. State, 771 S.W.2d 221 (Tex. App.—

Houston [1st Dist.] 1989, pet. ref’d), we agree that the clause, “places in fear,” refers to

the result of an offender’s conduct.5             Being placed in fear is from the victim’s

perspective, not the offender’s. It is the result of the conduct, being placed in fear,

which is the focus of this type of robbery regardless of the offender’s actions. And, in

this case, both victims testified that they were placed in fear of bodily injury or death.

Summary

        Based on the evidence and charge as submitted, there is the potential the jury

could base its verdict on a determination that the victim was placed in fear of bodily

injury or death as a result of the actions of Gutierrez during the course of committing

theft. We hold that the “places in fear of bodily injury or death” portion of the element



5 To the extent the Garza opinion holds that the “threatens” clause of the element refers to result of
conduct, we disagree. See Garfias, 424 S.W.3d at 60; McCarty v. State, No. 10-13-00066-CR, 2013 Tex. App.
LEXIS 12407, *7 (Tex. App.—Waco Oct. 3, 2013, pet. ref’d) (not designated for publication).
Gutierrez v. State                                                                                Page 9
of robbery is a result of conduct element.        Accordingly, because the charge used

language of all three conduct elements in its definitions of the culpable mental states

and all three conduct elements are present in this case, the trial court did not err in

overruling Gutierrez’s objection.

         Gutierrez’s second issue is overruled.

CONCLUSION

         Having overruled each issue on appeal, we affirm the judgments of the trial

court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 19, 2014
Publish
[CRPM]




Gutierrez v. State                                                              Page 10
