      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00054-CR
                                      NO. 03-18-00055-CR
                                      NO. 03-18-00056-CR



                                 Tyquan Guzman, Appellant

                                                v.

                                 The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
           NOS. D-1-DC-17-300531, D-1-DC-17-300634 & D-1-DC-17-300635
               HONORABLE BRAD URRUTIA, JUDGE PRESIDING



                           MEMORANDUM OPINION


               A jury convicted Tyquan Guzman of two counts of aggravated robbery and one count

of aggravated kidnapping arising from incidents spanning a two-day crime spree. The jury assessed

sentences of 5 years’ imprisonment for each of the aggravated robbery offenses and 18½ years’

imprisonment for the aggravated kidnapping offense. See Tex. Penal Code §§ 20.04, 29.03. The

district court rendered judgments of conviction consistent with the jury’s verdicts. On appeal,

Guzman contends that the court erred by admitting evidence of extraneous conduct over his Rule 403

objection that the evidence was more prejudicial than probative. See Tex. R. Evid. 403. We will

affirm the judgments of conviction.
                                            BACKGROUND

               Tyquan Hassan Guzman was indicted for three offenses arising from two events: an

aggravated robbery against Robert Gilardi and an aggravated kidnapping and aggravated robbery of

Wendy Gueorguiev committed two days after the robbery against Gilardi. All three indictments were

consolidated for trial without objection.

               Among the witnesses at trial were Guzman’s victims, Gilardi and Gueorguiev, and

the law enforcement officers who investigated the offenses. Gilardi testified that he wanted to buy

a cell phone for his daughter and that he answered an online posting on a trading platform called

OfferUp, where an individual later identified as Guzman had listed a cell phone for sale. Gilardi

contacted Guzman and arranged to meet at a park on South First near Oltorf in Austin. When

Gilardi arrived, Guzman was not there. Gilardi sent a message to Guzman, who changed the meeting

location to a spot at the end of Durwood Street. After Gilardi drove there, Guzman stated that he

wanted to show the phone to Gilardi inside the car. Although Gilardi preferred to exchange the

phone in the open, he agreed. Then Guzman and another man got into Gilardi’s car. Guzman

pointed a gun at Gilardi and demanded all of Gilardi’s money and his personal cell phone. Gilardi

handed his cell phone and $250 to Guzman, who fled on foot. Gilardi returned to the park and

borrowed someone’s phone to call 911. A recording of that call was admitted into evidence, and

Gilardi identified Guzman in court as the person who took his money and phone at gunpoint.

               Regarding the second event, Gueorguiev testified that she pulled over to take a nap

in her car near Riverside Drive after she became tired following a night out with friends. Gueorguiev

woke around 3:00 a.m. or 4:00 a.m. to see a young man, whom she later identified in court as



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Guzman, staring at her. He told her to get into the passenger seat and told her that he had a gun,

which she saw in his hand. Guzman proceeded to drive the car north on IH-35. During the drive,

Guzman told Gueorguiev that he should make her “suck his dick.” To escape, Gueorguiev jumped

out of the moving car and slid onto the pavement of IH-35 near Airport Drive, sustaining a broken

elbow and numerous other injuries.1 After unsuccessfully trying to flag down passing motorists,

Gueorguiev sought help by knocking at the doors of some houses near the highway. Residents called

911. One resident requested EMS for Gueorguiev and reported to police the information that

Gueorguiev provided about the facts of the offense and the year, make, and model of her stolen car.

                In addition to Gilardi’s and Gueorguiev’s testimony, the jury also heard about an

incident of extraneous conduct for which Guzman had not been charged in which he approached a

woman, Krystal Reeve, while she was in her car. This incident occurred a few hours after Guzman

had awakened Gueorguiev in her car.2 Reeve testified that after completing her night shift at work,



       1
           Color photographs of Gueorguiev’s injuries were admitted into evidence.
       2
           The record of the trial contains a reference by the prosecutor directing Reeve’s attention
to “March 3rd”—not March 8th—as the date that Guzman approached Reeve near her apartment on
Manchaca Road, across from an ACC parking garage. Guzman contends that this reference to March
3rd means that the incident involving Reeve occurred “some days before either of the charged
offenses” and that “no connection was shown to the other two complainants.” But the jury could
have concluded that the March 3rd reference was a misstatement. It is inconsistent with the
prosecutor’s opening statement and closing argument, which noted that Reeve was approached
within hours of the incident involving Gueorguiev. The March 3rd date is also inconsistent with
Officer Donnie Manor’s testimony that he encountered Guzman on March 8, 2017, detained him,
and moved him to a second location where Reeve made a “field identification” of him before he
went to jail. Further, the single-day chronology of events involving Gueorguiev and Reeve is
supported by one of Guzman’s recorded telephone calls from jail. In that recording, Guzman states
that after Gueorguiev jumped out of the car, he parked the car by his mom’s house, began walking,
asked for a cigarette from a “bitch” that he saw smoking a cigarette, and after she refused, he walked
to his “homeboy’s house that’s right around the corner from Crockett.”

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she parked her car at a car wash near her apartment and was smoking a cigarette when she was

approached by a young man, whom she later identified as Guzman. He walked to her car and told

her, “Let’s fuck.” Reeve rolled up her car window and drove to her apartment complex next door.

Reeve testified that she was shaking as she parked her car and sat there while she continued smoking.

In the apartment parking lot, Reeve saw Guzman walking behind her car, and he approached her

again. This time, he banged on the car door, asking for a cigarette. Reeve stated that Guzman

opened her car door while she tried to pull it closed and that she noticed him reaching for something

black in his pocket. Reeve entered 911 on her cell phone and screamed at Guzman while honking

her car’s horn. Guzman fled. Reeve testified that police arrived within ten minutes. They

apprehended Guzman, and Reeve testified that she identified him to police as the person who had

been at her car.

               Austin Police Department Officer Donnie Manor testified about his interaction with

Reeve. He stated that on March 8, 2017, he arrested Guzman based on a female victim’s description

of a suspect in a possible robbery and sexual assault. Manor testified that he was checking the area

for a person fitting the description provided when he saw Guzman walking in the middle of the

roadway. Officer Manor detained him and then moved him to a second location where the victim,

Reeve, made a “field identification” of him before he went to jail. Guzman had two knives in his

pockets and a gun in his waistband when he was arrested. The gun was identified as a Taurus .25

caliber semiautomatic pistol that had its serial number removed and was unloaded when inventoried.

               Austin Police Department Detective Thomas Howard testified about his investigation

of Guzman. He stated that he obtained a search warrant for historical information from the OfferUp



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app and linked Guzman’s use of OfferUp to a modem at his mother’s house. Detective Thomas

interviewed Guzman, who stated that neither he nor his mother had a car, that he rode a bus to and

from a friend’s house near the location of the robbery, and that he was selling a cell phone on

OfferUp. Guzman denied involvement in a robbery. However, without Detective Howard disclosing

any details about the money stolen from Gilardi, Guzman asked why he would commit a robbery

over $200. Detective Howard testified that Guzman repeated the question a couple of times before

catching himself and stating something to the effect of “that was just an example.”

               After his interview with Guzman, Detective Howard considered searching for video

footage from cameras at the bus station. But Detective Howard noticed that Guzman’s property

included a car key with a microchip that was found on him. Detective Howard testified that people

who do not have cars typically do not have car keys. The car key reminded him “of a case we had

from the same night where a person was carjacked and from that same kind of car.”

               Detective Howard testified that he listened to recorded telephone calls that Guzman

made from jail to a girlfriend. Recordings of Guzman’s calls from jail were admitted into evidence

without objection. Detective Howard stated that in one of the calls, Guzman said that he got a new

car and that he was driving with a female in the passenger side of the car when “the bitch jumped

out” while they were “going a hundred on the highway.” According to Detective Howard, Guzman

also told his girlfriend where he parked the car, which was near where his mother lived, and told her

to have a friend “move it before the cops find it.” Detective Howard testified that he took the car

key found on Guzman to a car that police found. Using that key, Detective Howard was able to

unlock the car and start the ignition.



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               Detective Howard further testified without objection about another of Guzman’s calls

from jail referring to him asking for a cigarette. Detective Howard stated that from what he

remembered, the incident involved Guzman walking up to somebody near a car wash. The person

saw a gun, got scared, and called 911.

               At the conclusion of the trial, the jury convicted Guzman on both counts of

aggravated robbery against Gilardi and Gueorguiev and the count of aggravated kidnapping against

Gueorguiev and assessed his sentences, and the district court rendered judgment on the jury’s

verdicts. This appeal followed.


                                          DISCUSSION

No harmful error in admission of extraneous-conduct evidence

               On appeal, Guzman contends that the district court erred by admitting Reeve’s

testimony about his extraneous conduct over his Rule 403 objection. Texas Rule of Evidence 403

provides that even relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; by

considerations of undue delay; or by needless presentation of cumulative evidence. Tex. R. Evid.

403. When conducting a Rule 403 analysis, the trial court must balance: (1) the inherent probative

force of the proffered item of evidence along with (2) the proponent’s need for that evidence against

(3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the

evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount

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of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006). We review a trial court’s decision to admit or exclude evidence, as well

as its decision as to whether the probative value of evidence was substantially outweighed by the

danger of unfair prejudice, under an abuse-of-discretion standard. Martinez v. State, 327 S.W.3d

727, 736 (Tex. Crim. App. 2010). The trial court does not abuse its discretion unless its

determination lies outside the zone of reasonable disagreement. Id.

                Here, even assuming without deciding that there were an abuse of discretion, we are

satisfied that the admission of this extraneous evidence did not affect Guzman’s substantial rights.

See Tex. R. App. P. 44.2(b) (providing that any error that does not affect substantial rights must be

disregarded). “A substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim.

App. 2014). A defendant’s substantial rights are not affected by the erroneous admission of evidence

if the appellate court, after considering the record as a whole, has fair assurance that the error did not

influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002). In light of the overwhelming evidence of Guzman’s guilt, we are satisfied that the admission

of the extraneous conduct evidence did not have a substantial and injurious influence in determining

the jury’s guilty verdict. See Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005);

Motilla, 78 S.W.3d at 358 (concluding that evidence of defendant’s guilt is factor to be considered

in any thorough harm analysis).

                The evidence at trial supporting the jury’s verdict was strong. The jury heard

firsthand accounts from victims Gilardi and Gueorguiev establishing the elements of the offenses



                                                    7
Guzman committed against them. Their accounts were supported by evidence about the investigation

conducted by law enforcement and Guzman’s own words in his calls from jail. Notably, the defense

objected to none of the witnesses’ testimony at trial and acknowledged during closing, “I didn’t have

any questions because I had seen the evidence, and I knew what the testimony would be. And I told

you it was going to be ugly, what you were going to hear was . . . going to . . . trigger in you your

instincts, protection of the public.”

               Further, Reeve’s testimony about the extraneous conduct—which was summarized

by Detective Howard without objection and referenced in Guzman’s recorded calls from jail—had

nothing to do with Guzman’s defense at trial, i.e., that the gun found on him was not a deadly

weapon because it did not have ammunition with it when it was inventoried by police.

               Finally, Guzman’s contention that Reeve’s extraneous-conduct testimony painted him

as a “criminal on a rampage” is not persuasive. Even without Reeve’s testimony, the jury heard the

evidence relating to Guzman’s three charged offenses against two different victims, Gilardi and

Gueorguiev, which were consolidated for trial without objection from the defense. Consolidation

of these offenses, which occurred within two days of each other, could have had essentially the same

effect of which Guzman complains, such that admission of Reeve’s testimony did not influence

the jury, or did so only slightly, in determining Guzman’s guilt. See Motilla, 78 S.W.3d at 355.

Accordingly, we overrule Guzman’s issue complaining about the admission of that extraneous-

conduct evidence.




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                                       CONCLUSION

              We affirm the district court’s judgments of conviction.




                                            Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: August 3, 2018

Do Not Publish




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