Affirmed and Opinion filed July 20, 2017.




                                     In the

                     Fourteenth Court of Appeals

                              NO. 14-16-00353-CR

                JOSE GUADELUPE GUERRERO, Appellant
                                       V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 209th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1292569

                                  OPINION


      Appellant Jose Guadelupe Guerrero appeals his murder conviction in two
issues. We affirm.

                             I.     BACKGROUND

      On the evening of January 8, 2010, Officer R. Cantu responded to a shooting-
in-progress call at appellant’s home. When Cantu arrived at the scene, Officer M.
Peters and paramedics were already there. The bedroom was in disarray, and it
looked as if there had been a struggle. Appellant was pacing around with blood on
his hands. Martha Escamilla, appellant’s girlfriend, was lying on the floor on her
back in a pool of blood close to the bed. Escamilla had been shot in the head.
According to Cantu and one of the paramedics, the gun (a semiautomatic 9-
millimeter handgun) was laying near the foot of the bed. Peters recovered the gun
from the bed and secured it in a container within the trunk of his patrol car for
“safekeeping” and “officer safety.” Cantu took appellant outside to preserve the
scene. Appellant kept saying to Cantu and Peters that Escamilla “shot herself,” but
one time appellant told them that he “shot her.”

       Sergeant R. Nunez and Officer C. Duncan with the Crime Scene Unit
documented and collected evidence at the scene. Nunez photographed and collected
the gun from the trunk. Nunez and Duncan performed forensic analysis involving
the gun. Officer E. Castaneda with the homicide division obtained appellant’s
videotaped statement. According to appellant, immediately after shooting herself,
Escamilla threw the gun onto the bed before she collapsed.

       Appellant was indicted for felony murder and proceeded to trial in April 2016.
On the fourth day of testimony, the State presented the trial court with police
disciplinary records involving 21 employee complaints against Peters dating from
April 2010 to June 2015 that had been sustained.1 Because the records were material
for purposes of Brady v. Maryland, 373 U.S. 83 (1963), the trial court provided them
to appellant to prepare for cross-examination of Peters.2 The next day, appellant
filed a motion for continuance, arguing that appellant needed additional time to

       1
          The appellate record contains the file regarding Peters’s complaint history. The sustained
allegations include: not properly documenting sick leave, failing to attend scheduled in-service
training, not timely qualifying an on-duty weapon, not completing reports relating to a crash and
a child custody call, and insubordination.
       2
           The State disclosed Peters as a potential expert witness over two years before trial.

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gather information about the specifics of the disciplinary actions to determine their
relevance and materiality to any alleged statement made by appellant in Peters’s
presence and for potential spoliation claims. The State reported that Peters was not
available to testify due to his mental and physical condition. The trial court heard
and denied appellant’s motion.

       Also during trial, while appellant’s statement was being played to the jury,
two of Escamilla’s adult children were shaking their heads and making facial
expressions of surprise. The trial court determined that no juror was influenced by
the children’s behavior. The trial court instructed the jurors not to consider such
behavior during their deliberations. Appellant moved for a mistrial, and the trial
court denied the motion.

       The jury returned a verdict of “guilty” and assessed appellant’s punishment at
confinement for 99 years in the Institutional Division of the Texas Department of
Criminal Justice. Appellant timely appealed.

                                  II.       ANALYSIS

A. Motion for continuance

       In his first issue, appellant contends that the trial court erred in denying his
motion for continuance.3 Appellant argues that because Peters retrieved the gun
from the scene and placed it in the trunk of his police car, and because Peters has a
history of police misconduct, the trial court should have given appellant time to
gather additional information about such misconduct and its relevance and
materiality to any statements appellant made in Peters’s presence and for potential


       3
          During the hearing on his motion for continuance, appellant raised a due-process
challenge under the Fourteenth Amendment of the U.S. Constitution and a due-course-of-law
challenge under article I, section 19, of the Texas Constitution. However, appellant raises no
constitutional challenge on appeal.

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spoliation of evidence.

      Article 29.13 of the Texas Code of Criminal Procedure provides that the trial
court may grant a continuance after trial has begun “when it is made to appear to the
satisfaction of the court that by some unexpected occurrence since the trial began,
which no reasonable diligence could have anticipated, the applicant is so taken by
surprise that a fair trial cannot be had.” Tex. Code Crim. Proc. art. 29.13 (West
2015). We review a trial court’s ruling on a motion for continuance during trial for
an abuse of discretion. Barney v. State, 698 S.W.2d 114, 126–27 (Tex. Crim. App.
1985); Bautista v. State, 474 S.W.3d 770, 777 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d). We do not disturb the trial court’s ruling on a continuance absent
an abuse of discretion. Williams v. State, 768 S.W.2d 337, 341 (Tex. App.—
Houston [14th Dist.] 1989, pet. ref’d); Freeman v. State, 736 S.W.2d 154, 157 (Tex.
App.—Houston [14th Dist.] 1987, no pet.).           We examine the circumstances
presented to the trial court to determine whether the trial court abused its discretion.
Bautista, 474 S.W.3d at 778.

      To establish an abuse of discretion, an appellant must show that the trial court
erred in denying the motion for continuance and that the denial actually and
specifically prejudiced appellant’s defense. See Gonzales v. State, 304 S.W.3d 838,
842 (Tex. Crim. App. 2010); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.
App. 1996) (per curiam) (citing Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim.
App. 1995)), cert. denied, 522 U.S. 825 (1997); Lowrey v. State, 469 S.W.3d 318,
327 (Tex. App.—Texarkana 2015, pet. ref’d); Nwosoucha v. State, 325 S.W.3d 816,
825–26 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). That a party “merely
desired more time to prepare does not alone establish an abuse of discretion.”
Janecka, 937 S.W.2d at 468; see Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim.
App. 2007) (bare assertion regarding inadequate time to interview potential State’s

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witness does not alone establish abuse of discretion (citing Heiselbetz, 906 S.W.2d
at 512)), pet. denied, 553 U.S. 1080 (2008).

       Even assuming without deciding that the trial court erred by denying
appellant’s motion for continuance, appellant has not shown he was prejudiced.
Appellant speculates that further review of Peters’s disciplinary history may have
revealed police misconduct which somehow compromised appellant’s statements or
physical evidence (namely, the gun). However, mere speculation about evidence
that a defendant might have developed if the continuance were granted is not
sufficient to demonstrate harm. See Renteria v. State, 206 S.W.3d 689, 702 (Tex.
Crim. App. 2006) (“Case-law requires more than this type of speculation to justify
an appellate reversal of a case for a trial court’s failure to grant a continuance.”);
Nwosoucha, 325 S.W.3d at 825 (“Speculation will not suffice to obtain reversal for
a trial court’s failure to grant a continuance.”).

       Appellant cites Tanguma v. State, 47 S.W.3d 663, 680 (Tex. App.—Corpus
Christi 2001, pet. ref’d), disapproved of on other grounds, Valle v. State, 109 S.W.3d
500, 508–09 (Tex. Crim. App. 2003), and asserts generally that he was unable to
effectively cross-examine witnesses and unable to adduce crucial testimony from a
potential witness.4 Appellant, however, fails to support such assertions with any
specific evidence. See Janecka, 937 S.W.2d at 468; De Vaughn v. State, 239 S.W.3d
351, 355 (Tex. App.—San Antonio 2007, pet. ref’d) (bare assertion that defense was
“diminished” did not establish actual prejudice (citing Heiselbetz, 906 S.W.2d at


       4
          The record reflects that appellant cross-examined the State’s witnesses who testified
about appellant’s statement regarding having shot Escamilla and about the location, removal, and
collection of the gun as evidence. During closing, appellant argued how, despite appellant’s
alleged statement that he shot Escamilla, appellant was not immediately charged and arrested and
instead proceeded to cooperate and provide a videotaped statement. Appellant also highlighted
the fact that, despite being the first officer on the scene who retrieved the gun and put in in his
trunk, Peters did not testify.

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511–12)). Appellant also does not explain any specific benefit to him that would
have resulted from a delay of the proceedings. See Cooper v. State, 509 S.W.2d 565,
567 (Tex. Crim. App. 1974). Like the appellant in Tanguma, appellant never
presented any evidence showing how the trial court’s denial of his motion for
continuance specifically and actually prejudiced his defense. See 47 S.W.3d at 682
(no abuse of discretion in denying continuance where appellant made no showing of
any specific harm). There is no showing what testimony a continuance would have
permitted appellant to discover and produce, or to further develop on cross-
examination. Appellant has failed to show what substantive difference the denial of
the continuance made.

       On this record and based on the circumstances as presented to the trial court,
we conclude that appellant has not shown he was harmed by the denial of his motion
for continuance such that the trial court abused its discretion.         We overrule
appellant’s first issue.

B. Motion for mistrial

       In appellant’s second issue, he argues that the trial court erred by denying his
motion for mistrial due to incurable tainting of the jury during the presentation of
his videotaped statement.

       A mistrial is a device used to halt trial proceedings where error is so
prejudicial that expenditure of further time and expense would be wasteful and futile.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S.
1070 (2000); Smith v. State, 491 S.W.3d 864, 872 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d). We review the denial of a motion for mistrial for an abuse of
discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Smith,
491 S.W.3d at 872. We must uphold the trial court’s ruling if it was within the zone
of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.
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2010), cert. denied, 564 U.S. 1020 (2011). “Only in extreme circumstances, where
the prejudice is incurable, will a mistrial be required.” Hawkins v. State, 135 S.W.3d
72, 77 (Tex. Crim. App. 2004). We determine whether a given error necessitates a
mistrial by examining the particular facts of the case. Ladd, 3 S.W.3d at 567; Smith,
491 S.W.3d at 872.

      Conduct from a witness, bystander, or spectator that interferes with the normal
proceedings of a trial will not result in reversible error unless the defendant shows a
reasonable probability that the conduct interfered with the jury’s verdict. Coble, 330
S.W.3d at 292; Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985) (citing
Ashley v. State, 362 S.W.2d 847 (Tex. Crim. App. 1963), cert. denied, 372 U.S. 956
(1963)), cert. denied, 479 U.S. 871 (1986). “Instructions to the jury are generally
considered sufficient to cure improprieties that occur during trial.” Gamboa v. State,
296 S.W.3d 574, 580 (Tex. Crim. App. 2009). Generally, we presume that a jury
follows the trial court’s instructions. Id. The Texas Court of Criminal Appeals has
held that the trial court’s correction of and instruction to the jury to disregard
improprieties that occur is sufficient to continue a trial without declaring a mistrial.
See, e.g., Coble, 330 S.W.3d at 290–93 (mistrial not necessary where two witnesses
while testifying made spontaneous emotional outbursts involving crying and
expletives, and trial court instructed jury to disregard each outburst); Gamboa, 296
S.W.3d at 580 (same where during testimony victim’s relative shouted, “You did
this for 200 dollars?” and trial court instructed jury to completely disregard
outburst); Ashley, 362 S.W.2d at 850–51 (same where victim’s widow made outcry
during closing arguments and trial court instructed jury to disregard statement and
incident).

      In this case, the children’s behavior (facial expressions of surprise and head-
shaking) was even less severe than that in Coble, Gamboa, and Ashley. It did not

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involve verbal outbursts or any extreme physical conduct. In addition, the trial court
performed an inquiry and confirmed that no juror would be influenced by the
children’s behavior when determining appellant’s credibility.         The trial court
promptly instructed the jury not to consider that behavior in any way during
deliberations. See Coble, 330 S.W.3d at 293; Gamboa, 296 S.W.3d at 580; Ashley,
362 S.W.2d at 851. Nothing in the record suggests that the jury was unable to follow
this instruction, and there was no further mention of the children’s behavior at trial.
See Coble, 330 S.W.3d at 293; Gamboa, 296 S.W.3d at 580.

      Nevertheless, appellant contends that it was impossible to cure the prejudice
against him resulting from the behavior of Escamilla’s children just as it is
impossible to “un-ring a bell,” to forget the wound from a “thrust of the saber,” and
to not smell “a skunk [thrown] into the jury box.” We disagree. That the victim’s
children would express their disagreement with appellant’s statement to police was
hardly unexpected. The nonverbal behavior, while improper, was not inflammatory.
The remainder of appellant’s videotaped statement was published to the jury without
incident.   We cannot conclude that the children’s behavior during appellant’s
statement was “of such a nature that the jury could not ignore it and fairly examine
the evidence in arriving at a verdict.” See Gamboa, 296 S.W.3d at 580.

      Appellant failed to show a reasonable probability that the conduct interfered
with the jury’s verdict. See Coble, 330 S.W.3d at 292–93; Gamboa, 296 S.W.3d at
580. Therefore, the trial court did not abuse its discretion by denying appellant’s
motion for mistrial. We overrule appellant’s second issue.




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                           III.      CONCLUSION

      Accordingly, we affirm the trial court’s judgment.


                                      /s/       Marc W. Brown
                                                Justice


Panel consists of Justices Boyce, Jamison, and Brown.
Publish — TEX. R. APP. P. 47.2(b).




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