Guerrero, Damien

Citation: Not availableDocket: PD-0669-15

Court: Court of Appeals of Texas; July 1, 2015; Texas; State Appellate Court

Original Court Document: View Document

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Damien Guerrero appeals the decision of the Second Court of Appeals, which upheld his conviction for sexual assault of a child and indecency with a child, resulting in a seven-year sentence for each offense. The appeal, filed by attorney Barry G. Johnson, includes critical details such as the trial judge (Hon. Mike Thomas), trial and appellate counsel for both parties, and procedural history, detailing key dates related to the court's decisions and motions.

The appellant raises two main questions for review: the legal sufficiency of DNA evidence in proving penetration when neither the vaginal nor buccal swabs were explicitly identified, and whether the evidence supported the jury's verdict. The appellant argues that the court of appeals erred in concluding that sufficient evidence existed, citing an absence of specific identification of the vaginal swab (Exhibit 24C) by the forensic analyst, Rachel Burch. The appellant contends this lack of identification means the testimony of the alleged victim regarding penetration was not corroborated by physical evidence.

The petition includes a request for oral argument, asserting that it would aid the court in addressing the complexities of the testimony and evidence gaps. The document outlines an index of authorities and provides a prayer for relief, indicating a desire for the court to reconsider the verdict based on the presented arguments.

Exhibits 24B and 24C consist of boxes containing swabs, which were not marked as evidence themselves, while Exhibit 24 is a "sexual assault kit" that holds Exhibits 24A through 24F and is for record purposes only, not for jury use. Testimony from Ms. Burch indicates that she received an envelope from the Fort Worth Police Department containing a box with vaginal and buccal swabs for testing. Ms. Burch identified her lab number, initials, and date on the packaging of the swabs. She confirmed that State's Exhibit 24B is the complainant's buccal swab and mentioned the testing of vaginal swabs as well. Exhibits 27A and 27B, described as envelopes, held sterilized Q-tips used for obtaining buccal samples from the appellant, which Ms. Hinojosa testified about. Although Ms. Burch recognized the envelopes, she did not explicitly state that they were tested for DNA analysis nor clarified whose initials she recognized. There was ambiguity regarding the number of swabs collected from the complainant, as she referred to multiple swabs at times and singular at others. Ultimately, Ms. Burch concluded that Damien Guerrero could not be excluded as the contributor of the sperm found in the vaginal swab.

No direct evidence confirmed that Exhibit 26C contained the complainant's vaginal swab, nor was there testimony establishing that Exhibits 27A and 27B, known to be buccal swabs from the appellant, were tested against the vaginal swab. When evaluating the sufficiency of evidence, appellate courts must consider the evidence favorably toward the verdict to assess if the jury could rationally find guilt beyond a reasonable doubt. The court highlighted significant gaps in the DNA evidence during the trial, particularly regarding the analyst's conclusions about the match to the appellant's DNA, which lacked supporting testimony. The prosecutor emphasized the importance of the DNA evidence in closing arguments, citing a statistic indicating a high probability of the appellant’s DNA being present. Due to substantial deficiencies in the state's proof, the appellant requests that the Petition for Review be granted, seeking either a reversal and acquittal on all charges, a new trial on all charges, an acquittal for aggravated sexual assault of a child with a remand for a new trial on indecency with a child, or a new punishment hearing for the indecency charge. The document concludes with a certification of service and compliance with court rules.