Almaguer, Arturo Sanchez ( 2015 )

"It^'IS
NO • PD-rmVlS ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS •
ARTURO SANCHEZ ALMAGUER,
Appellant/Petitioner
VS.
THE STATE OF TEXAS,
Appellee/Respondent
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
PRO SE
RECEIVED
In Appeal No. 13-14-00312-CR ©OURT OFCRIMINAL APPEALS
from the A(jg 2Q 2015
Court of Appeals
for the Thirteenth Judicial District AB}©IAC
Corpus Christi - Edinburg, Texas
FILED IN
COURT OF CRIMINAL APPEALS
AUS 27 2315
Arturo Sanchez Almaguer
Abel Acosta, Clerk TDCJ#01918635
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
LIST OF PARTIES
APPELLANT
Arturo Sanchez Almaguer
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
Rogelio Garza Pam Alexander
310 W. University Dr. 4009 S. Sugar Road
Edinburg, Texas 78539 Edinburg, Texas 78539
(956) 316-1375 (956) 397-2754
STATESS ATTORNEY AT TRIAL
Victoria Muniz
Hidalgo County DA's Office
Asst.Criminal District Attorney
100 N. Closner
Edinburg, Texas 78539
APPELLANT'S ATTORNEY AT 13th COURT OF APPEALS
Oscar Rene Flores
O. Rene Flores, P.C.
1308 S. 10th Avenue
Edinburg, Texas 78539
STATE'S ATTORNEY ON APPEAL
Theodore "Ted" Hake
Hidalgo County DA's Office
Appellate Division
100 N. Closner
Edinburg, Texas 78539
STATE'S PROSECUTING ATTORNEY
P.O. Box 12405
Austin, Texas 78711
n.
TABLE OF CONTENTS
IDENTITY OF PARTIES ii
INDEX OF AUTHORITIES iv,v
STATEMENT REGARDING ORAL ARGUMENT £g.l
STATEMENT OF CASE Pg.2
STATEMENT OF PROCEDURAL HISTORY Pg.3
GROUNDS FOR REVIEW Pg.4
GROUND NUMBER ONE
Court of Appeals erred by not following established precedent in the
review to determine if the evidence was legally sufficient to support the
capital murder conviction.
GROUND NUMBER TWO
Court of Appeals was without applicable precedent to "test" proof
"beyond a reasonable doubt" on appeal.
ARGUMENT NUMBER ONE Pg-5
ARGUMENT NUMBER TWO Pg.9
PRAYER FOR RELIEF. Pg.14
CERTIFICATE OF SERVICE Pg.15
COA, MEMORANDUM OPINION. .(?^??!??^. !r°.?FJ9Jnf4. ?niY).. -Appendix "A"
(attached to original only)
APPELLANT'S BRIEF • Appendix "B"
ill.
INDEX OF AUTHORITIES
Brown v. State,716 S.W.2d 939,944
(Tex. Crim.App. 1986) pg.4,5
Burks v. United States, 437 U.S.1,18,98 S.Ct.2141, 57 L. Ed. 2d 1
(1978) pg.8,14
Clayton v. State,235 S.W.3d 772,778
(Tex.Crim.App.2007) pg.7
Geesa v. State,820 S.W.2d 154,162
(Tex. Crim.App. 1991) pg.9
Goff v. State,931 S.W.2d 537,550
(Tex.Crim.App. 1996) pg.4,5,10
Guevara v. State, 152 S.W.3d 45,49-52
(Tex. Crim.App. 2004) pg.7
Hooper v. State,214 S.W.3d 9,15-16
(Tex.Crim.App.2007) pg.4,7,11
Jackson v. Virginia,443 U.S.307,318-19,S.Ct.2781,2788-89,
61 L. Ed. 2d 560 (1979) pg.7,14
King v. State,29 S.W.3d 556,564-65
(Tex. Crim.App. 2000) pg.7
Langs v. State,183 S.W.3d 680,686
(Tex. Crim.App. 2006) pg.8
Moreno v. State,755 S.W.2d 866,867 , 28 S.W.3d 570
(Tex. Crim.App. 2000) pg.9
Rodriguez v. State,96 S.W.3d 398,400-01
(Tex.Crim.App.2002) Pg-9
Taylor v. State,332 S.W.3d 485,486
(Tex.Crim.App.2011) pg.6
Threadgill v. State,146 S.W.3d 654,665
(Tex.Crim.App. 2004) pg.4,8
Tovar v. State,165 S.W.3d 785
(Tex.App. - san Antonio 2005) pg.8,14
iv..
Williams v. State,235 S.W.3d 742,750
(Tex.Crim.App.2007) pg>7
In re Winship,297 U.S.358,377,25 L.Ed.2d 368,377, 90 S.Ct.1068,
51 Ohio Op. 2d 323 (1970) pg.9
RULES / STATUTES
Texas Code of Criminal Procedure Art.36.13 pg.5
NO, PD-o^-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ARTURO SANCHEZ ALMAGUER, PRO SE
Petitioner/Appellant
VS.
THE STATE OF TEXAS
Respondent/Appellee
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Petitioner/Appellant respectfully submits this Petition for
Discretionary Review and moves that this Honorable Court grant
review of this cause and offers the following in support thereof:
STATEMENT REGARDING ORAL ARGUMENT
The Petitioner/Appellant DOES NOT request an oral argument
in this case because he believes the facts raised can be discerned
without further explanation or assistance. '
1.
STATEMENT OF CASE
This is a capital murder case with a mandatory life sentence. In 1988,
Wilda and Evan Squires were found murdered in their home. In 2011, some
23 years later, Almaguer was introduced as a suspect based on DNA taken from
forensic samples of feces precerved from the time of the murders. No other,
evidence linked Almaguer to the crime. The State built a circumstantial case
regarding the fecal matter by unsupported speculation. This case-revolves
entirely around the rationality of the inferences about the fecal matter.
2.
STATEMENT OF PROCEDURAL HISTORY
In Cause Number CR-1214-12-D Almaguer was charged with Capital Murder in
the course of burglary by theft. The jury found Almaguer guilty and the Life
Sentence was imposed based on the guilty verdict. The conviction was appealed.
On the 25th day of June, 2015, in an unpublished opinion, the Thirteenth Court
of Appeals Affirmed the judgement of the trial court. A Motion for rehearing
was filed and subsequently denied on the 24th of July, 2015. This Petition for
Discretionary Review was timely forwarded to the Court of Criminal Appeals for
filing pursuant to Rule 9.2(b), Texas Rules of Appellate Procedure.
3.
GROUND FOR REVIEW
I.
PETITIONER ASSERTS THAT THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE
EVIDENCE WAS LEGALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUPPORT A CAPITAL
MUDER CONVICTION.
A) The Court of Appeals erred in considering evidence under the "parties theory"
without a lawful jury charge on the elements of criminal responsibility. This
is contrary to this Court's rulings in: Goff v. State,931 S.W.2d 537,544 (1996);
and Brown v. State,716 S.W.2d 939,944 (1986). [see COA, Mem.Op.,pgs.6-7,sec.3
"Party to the Offense."; and Appellant's Brief pgs.19-27]
B) The Court of Appeals erred by not distinguishing whether the jury verdict
was based on reasonable inference supported by evidence, or speculation, in
determining that Almaguer "was the shooter" and therefore possessed the requisite
intent to kill. This is contrary to this Court's rulings in Hooper v. State,
214 S.W.3d 9,13 (2007); and Threadgill v. State,146 S.W.3d 654,665 (2004).[see
COA, Mem.Op.,pg.6,sec.2 "Murder"; and Appellant's Brief pg.12,14-15]
II.
WITH CONSIDERATION OF PREVIOUS ATTEMPTS TO DEFINE AND APPLY THE PROOF BEYOND
A REASONABLE DOUBT STANDARD, PETITIONER RESPECTFULLY AND HUMBLY SETS FORTH
THREE PROPOSITIONS TO PERSUADE THIS HONORABLE COURT TO "SET NEW PRECEDENT."
A) Beyond a Reasonable Doubt can be clearly defined and applied.
B) Beyond a Reasonable Doubt is a "legal formula" which creates a threshhold
of proof and narrows the theories from which inferences may be drawn.
C) As a "formula" Beyond a Reasonable Doubt can be applied to "test" the
evidence, by a jury or in an appellate court sufficiency of evidence review.
GROUND ONE ARGUMENT
Petitioner asserts that the Court of Appeals erred because there is no "rational
inference" supported by evidence that proves "beyond a reasonable doubt" that
Almaguer, acting as principal, possessed the requisite intent to murder, with
the objective of committing or attempting to commit burglary by theft.
A). "Parties of Offense."
The Court of Appeals, and jury, erroneously considered evidence under the
"parties theory." The jury DID NOT recieve the ,aw on parties charge from court.
Texas Code of Criminal Procedure Art.36.13 states "the jury is the exclusive
judge of facts, but is bound to recieve the law from the court and be governed
thereby." "The test for ascertaining whether a person is a party to an offense
by virtue of his own conduct or by conduct of another for which he is criminally
responsible [is]: 'the trial court should first remove from consideration the
acts and conduct of the nondefendant actor. Then, if the evidence of the conduct
of the defendant then on trial would be sufficient, in and of itself, to sustain
the conviction, no submission of the law of principals is required—On the
other hand, if the evidence introduced upon trial of the cause shows, or
raises an issue, that the conduct of the defendant then upon trial is not
sufficient, in and of itself, to sustain a conviction, the State's case.rests
upon the law of principals and is dependant, at least in part, upon the conduct
of another. In such a case, the law of principals must be submitted and made
applicable to the case." see Brown v. State,716 S.W.2d 939,944 (Tex.Crim.App.
1986). "Under the law of parties, the State is able to enlarge a defendant's
criminal responsibility to acts in which he may not be the principal actor...
Where there is no charge on the law of parties a defendant may only be convicted
on the basis of his own conduct." see Goff v. State,931 S.W.2d 537,544 (Tex.
Crim.App.1996).
"The judge's duty to instruct the jury on the law applicable to the case
exists even when defense counsel fails to object to inclusions or exclusions
in the charge; this may require the judge to sua sponte provide the jury with
the law applicable to the case." see Taylor v. State,332 S.W.3d 483,486 (Tex.
Crim.App.2011).
There is no question that the "parties theory" played a significant role in
how the Court of Appeals, as well as the jury, reached conclusions regarding
whether the evidence supported a finding of guilt as principal or accomplice.
The jury during deliberations at guilt/innocence, requested the Court to
clarify the law of parties. And it is clear that the Court of Appeals used the
law of parties to determine sufficiency.
In this case^the parties theory was introduced during voir dire to influence
the inferences to be drawn from the evidence. The state vacillated between
Almaguer being the principal and accomplice to overcome the obvious lack of
evidence and did abuse the law of parties. The only evidence linking Almaguer
to the crime was DNA obtained from fecal matter, which was not in the immediate
vicinity of the murders. All inferences beyond a finding that the fecal matter
could reasonably be linked to Almaguer are purely unsupported speculation. There
is no direct or circumstantial evidence to support any speculations "created"
to make a finding of guilt.
B)."Reasonable Inference or Speculation?"
The Court of Appeals failed to distinguish between reasonable inference
supported by evidence and speculation, in determining whether there was rational
proof beyond a reasonable doubt, that Almaguer intentionally murdered the victims
of this offense. " The role of a reviewing Court is that of a due process safe
guard, ensuring only the rationality of the trier of fact's finding of essent
ial elements of the offense charged beyond a reasonable doubt." see Moreno v.
State, 755 S.W.2d 866,867 (Tex.Crim.App.1988).
The Court of Criminal Appeals has affirmed murder convictions based soley on
inferences raised by circumstantial evidence, see e.g. Clayton v. State,235 3d
772,778-782 (Tex.Crim.App.2007); Guevara v. State,152 S.W.3d 45,49-52 (Tex.Crim.
2004; King v.State>29 S.W.3d 556,564-65 (Tex.Crim.App.2000). An inference is a
conclusion reached by considering other facts and deducing a logical consequence
from them, see Hooper v. State,214 S.W.3d 9,15-16 (Tex.Crim.App.2007). Specu
lation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. A conclusion reached by speculation may not be completely
unreasonable , but it is not sufficiently based on facts or evidence to support
a finding beyond a reasonable doubt. Id. Each fact need not point directly and
independantly to the guilt of the appellant as long as the cumulative effect of
all the incriminating facts are sufficient to support the conviction. Id.at 13.
Petitioner asserts that the fecal matter from which a DNA test that could not
exclude Almaguer, is circumstantial evidence, and the ONLY evidence from which
all inferences were drawn. Any inferences beyond a link between Almaguer and the
fecal matter is purely speculation. The state created an "imagery association"
between a bowel movement and the bathroom, to lead the jury to an unreasonable
inference that Almaguer was "in the bathroom" which was logically shown to be
the location of the shooter. It is irrational and illogical to use this imagery
association to infer that the person who deposited the fecal matter, is the same
person who was in the bathroom shooting the victims. Nor can it be rationally
inferred that Almagaguer; was criminally responsible for the actions of the person
in the bathroom based on fecal matter alone.
"The reviewing Court is required to ensure that the evidence presented actually
supports a conclusion that the defendant commited the criminal offense of which
he is accused."see Williams v. State, 235 S.W.3d 742,750(Tex.Crim.App.2007);
(citing Jackson v. Virginia, 443 U.S.307,318-19, 99 S.Ct.2781,2788-89, 61 L. Ed.
2d 560 (1979).
Additionally, "the element distinguishing capital murder from felony murder is
the "intent to kill". Felony murder is an unintentional murder committed in the
course of committing a felony while capital murder includes a intentional murder
committed in the course of robbery [burglary] see Threadgill v. State,146 S.W.
3d 654,665 (Tex.Crim.App.2004). [instant case emphasis]
The underlying offense in this case -is burglary. Burglary itself has an
underlying element, see Langs v. State,183 S.W.3d 680,686 (Tex.Crim.App.2006).
In the instant case, the state alluded to "theft" as the underlying offense of
the burglary. To follow the logic of establishing the requisite "intent to kill",
it would require the state to prove that Almaguer had the intent to kill as the
primary means of obtaing property from the residence. To support a capital
murder conviction, the murder would have to take place prior to, or simulataneously
with, the entering of the residence or the theft. If, the murder took place
"after" the initiation of the burglary or theft, it is at best a felony murder.
The sequence of events is the deciding factor between a felony murder and a
capital murder. There is no evidence to make this determination in the instant
case.
Accordingly, Petitioner moves this Honorable Court to reverse the Court of
Appeals judgement affirming the conviction, and enter a judgement of aquittal
based on the finding that the evidence is legally insufficient to support a
capital murder conviction, see Burks v. United States,437 U.S.1,18, 98 S. Ct.
2141,57 L.Ed.2dJ.l (1978). Holding, if the record evidence is legally insufficient
under the Jackson rule, the reviewing Court must render a judgement of aquittal.
see also Tovar v. State, 165 S.W.3d 785 (Tex.App.— San Antonio 2005).
8.
GROUND TWO ARGUMENT
Petitioner asserts' that the "Beyond a Reasonable Doubt Standard" is not
limited to a jury instruction at trial, but is a standard to be applied by an
Appellate Court to test evidence in a sufficiency review.
The Texas Legislature has not defined the term "reasonable doubt" and it was
not until 1991 that the Court of Criminal Appeals adopted a definition of the
term, see Geesa v. State,820 S.W.2d 154,162 (Tex.Crim.App.1991). Geesa's
definition has now been overruled by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.
App. 2000). "Despite its early use in American jurisprudence, the phrase
'reasonable doubt' appears in neither our federal or state constitutions."
see Paulson v. State, 991 S.W.2d 907,911 (Tex.App.-[14th Dist.] 1999), rev'd
on other grounds, Paulson 28 S.W.3d 570; see also In re Winship,297 U.S.358,377
25 L.Ed.2d 368,377, 90 S.Ct.1068, 51 Ohio Op. 2d 323 (1970) (Black J. dissenting),
We know, of course, that the due process clause of the Fourteenth Amendment
to the United States Constitution protects an accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged. Winship, 397 U.S.at 364. Although the "beyond
a reasonable doubt" standard is a requirement of due process, the federal
constitution neither prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course. Victor v. Nebraska,511 U.S. 1,5,
127 L. Ed. 2d 583, 114 S.Ct.1239 (1994). Moreover, the United States Constitution
does not require that any particular form of words:be used in advising the jury
of the prosecutor's burden of proof.-see (citing Rodriguez v. State, 96 S.W.3d
398,400-01 (Tex.App.-Austin[3rd Dist.] 2002). "The role of the reviewing Court
is that of a due process safeguard, ensuring only the rationality of the trier
of fact's finding of the essential elements of the offense [beyond a reasonable
doubt]'.' see Moreno v. State,755 S.W.2d 866,867 (Tex.Crim.App. 1988) [emphasis
added by petitioner].
Petitioner proposes that the foundational purpose of the beyond a reasonable
doubt standard, is to give great weight to the presumption of innocence and
firmly attach a "heavy burden of proof" on the state. If we view the standard
of proof as a "formula" used to find a solution to a specific type of legal
problem- we can then find a plausible definition and application of the proof
beyond a reasonable doubt standard at trail, or on appeal.
This Court has recognized that individual jurors may require different levels
of "proof" in order to be convinced beyond a reasonable doubt, see Goff v. State,
931 S.W.2d 537,550 (1996) . Simply put, "proof" must be decided by the jury,
and "beyond a reasonable doubt" must be decided by rule of law.
The term "beyond" is a transcendental legal term used in law, just like "pi"
in mathmatics. Pi is a constant number without definition. You cannot define
pi, but anyone can "apply it" to find a specific solution. And so it is with
the term "beyond". You cannot define it, but anyone can apply it as part.of an
equation to find a solution to the problem of reasonable doubt.
The beyond a reasonable doubt standard is applied to any case involving
circumstantial evidence, which requires the jury to reach a verdict by drawing
inferrences from theory and evidence. Since the burden is on the State, each
element must be proved from the "same line of reasonaing." The inferrences
relied upon to prove the elements of the offense, must connect to a"single"
theory inferred from the evidence. Elements proved through 'multiple theories,*
would not meet the burden of proof. Each element must "track" the relied upon
theory, and interconnect with all other elements to be considered proved beyond
a reasonable doubt. Evidence submitted to support a theory, "must" be directly
and unquestionably connected to the events and circumstances of the charged
offense. Evidence by theory alone does not meet the burden of proof.
10-
PROPOSED DEFINITIONS
Circumstantial Evidence: evidence that tends to prove a factual matter based
on inference drawn from theory of events and circumstances.
Proof: parsuasion that a fact exists.
Beyond: a transcendental term that limits.
Doubt: question of proof based on "direct" evidence; resolved by jury.
Reasonable Doubt: a legal question of proof based on "circumstantial" evidence,
created when there is "more than one" equally compelling theory from which a
juror is to draw inferrences.
Beyond a Reasonable Doubt: a "legal formula" applied by rule of law to resolve
matters of reasonable doubt, i.e. (reasonable doubt + presumption of innocence
= aquittal).
Proof Beyond a Reasonable Doubt: a threshhold of proof from which no verdict may
fall below, created by applying a legal formula as rule of law, which gives great
weight to the presumption of innocence, and requires a verdict to rest on "one"
theory from which the jury reasonably inferred guilt. The inferrences must be
trackable to one theory regarding evidence relied upon to prove each element of
offense beyond a reasonable doubt. Each element to be proved must be "traceable"
to a proving factor with a direct and undisputable connection to the charged
offense* Circumstantial evidence cannot exist on theory alone and must be
directly Inked and corroborated by "real" evidence, see Hooper v. State, 214 :~:
S.W.3d 9,13 (Tex.Crim.App.2007).
HYPOTHETICAL JURY CHARGE
The State has the burden of proving each element of the offense charged beyond
a reasonable doubt. This requires the State to narrow the evidence to a single
theory from which you may draw! inferrences in reaching your verdict.
11.
You are hereby instructed that the case before you involves circumstantial
evidence, requiring you to reach a verdict from inferrences drawn from the
evidence presented. If, after careful and impartial consideration of all the
evidence in this case, you are faced with reasonable doubt as defined in these
instructions, regarding any element of this offense, you will apply the weight
of the preumption of innocence, giving the defendant the benefit of the doubt,
and enter your verdict as not guilty, by rule of law.
PROPOSED FORMULA APPLIED TO INSTANT CASE
Petitioner relies on the instant case to demonstrate the ffectiveness of
applying a "formula" to determine if the evidence supports a finding of guilt
"beyond a reasonable doubt." The evidence in this case fails on at least two
levels: 1) the inferrences were drawn from an uncorroborated theory that said
Almaguer "was the shooter" based on fecal matter linked by DNA test. 2) The
State presented "more than one theory" from which the jury was expected to
draw inferrences in reaching a verdicti.: Specifically, that Almaguer was the
principal "AND" accomplice. The state introduced the law of parties at voir
dire but did not give a charge on "which" theory to follow in reaching a verdict.
The Court of Appeals erroneously followed this UN-charged parties theory.
Stepl Question: Does the verdict rest substantially or entirely on circum
stantial evidence? Answer: Yes, therefore inference becomes a factor to be
considered.
Step 2 Question: Is the theory from which inferrences can be drawn, supported
by evidence rationally and directly linked to the offense. Answer: No, the
theory from which inferrences were drawn is puely speculation without support
of any "real" evidence. Evidence fails to meet the burden of proof.
12,
Step 3 Question: Is there "more than one" equally compelling theory from which
to draw inferrences? Answer: Yes, the State presented Almaguer as the primary
actor and the accomplice. Evidence fails to move "beyond" reasonable doubt.
Step 4 Question: Is there a legal question of proof regarding reasonable doubt?
Answer: Yes, the theory is unsupported; and there is "more than one" theory
that is equally compelling from which to draw inferrences. Reasonable Doubt +
Presumtion of Innocence = Aquittal. Evidence is legally insufficient to support
a captial murder conviction with an underlying offense of burglary.
Petitioner has presented what he believes to be a strong proposition for
the necessity of a lawful Reasonable Doubt "Formula" and Definition. The
only burden put on the State by this formula is one that is reasonable and
worthy of creating a "high' standard of proof. The State must establish a
"single " theory from which a juror is to draw inferrences and each piece of
evidence presented by the state to "lead" a juror to an inferrence "must"
be directly linked to the events and circumstances of the offense charged.
Extraneous evidence with only a theoretical connection does not meet the
threshhold of proof "beyond" a reasonable doubt. This is especially important
when the charged offense has multiple levels of elements to be proved. "Each"
element must be proved in and of itself. The greater offense is not proved
by the lesser offense in a capital murder offense.
Accordingly, Petitioner humbly shows this Honorable Court that the current
precedent on the beyond a reasonable doubt standard is fundamentally flawed,
and humbly and respectfully moves this Court to "Set New Precedent" to restore
the weight of the presumption of innocence and re-establish the "heavy" burden
of proof on the state in proving it's case.
13,
Petitioner humbly asserts that the evidence is legally insufficient to
support.a finding "beyond a reasonable doubt" as proposed in this Petition
for Discretionary Review. Based on the .application of the propsed "formula"
Petitioner moves this Court to reverse the Court of Appeals judgement affirming
the conviction, and enter a judgement of aquittal based on the finding that the
evidence is legally insufficient to support a conviction. Burks v. United States,
427 U.S. 1,18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) . Holding, if the record
evidence is legally insufficient under the Jackson rule, the reviewing Court
must render a judgement of aquittal. see also Tovar v. State,. 165 S.W.3d 785
(Tex.App-San Antonio 2005).
PRAYER FOR RELIEF
For -the reasons stated herein, it is respectfully submitted that the
Court of Criminal Appeals of Texas should GRANT this Petition for Discretionary
Review.
Respectfully submitted,
on this j^V day of ^JPyJ^V ,2015
By: Arturo
Arturo Sanchez Almaguer #1918635,pro
#1918635,c se
3001 S. Emily Dr.
Beeville, TX 78102
14.
CERTIFICATE OF SERVICE
The undersigned pro se Appellant/Petitioner hereby certifies that a true
and correct carboncopy [without a copy of the Memorandum Opinion] of the
foregoing Petition for Discretionary Review has been mailed, U.S. mail,
postage prepaid, to the District Attorney, Appellate Division, Ted Hake,
100 Closner, Edinburg, Texas 78539, and the State Prosecuting Attorney, P.O.
Box 12405, Austin, Texas 78711, on this /°\ day of Au^uSr ,2015.
Arturo Sanchez Almaguer
15,
CERTIFICATE OF SERVICE
I hereby certify that a carbon copy of the foregoing motion to suspend Rule
9.3 T.R.A.P. has been forwarded to the following parties by U.S.Mail postage
prepaid through the McConnell Unit mailroom. District Attorney, Ted Hake,
Appellate Division, 100 Closner, Edinburg, Texas 78539, and the State Prosecuting
Attorney, P.O. Box 12405, Austin, Texas 78711, On this (*\ day of
ftuc^yf ,2015.
Arturo Sanch^fe Almaquer
2.of 2.
COURT OF APPEALS MEMORANDUM OPINION
•'APPENDIX "A"
APPENDIX "A"
NUMBER 13-14-00312-CR
COURT OF APPEALS /
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ARTURO SANCHEZ ALMAGUER, Appellant,
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Longoria
Appellant, Arturo Sanchez Almaguer, was convicted by a jury on two counts of
capital murder and sentenced to life imprisonment. See Tex. Penal Code Ann.
§ 19.03(a)(2) (West, Westlaw through Chapter 46 2015 R.S.). Appellant challenges his
conviction by two consolidated issues. We affirm.
I. Background
On November 12, 1988, Officer Roberto Moreno of the Weslaco Police
Department responded to a report of shots fired at the Magic Valley Trailer Park in
Weslaco, Texas. Upon his arrival, residents of the trailer park directed him to the Squires
home. Inside the trailer, he discovered a male and a female body on the floor. Officer
Moreno identified the bodies as those of Evan and Wilda Squires. Both appeared to have
been shot and neither was responsive. Both died as a result of the gunshot wounds.
Officer Moreno and other investigators who were called to the scene observed a pile of
human feces on the carpet in one of the rooms, as well as a pair of jean shorts covered
in feces. They also observed a box of silverware lying on the floor, a machete on a chair,
and a radio that appeared to have been wrapped up. Officer Patsy Pemelton observed
a trail of clothes leading from the side door of the trailer down to a drain ditch some
distance away. At the end of the trail, she found a bag containing clothes as well as a
torn shirt that was also covered in feces. Officer Pemelton took these items into evidence.
In 2005, the Texas Department of Public Safety ("DPS") DNA lab in McAllen,
Texas, obtained partial DNA profiles from the fecal stains on both the torn shirt found at
the end of the trail and the jean shorts found at the Squires' home. In 2012, the DPS
DNA lab received a known DNA sample from appellant. The lab compared the DNA
profiles from the shirt and jean shorts to appellant's DNA profile. DNA analyst Alejandro
Madrigal testified that appellant could not be eliminated as a potential contributor to the
DNA profiles found on the clothing. The State indicted appellant on three counts of capital
murder. See id. A jury convicted appellant on all three counts of capital murder. The
State elected to dismiss Count 1 after receiving the verdict, and appellant was
automatically sentenced to life imprisonment.1
II. Legally Insufficient Evidence
By his first issue, appellant asserts that the evidence is legally insufficient to
support a finding beyond a reasonable doubt that he intentionally caused the deaths of
Evan and Wilda Squires.
A. Standard of Review and the Applicable Law
The standard for reviewing the existence of legally sufficient evidence is whether
any rational trieroffact could have found all the essential elements of the charged offense
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We
view the evidence in the light most favorable to the verdict. Id. The jury serves as the
exclusive judge of the facts, the credibility of the witnesses, and the weight given to the
witnesses' testimony. Williams v. State, 226 S.W.3d 611, 615 (Tex. App:—Houston [1st
Dist.] 2007, no pet.). The jury may believe all, some, or none of the testimony presented.
Id. In our review, we must uphold the jury's verdict unless it is irrational or if it is not
supported by more than a mere modicum of evidence. Gomez v. State, 234 S.W.3d 696,
702 (Tex. App.—Amarillo 2007, no pet.). Every single fact presented does not have to
point directly and independently to the defendant's guilt; it is sufficient if the conclusion is
reasonable by the cumulative effect of all the incriminating circumstances. Alexander v.
State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). The standard of review is the same
for both direct and circumstantial evidence. Frank v. State, 265 S.W.3d 519, 521 (Tex.
App.—Houston [1st Dist.] 2008, no pet.).
1 Appellant was also indicted for murdering more than one person during the same criminal
transaction. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West, Westlaw through Chapter 46 2015 R.S.).
We measure the legal sufficiency of the evidence against the elements of the
offense as defined by a hypothetically correct jury charge. Curry v. State, 975 S.W.2d
629 (Tex. Crim. App. 1998). A hypothetically correct jury charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily increase the
State's burden of proof or restrain the State's theory of criminal responsibility, and
adequately describes the particular offense for which the defendant was tried. Triplett v.
State, 292 S.W.3d 205, 210 (Tex. App.—Amarillo 2009, pet. ref'd).
Here, the State was required to prove that appellant murdered the Squires in the
course of committing or attempting to commit burglary. See Tex. Penal Code Ann.
§ 19.03(a)(2). Aperson commits murder if he "intentionally or knowingly causes the death
of an individual." See id. A person commits burglary if: (1) without consent of the owner,
(2) the person enters a habitation (3) with intent to commit a felony, theft, or assault. See
id. § 30.02 (West, Westlaw through Chapter46 2015 R.S.); Gardner v. State, 306 S.W.3d
274, 287 (Tex. Crim. App. 2009) (stating that appellant committed burglary when he
entered the victim's home without her effective consent and committed murder).
B. Discussion
Appellant argues that no evidence, circumstantial or otherwise, was presented to
show that he caused the death of either Mr. or Mrs. Squires. Although DNA evidence
was presented to show that appellant was at the crime scene, there was no evidence to
show that he was present at the time of the murders. Even though appellant does not
dispute that circumstantial evidence is sufficient to establish guilt, he contends that
convictions cannot be upheld if based solely on speculation. Appellant argues that the
only link to the offense was his DNA at the scene of the crime; that DNA alone is not
sufficient evidence to show he intentionally caused the death of the Squires; and that the
DNA evidence is also insufficient to show that he was in the course of committing or
attempting to commit a burglary.
1. Burglary
Here, the State was required to prove that appellant had entered the Squires' home
without their consent to commit a felony. See Tex. Penal Code Ann. § 30.02. The jury
heard evidence that the Squires appeared to have been awakened in the middle of the
night and at a time they were usually already in bed. The evidence showed that
appellant's DNA was discovered at the Squires' home in the form of feces on the carpet
and on more than one article of clothing. An investigator testified that the feces appeared
to be fresh because the odor strongly permeated the scene when he arrived a few minutes
after the shots were fired. Furthermore, silverware and other valuables were found in
what appeared to be odd places around the home and outside. A radio appeared to be
wrapped up as if in preparation of being moved elsewhere and a machete had been
placed on a chair. Appellant's DNA placed him inside the Squires' home and at the end
of the trail of clothing outside the home. Therefore, the evidence could have permitted
the jury to make a logical inference as to appellant's unlawful presence in the Squires'
home that night as well as his attempt to commit a burglary. See id.; Matamoros v. State,
901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (holding that the defendant committed
burglary because the evidence was sufficient to establish that the victim was sleeping in
his bed when the defendant entered the house without his victim's consent and the
defendant surprised and killed him).
2. Murder
To prove the offense of capital murder, the State was required to show that
appellant intentionally or knowingly shot the Squires and caused their deaths. See id.
§19.03(a)(2). Appellant argues that no direct or circumstantial evidence was presented
that could prove he intended to cause the death of either Squires. Appellant contends
that the intent element for capital murder was not proven by the State because the State
did not present any evidence that he harbored ill will towards them and the record
contained no evidence of appellant's fingerprints at the crime scene or eye witnesses who
could place him near the scene.
However, contrary to appellant's contention that the record is bereft of any
evidence to infer that he possessed the requisite intent to commit murder, the evidence
showed that the Squires were shot at a close range of between two and four feet. At such
close proximity to the victims, the law presumes an intent to kill. See Sholars v. State,
312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd.); Childs v. State,
21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd.). Furthermore, the
bullet that exited Mr. Squires' body was lodged into the wall opposite the bathroom, and
Mr. Squires fell forward into the bathroom. Such placement of the bullet and his body
indicates that the shooter was in the bathroom when he shot Mr. Squires. The jury could
logically infer from this evidence and the presence of his feces elsewhere in the house
that appellant was the shooter because he was unable to control his bowels that night
and was in the bathroom when he shot Mr. Squires.
3. Party to the Offense
The evidence also indicates that multiple parties participated in the burglary.
Under a hypothetically correct jury charge, the jury could convict appellant if it found that
he was present at the commission of the offense and he encouraged or aided another
person in intentionally causing the death of the Squires. See Tex. Penal Code Ann.
§ 7.02(a)(2); King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000). In reviewing the
sufficiency of the evidence to support appellant's participation as a party to the offense,
we may consider evidence occurring before, during, and after the commission of the
offense and may rely on his actions showing an understanding and common design to do
the prohibited act. Gross v. State, 352 S.W.3d 238, 240 (Tex. App.—Houston [14th
Dist.]), aff'd, 380 S.W.3d 181 (Tex. Crim. App. 2012).
Appellant argues that while the evidence shows that someone intentionally and
knowingly caused the deaths of the Squires, the evidence does not prove that appellant
was present at the time the murders were committed. However, there were two sets of
footprints found in the Squires' home. Appellant's DNA establishes that he was there
shortly before the first police officer arrived because the fecal matter was still fresh. As
previously mentioned, his DNA was also found at the end of the trail leading from the
Squires' home to a ditch some distance away. The pajamas found outside on the trail
matched the pajamas of the victim left inside the home, further indicating a burglary was
being committed. Finally, neither Mr. nor Mrs. Squires owned any firearms. The jury
could reasonably inferfrom such evidence that appellant was present at the commission
of the burglary and that he or his accomplice brought a firearm with them with the intent
of murdering the inhabitants of the residence should they interfere with the burglary. See
Gardner, 306 S.W.3d at 287. Thus, considering the evidence of the events that occurred
during and after burglary, we conclude that the evidence presented was legally sufficient
to support appellant's conviction. We overrule appellant's first issue.
III. Motion for a New Trial
By his second, third, and fourth issues, appellant asserts that the trial court abused
its discretion by denying his motion for a new trial because the court unconstitutionally
applied Texas Rule of Evidence 606(b) and improperly excluded juror testimony. We
review these issues together.
A. Standard of Review and the Applicable Law
We review a trial court's denial of a motion for a new trial under an abuse of
discretion standard, and we reverse only when the trial judge's opinion was so clearly
erroneous as to lie outside the zone within which reasonable persons might disagree.
Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App. 2011). If there is no such abuse
of discretion, we are not justified in reversing the judgment. Id. We view the evidence in
the light most favorable to the trial court's ruling. Lopez v. State, 428 S.W.3d 271, 278
(Tex. App.—Houston [1st Dist.] 2014, pet. refd). We do not substitute our judgmentfor
that of the trial court, but will uphold the ruling if it was within the zone of reasonable
disagreement. Weadv. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
Texas Rule of Evidence 606(b) provides that, during an inquiry into the validity of
a verdict or an indictment, a juror may not testify as to any matter or statement occurring
during the jury's deliberations, to the effect of anything on that juror's or another juror's
vote, or any juror's mental processes concerning the verdict or indictment. Tex. R. Evid.
606(b). The court may not receive a juror's affidavit or evidence of a juror's statement on
these matters. Id. However, a juror may testify under two exceptions: (1) as to whether
any outside influence was improperly brought to bear on any juror; or (2) to rebut a claim
that the juror was not qualified to serve. Id.
8
B. Discussion2
Appellant argues that he is entitled to a new trial because of juror misconduct that
occurred during voir dire proceedings and during jury deliberations at trial. He contends
that during voirdire proceedings, the State introduced and explained the law of parties to
the venire panel even though the law of parties was not authorized by the charge of the
court. According to appellant, this constituted an "outside influence" that was improperly
brought to bear on jurors under the first exception of Texas Rule of Evidence 606(b).
Furthermore, appellant argues that, according to juror Maribel Martinez's affidavit, the jury
found appellant guilty based on the law of parties and there was not enough evidence to
convict him of murder as a principal. To support this contention, defense counsel
introduced into evidence notes from the jurors asking for clarification on the law of parties.
Appellant further asserts that the trial court abused its discretion in denying his motion for
a new trial because he was not given the opportunity to develop the record on appeal and
because Rule 606(b) was applied unconstitutionally.
The "outside influence" exception allows proof of external pressures that may
affect the verdict, and it is limited to those situations that occur both outside of the jury
room and outside of the jurors' personal knowledge and experience. See Tex. R. Evid.
606(b); Colyerv. State, 428 S.W. 3d 117,124 (Tex. Crim. App. 2014). The State brought
up the law of parties during voir dire, before the jury had even been selected. Maribel
2 Appellant argues that Texas Rule of Evidence 606(b) is unconstitutional as applied to him.
Appellant does not dispute that Texas Rule of Evidence 606(b) has been deemed constitutional by
provisions of both the federal and state constitutions and he does not give a substantial reason as to why
it should be held unconstitutional in his particular case. Appellant does not cite to any authority to support
his contention that Rule 606(b) is unconstitutional as it pertains to his case. Under Texas Rule of Appellate
Procedure 38.1, appellant must provide specific arguments and authorities that support his argument to
effectively brief a constitutional issue. See Tex. R. App. P. 38.1; Hicks v. State, 15 S.W.3d 626, 630 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref'd.). Thus, because appellant has not complied with the briefing
requirements of Rule 38.1, we hold that appellant has waived appellate review of his constitutionality issue.
Martinez had not yet been designated as a juror, and was merely a member of the venire
panel. The information about party liability that she obtained from the State was acquired
prior to being selected to serve on the jury. See Tate v. State, 414 S.W.3d 260, 264
(Tex. App.—Houston [1st Dist.] 2013, not pet.) (stating that a jury's decision was not
affected when a member of the venire panel acquired information relevant to the case
prior to being selected to serve on the jury). Furthermore, information given to the venire
members by the parties during voir dire is not an outside influence because it was part of
normal court proceedings. See Franks v. State, 90 S.W.3d 771, 802 (Tex. App.—Fort
Worth 2002, no pet.). Texas courts have considered factual or legal information conveyed
to the jurors by an unauthorized individual who seeks to affect the deliberations as an
"outside influence." See Colyer, 428 S.W.3d at 125. Appellant does not allege that the
State provided factual or legal information to the jury outside of the normal proceedings
of the trial. Thus, the jury's consideration of the law of parties was not an "outside
influence" improperly brought to bear against the jury. See Tex. R. Evid. 606(b); see also
Franks, 90 S.W.3d at 802. The trial court did not abuse its discretion by denying
appellant's motion for new trial. We overrule appellant's second issue.
III. Conclusion
Under the facts of this case, we conclude that (1) the evidence was legally
sufficient to uphold appellant's conviction; and (2) the trial court did not abuse its
discretion by denying appellant's motion for a new trial.
10
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the
25th day of June, 2015.
11
APPELLANT'S BRIEF ON APPEAL
APPENDIX "B"
APPENDIX "B"
13-14-UU31i!-
THIRTEENTH COURT OF APF
CORPUS CHRISTI, Tl
11/18/2014 3:37:39
'V
DORIAN RAMI
CLI.
NO. 13-14-00312-CR
In the Thirteenth Court^ of Appeals
Edinburg, Texas
Arturo Sanchez Almaguer
Appellant
v.
State of Texas
Appellee
On Appeal from Cause Number CR-1214-12-D
206th Judicial District Court of Hidalgo County, Texas
Hon. Rose Guerra Reyna Presiding
APPELLANT'S BRIEF
NO ORAL ARGUMENT REQUESTED O. RENE FLORES
State Bar Number 24012637
O. Rene Flores, P.C.
13 08 S. 10th Avenue
Edinburg, Texas 78539
(956) 383-9090 Telephone
(956) 383-9050 Facsimile
Counsel for Appellant
G COPY
i
V
IDENTITY OF PARTIES AND COUNSEL
Appellant Appellate Counsel
Arturo Sanchez Almaguer Oscar Rene Flores
0. Rene Flores, P.C.
1308 S. 10th Avenue
Edinburg, Texas 7 853 9
Trial Counsel
Rogelio Garza
310 W. University Dr.
Edinburg, Texas 78539
(956) 316-1375
Pam Alexander
4009 S. Sugar Road
Edinburg, Texas 78539
(956) 397-2754
Appellee Trial Counsel
State of Texas Victoria Muniz
Hidalgo County DA's
Office
Asst. Criminal
District Attorney
100 N. Closner
Edinburg, Texas 7 8539
Appellate Counsel
Theodore "Ted" Hake
Hidalgo County DA's
Office
Appellate Division
100 N. Closner
Edinburg, Texas 78539
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE vi
STATEMENT REGARDING ORAL ARGUMENT vii
ISSUES PRESENTED vi i i
I s sue One vi i i, 7
I s sue Two vi i i, 19
Issue Three vii i, 19
I s sue Four ix, 2 0
STATEMENT OF FACTS 1
SUMMARY OF THE ARGUMENT 6
ARGUMENT 20
PRAYER 36
CERTIFICATE OF SERVICE 39
CERTIFICATE OF COMPLIANCE 39
in
INDEX OF AUTHORITIES
Cases
Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141,
57 L. Ed. 2d 1, (1978) 19
Charles v. State, 146 S.W.3d 204, 210
(Tex. Crim.App. 2004) 22
Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App .2007) 9
Davis v. State, 111 S.W.3d 355, 358 (Tex.App.-Houston
[1st Dist.] 2005, no pet.) 10
Guevara v. State, 152 S.W.3d 45, 49-52
(Tex. Crim. App .2004) 12
Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App .2007) 12
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct.
2781, 2788-89, 61 L. Ed. 2d 560 (197 9) 8,19
Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston
[1st Dist.] 2003, pet. ref'd) 10
Jones v. State, 815 S.W.2d 667, 669
(Tex. Crim. App .1991) 27
King v. State, 29 S.W.3d 556, 564-65
(Tex. Crim. App .2000).'. 12
Losada v. State, 721 S.W.2d 305, 309
(Tex. Crim. App .1986) ) 10
Moreno v. State, 755 S.W.2d 866, 867
(Tex. Crim.App. 1988) 9
IV
Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.
[Pane 1 Op. ] 1981) 10
Riley v. State, 378 S.W.3d 453, 457
(Tex. Crim. App .2012) 21
State v. Herndon, 215 S.W.3d 901, 905 n. 5
(Tex. Crim. App .2007) ) 22
Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211,
2218, 72 L. Ed. 2d 652 (1982) 9
Tovar v State, 165 S.W.3d 785 (Tex. App. San Antonio
2 0 05) 19
Walker v. State, 823 S.W.2d 247, 248
(Tex. Cr im. App .1991) 27
Will. v. State, 235 S.W.3d 742, 750
(Tex. Crim. App .2007) 8
Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2 000) ...10
Riles/Statutes
Texas Rule of Appellate Procedure Rule 21.3 21,28
Texas Rule of Appellate Procedure Rule
21.3(g) 31,35,36,37
Texas Rule of Appellate Procedure Rule 21.8(b) 22
Tex. R. Civ. P. 166a (c) ..22
Tex. R. Evid. 606(b) 27,33,36
Constitution
Article I, section 15, of the Texas Constitution 19
Sixth Amendment of the United States Constitution 19
TO THE HONRABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:
Appellant, Arturo Sanchez Almaguer, files this
brief requesting that the Court reverse and render a
judgment of acquittal or alternatively remand for a new
trial. Appellant Almaguer respectfully shows:
STATEMENT OF THE CASE
Nature of the Case Appellant was indicted for
three counts of capital
murder. This is an appeal
from convictions on Counts 2
and 3. The State Moved to
Dismiss Count l.1 See TRAP 43;
TEX. Penal. Code Ann. Section
19.02(b)(1)and (3); CR7-8;
132-137; 147
Course of Proceedings Appellant Almaguer pleaded
'Not Guilty" and was tried by
1Note that the jury convicted Appellant Almaguer of all three counts in the indictment. The Statehowever elected
to dismiss count one of the indictment after the verdict.
VI
a jury. At the guilt-
innocence phase of the trial,
the jury returned verdicts of
guilty as charged in the
indictment in counts 1, 2 and
3 for the offense of Capital
Murder. (CR7-8; 132-137)
(RR17@55-56)
Trial Court's Disposition After having found Appellant
guilty of Capital Murder the
Court assessed punishment at
LIFE imprisonment in the
Institutional Division of the
Texas Department of Criminal
Justice. The trial court
rendered judgment on the
verdicts accordingly.
STATEMENT REGARDING ORAL ARGUMENT
Appellant Almaguer is not requesting Oral Argument at
this time.
VII
ISSUES PRESENTED
ISSUE NUMBER ONE
The evidence in this case is legally insufficient to
support a finding beyond a reasonable doubt that
Appellant Almaguer intentionally caused the death of
Evan and/or Wilda Squires; the evidence in this case is
legally insufficient to support a finding beyond a
reasonable doubt that Appellant Almaguer was present at
the time that the killings took place; the evidence in
this case is legally insufficient to support a finding
beyond a reasonable doubt that Appellant Almaguer is
guilty of Capital Murder.
ISSUE NUMBER TWO
The Trial Court Unconstitutionally Applied Rule 606(B)
Of The Texas Rules Of Evidence, Resulting In A
Violation Of Appellant Almaguer's Right To Trial By
Jury As Mandated By Article I, Section 15, Of The Texas
Constitution And Of His Right To A Fair And Impartial
Jury As Provided By The Sixth Amendment Of The United
States Constitution.
ISSUE NUMBER THREE
The Trial Court Erred By Denying Appellant A Post-
Conviction Inquiry Of Juror Maribel Martinez Regarding
Whether The Jury Deliberated On The Law Of Parties In
Reaching A Verdict Of GUILTY When The Jury Charge Did
Not Authorize A Conviction Of Capital Murder As A
Party. The Trial Court Reversibly Erred By Denying
Appellant Almaguer To Develop The Record To Show That
This Outside Influence Was Brought To Bear On The Jury
During Deliberations.
VIII
ISSUE NUMBER FOUR
The Trial Court Abused Its Discretion By Denying
Appellant's Motion For New Trial.
IX
STATEMENT OF FACTS
Responding Officer Roberto Moreno
At approximately 11:26 p.m. on November 13, 1988,
Weslaco Police Officer Roberto Moreno responded to
"shots fired" at the Magic Valley Trailer Park in
Weslaco, Texas. RR15019-22 Moreno was directed to the
trailer belonging to the victims in this case by a
stander-by, Eileen Myer, a resident of the trailer
park. She and Mary Nestle gave Officer Moreno a
description of the assailant and it was later given to
the investigators in the case. RR15O3 0, 31, 48 Upon
entry into the residence, Officer Moreno observed two
bodies located in the hallway of the mobile home. He
observed a male and a female - they had been shot.
Moreno checked them for pulse; they were unresponsive.
Moreno contacted EMS and called for investigators to be
dispatched to the scene. RR15@22,23, 50 While at the
scene, Moreno observed what he believed to be "fecal
matter" in one of the rooms.
Investigator Bruce Kennedy
On November 13, 1988, Investigator Bruce Kennedy
had been an investigator with Weslaco PD for about a
year; this was his first homicide investigation.
Although not on duty that night, he was called in late
and told to bring his personal video recorder as the PD
did not have one of its own. Kennedy made a video of
the crime scene that night - he hasn't seen it since.
RR15@55, 58-59,78-79, 81
While Kennedy walked through the crime scene that
night, he observed what he believed was fecal matter
and some denim shorts covering the fecal matter, both
of which were collected as evidence. RR15@66-67, 92
Kennedy also testified that at the time of the
investigation, there were two suspects, yet no
information was gathered from the crime scene "linking"
these suspects at that time. RR15@78 The
investigation believed there were two suspects because
two sets of footprints were observed leaving the scene.
RR15085, 90
CSI Pat Pemelton
This witness documented the scene in photographs.
RR15@lll-ll2 In one of the rooms, she described what
she believed to be feces covered with denim shorts.
RR15@140-142; State's Exhibit 62-66 Pemelton also
testified describing the "trail of clothing" dropped
outside the trailer and speculates that the person who
dropped them must've been in a hurry to leave.
RR150146-147, 149-150 Ultimately Pemelton confirmed
that no evidence as to who this clothing belonged to
was recovered. RR150182 Nor was a murder weapon
recovered. RR15@179, 205
Investigator Billy Pemelton
Pemelton first became involved in this case in
2011, when appellant Almaguer first became a suspect.
RR15O2 09, 212 He traveled to Michigan to obtain a
warrant for the DNA sample of Appellant. RR15@213
This witness admitted that there was no other evidence
other than the DNA profile that pointed to Appellant in
this case. RR16O102 Pemelton further admitted "we
don't know whether he killed them or not," when asked
f
/ if he knew that Appellant committed these murders.
RR16@128
Dr. Norma Jean Farley
Testified that gunshot wounds to the left chest of
Evan Squires and a gunshot wound to the chest of Wilda
Squires were determined to be the cause of death to the
victims in this case. RR15O239-240
William Lawrence Jury
This is Wilda Squires' son. Evan Squires was her
second husband. This witness described Evan Squires'
son as having an estranged relationship with his father
and Wilda. Although he believed this was a robbery
gone badly, he admitted that nothing was missing from
the trailer. RR16@7-13, 17
Crime Lab Analyst Alex Madrigal
This witness testified re: the forensic analysis of
DNA and about the forensic samples which had been
preserved from the time of the murder. There were
samples submitted for analysis in this case.
Specifically, this witness identified samples of the
clothing found and found that the DNA profile present
on those items was consistent with the DNA profile of
Appellant Almaguer. RR16O29-3 0, 35-36, 67
Madrigal testified that he had no DNA evidence to
show that Appellant Almaguer committed these murders.
In fact, Madrigal testified that he could not say that
the DNA on these items belongs to Appellant Almaguer.
RR16@51, 58
Lieutenant Robert Vallejo
Testified that he'd had a conversation with a man by
the name of Paul Boychuck. After the murders, Boychuck
went and told Vallejo that three days prior to the
murders, Wilda Squires had shared with him she feared
for her life; that she and her husband had been
threatened; that she and her husband had been given
"until Sunday" to change the will giving him half the
money. The person making the threats was never
identified but Evan Squires' son was the only one
identified as having an estranged relationship with his
parents. RR16@156-159, 161
SUMMARY OF THE ARGUMENT
Appellant argues that the evidence is legally
insufficient to support his conviction because there
was no evidence presented that Appellant caused or even
intended to cause the death of either of these victims.
Further, although there was DNA evidence presented to
show that Appellant's DNA profile was at the crime
scene, there was no evidence to show when it was that
Appellant was there. Even the investigators in this
case admitted they did not know whether or not
Appellant committed this crime. Nor could forensic
investigators testify when Appellant's DNA profile was
deposited at the scene. Appellant avers that these
facts conclusively establish a reasonable doubt as to
whether appellant in fact did commit the offense of
which he was convicted.
Texas Rule of Evidence 606(b) was
unconstitutionally applied in this case when the trial
court denied Appellant Almaguer a post-conviction
inquiry in order to develop the record to show Juror
misconduct as contemplated by Tex. Rule of Appellate
Procedure 21.8(g). In so doing, the Trial Court failed
to recognize and admit evidence that the jury in this
case reached a verdict based on the Law of Parties,
which they were unauthorized to do since the charge of
the court did not instruct the jury on the law of
parties. Appellant Almaguer therefore, avers that the
trial court abused it's discretion in denying
Appellant's Almaguer Motion for New Trial.
ISSUE NUMBER ONE
The Evidence In This Case Is Legally Insufficient To
Support A Finding Beyond A Reasonable Doubt That
Appellant Almaguer Intentionally Caused The Death Of
Evan And/Or Wilda Squires; The Evidence In This Case Is
Legally Insufficient To Support A Finding Beyond A
Reasonable Doubt That Appellant Almaguer Was Present At
The Time That The Killings Took Place; The Evidence In
This Case Is Legally Insufficient To Support A Finding
Beyond A Reasonable Doubt That Appellant Almaguer Is
Guilty Of Capital Murder.
Appellant argues that the evidence is legally
insufficient to support his conviction because there
was no evidence presented that Appellant intended to
cause the death of either of these victims. Further,
although there was DNA evidence presented to show that
Appellant was at the crime scene, there was no evidence
to show when it was that Appellant was there. Even the
investigators in this case admitted they did not know
whether or not Appellant committed this crime. Nor
could forensic investigators testify when Appellant's
DNA was deposited at the scene. Appellant avers that
these facts "conclusively establish a reasonable doubt
as to whether [appellant] in fact did commit the
offense of which he was convicted."
The legal sufficiency of the evidence should be
reviewed by considering all of the evidence in the
light most favorable to the verdict to determine
whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable
doubt. Williams v. State, 235 S.W.3d 742, 750
(Tex.Crim.App.2007) {citing Jackson v. Virginia, 443
U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d
560 (1979)). Evidence is legally insufficient when the
"only proper verdict" is acquittal. Tibbs v. Florida,
457 U.S. 31, 41-42, 102 S. Ct. 2211, 2218, 72 L. Ed. 2d
652 (1982). The role of a reviewing Court is that of a
due process safeguard, ensuring only the rationality of
the trier of fact's finding of the essential elements
of the offense charged beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867
(Tex.Crim.App.1988). In doing so, deference is to be
given to the responsibility of the fact finder to
fairly resolve conflicts in testimony, weigh evidence,
and draw reasonable inferences from the facts. Id. The
reviewing Court should defer to the fact finder's
resolution of conflicting evidence unless the
resolution is not rational. See Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007) . But the reviewing
court is required to ensure that the evidence presented
actually supports a conclusion that the defendant
committed the criminal offense of which he is accused.
See Williams, 235 S.W.3d at 750.
Jurors are the exclusive judges of the facts, the
credibility of the witnesses, and the weight to be
given the witness's testimony. Penagraph v. State, 623
S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981);
Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston
[1st Dist.] 2003, pet. ref'd). And, they may choose to
believe or disbelieve any part of a witness's
testimony. See Davis v. State, 111 S.W.3d 355, 358
(Tex.App.-Houston [1st Dist.] 2005, no pet.). Likewise,
"reconciliation of conflicts in the evidence is within
the exclusive province of the jury." Wyatt v. State, 23
S.W.3d 18, 30 (Tex.Crim.App.2000) (quoting Losada v.
State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986)).
Ordinarily, to sustain a conviction for capital
murder as charged in this indictment, the evidence must
demonstrate that: 1) the accused intentionally or
knowingly caused the death of an individual and that
the accused was then and there in the course of
committing or attempting to commit the offense of
burglary of a habitation; and further that the victims
10
were the owners of said habitation. Tex. Penal Code §§
19.02(b)(1), 19.03(a)(2). Testimony from the several
witnesses presented in this case showed the only
evidence linking Appellant to this crime was a "DNA
profile" "consistent" with Appellant's DNA profile.
Note that Alex Madrigal from the crime lab testified
that he could not say that the DNA submitted in this
case even belonged to Appellant. RR16@58. DNA is
durable; it does not evaporate or dissipate, and the
time at which it was deposited on a surface cannot be
directly determined. Evidence of a DNA profile
consistent with Appellant, without more, could not have
led a rational person to believe beyond a reasonable
doubt that Appellant caused the death of these victims
or that Appellant was in the course of committing or
attempting to commit the burglary alleged here.
What about circumstantially? Circumstantial
evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.
11
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).
The Court of Criminal Appeals has affirmed murder
convictions based solely on inferences raised by
circumstantial evidence. See, e.g., Clayton, 235 S.W.3d
at 778-82; Guevara v. State, 152 S.W.3d 45, 49-52
(Tex.Crim.App.2004) ; King v. State, 29 S.W.3d 556, 564-
65 (Tex.Crim.App.2 000). An inference is a conclusion
reached by considering other facts and deducing a
logical consequence from them. Hooper, 214 S.W.3d at
16. Speculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented.
Id. A conclusion reached by, speculation may not be
completely unreasonable, but it is not sufficiently
based on facts or evidence to support a finding beyond
a reasonable doubt. Id. Each fact need not point
directly and independently to the guilt of the
appellant, as long as the cumulative effect of all the
incriminating facts are sufficient to support the
conviction. Id. at 13.
12
In this case, it was undisputed at trial that Wilda
and Evan Squires died as a result of gunshot wounds;
that sometime after 11:00 p.m. on November 13, 1988,
each was shot in the chest. State's witness Roberto
Moreno testified that he responded to the scene at
11:26 p.m; that he arrived and observed two bodies
located in the hallway, unresponsive; that these bodies
had been shot. RR15@22-23 Dr. Norma Jean Farley
testified that the cause of death of both victims was
gunshot wounds to the chest. RR15@239-240 This
evidence inarguably supports a finding that someone
intentionally and knowingly caused the Squires' death
and that the deaths were the result of having been shot
with a firearm. Appellant argues that in examining the
record to determine whether the evidence, viewed in the
light most favorable to the verdict, is legally
sufficient to support a finding that appellant was
responsible, there is insufficient evidence to sustain
this conviction.
13
There was no evidence upon which a rational trier
of fact could have relied in finding beyond a
reasonable doubt that Appellant Almaguer was present at
the crime scene at the time that the murders were
committed. Nor was there any circumstantial evidence
from which a rational trier of fact could have drawn an
inference that Appellant Almaguer was present at the
crime scene at the time that the murders were
committed.
There was no evidence upon which a rational trier
of fact could have relied in finding beyond a
reasonable doubt that Appellant Almaguer fired a weapon
on the night of November 13, 1988. Nor was there any
circumstantial evidence from which a rational trier of
fact could have drawn an inference that Appellant
Almaguer fired a weapon on the night of November 13,
1988. Pat Pemelton testified that there was no weapon
recovered in this case. Nor was there any forensic
analysis/evidence presented regarding the bullet
fragments found that affirmatively linked Appellant to
14
the weapon used in this case. Nor was there any
ballistic evidence upon which the jury could have
relied in drawing an inference that Appellant was
linked to the weapon used to commit these murders.
RR15@205
There was no evidence upon which a rational trier
of fact could have relied in finding beyond a
reasonable doubt that Appellant Almaguer intended to
cause the death of Evan and/or Wilda Squires on the
evening of November 13, 1988 or that Appellant Almaguer
even harbored any ill-will toward either of them. Nor
was there any circumstantial evidence from which a
rational trier of fact could have drawn an inference
that Appellant Almaguer intended to cause the death of
Evan and/or Wilda Squires on the evening of November
13, 1988 or that Appellant Almaguer even harbored any
ill-will toward either of them. There was no evidence
upon which a rational trier of fact could have relied
in finding beyond a reasonable doubt that Appellant
Almaguer intended to burglarize and/or rob either of
15
the victims that night. Nor was there any
circumstantial evidence from which a rational trier of
I fact
Almaguer
could have
intended
drawn
to
an
burglarize
inference
and/or
that
rob
Appellant
either of
the victims that night.
Simply, the only evidence purporting to link
Appellant Almaguer to the crime scene was his "DNA
Profile." Investigator Billy Pemelton admitted that
the DNA was the only evidence they had linking
Appellant to this crime. Even so, although he had a
"belief that Appellant was responsible," neither he nor
his investigators knew whether Appellant killed Wilda
and Evan Squires or not. RR16@89, 102 128 Even
assuming arguendo that the DNA profile was "consistent"
with that of Appellant Almaguer, there was no evidence
upon which a rational trier of fact could have relied
in finding beyond a reasonable doubt that Appellant
Almaguer was present at the time that the Squires were
murdered. Nor was there any circumstantial evidence
from which a rational trier of fact could have drawn an
16
inference that Appellant Almaguer was present at the
crime scene at the time that the murders were
committed. If, as will likely be argued by the State,
Appellant's DNA profile is from a place where the
defendant should not have been, the DNA, by itself, can
confirm only that he was there at some time and cannot,
by itself, prove conclusively that he was there at the
time of the crime. What's more, the record on appeal
is devoid of any evidence upon which the jury could
have relied to even "corroborate the presence of
Appellant at the crime scene during the time of the
murder." For example, there were no fingerprints
belonging to Appellant found at the crime scene; there
were no eye-witness accounts placing Appellant Almaguer
at or near the crime scene at the time of the murders.
In fact, as Roberto Moreno testified, the two standers-
by who directed him to the crime scene upon his arrival
also provided him with a description of the assailant.
While that description was shared with those associated
with this investigation, no evidence was presented that
17
Appellant Almaguer fit the description given. RR15@3 0,
31, 48 There's no confession by Appellant inculpating
himself in these murders; there was no murder weapon
found that was linked to Appellant in any way. While
DNA analysis is a powerful tool in determining guilt or
innocence, usually there is other evidence that links
the defendant to the offense. We must remember that DNA
analysis is performed by humans and is not foolproof,
nor are the conclusions drawn from the analysis always
correct. State's witness and "expert" on DNA analysis
Alex Madrigal not only admitted during his testimony
that some DNA labs have been shut down for mistakes and
that people have been known to be released for mistakes
made regarding DNA testing but further acknowledged
that he could not say that the DNA on the items
submitted for testing in this case was that of
defendant. RR16@52,58 Only if all the prerequisites
for reliability—true match, correct source, and
presence at the crime scene in the applicable time
frame—are satisfied can society have confidence that
18
the DNA evidence is, in and of itself, strong enough to
support a conviction. Lastly, Alex Madrigal testified
that he has no DNA evidence that Appellant committed
these murders. RR16@51.
Accordingly, Appellant prays that the judgment be
reversed, and a judgment of acquittal entered. Burks v.
United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57
L. Ed. 2d 1, (1978) (holding if the record evidence is
legally insufficient under the Jackson rule, the
reviewing court must render a judgment of acquittal).
Tovar v. State, 165 S.W.3d 785 (Tex. App. San Antonio
2005).
ISSUE NUMBER TWO
The Trial Court Unconstitutionally Applied Rule 606(B)
Of The Texas Rules Of Evidence, Resulting In A
Violation Of Appellant Almaguer's Right To Trial By
Jury As Mandated By Article I, Section 15, Of The Texas
Constitution And Of His Right To A Fair And Impartial
Jury As Provided By The Sixth Amendment Of The United
States Constitution.
ISSUE NUMBER THREE
The Trial Court Erred By Denying Appellant A Post-
Conviction Inquiry Of Juror Maribel Martinez Regarding
Whether The Jury Deliberated On The Law Of Parties In
Reaching A Verdict Of GUILTY When The Jury Charge Did
19
Not Authorize A Conviction Of Capital Murder As A
Party. The Trial Court Reversibly Erred By Denying
Appellant Almaguer To Develop The Record To Show That
This Outside Influence Was Brought To Bear On The Jury
During Deliberations.
ISSUE NUMBER FOUR
The Trial Court Abused Its Discretion By Denying
Appellant's Motion For New Trial.
Appellant respectfully asks the reviewing Court to
consider Issues Number 2 through 4 together.
ARGUMENT AND AUTHORITIES
Motion for New Trial: Standard of Review
Appellant complains on appeal that his right to a
fair trial was violated when the jury in this case
reached a guilty verdict. Specifically, the jury
charges in this case instructed the jury that they
could convict if they were convinced beyond a
reasonable doubt that Appellant Almaguer was guilty of
Capital Murder as a primary actor. That is to say, the
jury was NOT instructed on the Law of Parties. CR119,
1261 Appellant however in his Motion for New Trial
alleges that the Jury engaged in misconduct as
1Appellant refers the Court only to Counts Two andThree here, as Count One was dismissed.
20
contemplated by Texas Appellate Rule 21.3.
Specifically, Appellant avers that the jury in fact
relied on the Law of Parties in reaching its verdict of
guilty on these respective counts. Said verdicts were
not authorized by the Charge of the Court. Further,
Appellant complains that the trial court erred by
refusing to allow post-verdict inquiry in order to
develop the record on appeal for review. CR172;
RR20@18-21
Appellate courts review a trial court's denial of a
motion for new trial under an abuse of discretion
standard, reversing it only if it was clearly erroneous
and arbitrary. .Riley v. State, 378 S.W.3d 453, 457
(Tex.Crim.App.2 012). The trial court's denial of the
motion is arbitrary if no reasonable view of the
evidence could support the ruling. Id. This standard
requires that the appellate court review the evidence
in the light most favorable, to the trial court's
ruling. Id. Appellate courts do not substitute their
own views for those of the trial court; instead, an
21
appellate court must affirm the ruling of the trial
court if it was within the zone of reasonable
disagreement. Id. "Where there are two permissible
views of the evidence, the factfinder's choice between
them cannot be clearly erroneous." Id.
The same deferential review applies to historical
facts. Id. The appellate court is free to disbelieve
the statements in an affidavit, especially one
unsupported by live testimony. Id. The Court of
Criminal Appeals cited the Rules of Civil Procedure in
holding that "affidavits from an interested party may
establish a fact for summary-judgment purposes only if
that evidence is 'clear, positive and direct, otherwise
credible, and free from contradictions and
inconsistencies, and could have been readily
controverted.' " Id. {quoting Charles v. State, 14 6
S.W.3d 204, 210 (Tex.Crim.App.2004), superseded in part
on other grounds by Tex.R.App. P. 21.8(b), as
recognized in State v. Herndon, 215 S.W.3d 901, 905 n.
5 (Tex.Crim.App.2007)); see Tex.R. Civ. P. 166a(c). It
22
further held, "The phrase 'could have been readily
controverted' means 'the testimony at issue is of a
nature which can be effectively countered by opposing
evidence.' " Id. By contrast, "[s] tatements in
affidavits of interested witnesses concerning their own
state of mind are 'uncontrovertible' because 'the
mental workings of an individual's mind are matters
about which adversaries have no knowledge or ready
means of confirming or controverting.' " Id. The trial
court has discretion to disregard statements in an
affidavit that do not meet this test. Id. ; Charles, 146
S.W.3d at 210.
The Indictment
Count Two of the indictment in this case alleged:
THE GRAND JURY, for the Count of Hidalgo, State of
Texas, duly selected, empaneled, sworn, charged and
organized as such at the January term A.D. 2 012 of the
13 9th Judicial District Court for said County, upon
their oaths present in and to said Court at said term
that Arturo Sanchez Almaguer, hereinafter styled
23
Defendant, on or about the 13th day of November, A.D.,
1988, and before the presentment of this indictment, in
Hidalgo County, Texas, did then and there intentionally
cause the death of an individual, namely Evan Squires,
by shooting him with a firearm, and the defendant was
then and there in the course of committing or
attempting to commit the offense of burglary of a
habitation of Evan Squires, who was the owner of said
habitation.
Count Three of the indictment in this case alleged:
THE GRAND JURY, for the Count of Hidalgo, State of
Texas, duly selected, empaneled, sworn, charged and
organized as such at the January term A.D. 2012 of the
13 9th Judicial District Court for said County, upon
their oaths present in and to said Court at said term
that Arturo Sanchez Almaguer, hereinafter styled
Defendant, on or about the 13th day of November, A.D.,
1988, and before the presentment of this indictment, in
Hidalgo County, Texas, did then and there intentionally
cause the death of an individual, namely Wilda Squires,
24
by shooting her with a firearm, and the defendant was
then and there in the course of committing or
attempting to commit the offense of burglary of a
habitation of Evan Squires, who was the owner of said
habitation. CR7-8
The Jury Charges
The application paragraphs of the court's charge to the
jury in count two provided:
Now, if you find from the evidence beyond a
reasonable doubt that on or about November 13,
1988, in Hidalgo County, Texas, the Defendant,
Arturo Sanchez Almaguer did then and there
intentionally cause the death of an individual,
namely, Evan Squires, by shooting him with a
firearm, and the defendant was then and there in
the course of committing or attempting to commit
the offense of burglary of a habitation of Evan
Squires, then you will find the Defendant guilty of
Capital Murder.
25
Unless you so find, from the evidence beyond a
reasonable doubt that the Defendant is Guilty of
Capital Murder, as defined herein, or if you have a
reasonable doubt thereof, you will acquit the
defendant of capital murder and say by your
verdict, Not Guilty. CR121
The application paragraphs of the court's charge to the
jury in count three provided:
Now, if you find from the evidence beyond a
reasonable doubt that on or about November 13,
1988, in Hidalgo County, Texas, the Defendant,
Arturo Sanchez Almaguer did then and there
intentionally cause the death of an individual,
namely, Wilda Squires, by shooting her with a
firearm, and the defendant was then and there in
the course of committing or attempting to commit
the offense of burglary of a habitation of Wilda
Squires, then you will find the Defendant Guilty of
Capital Murder.
26
Unless you so find, from the evidence beyond a
reasonable doubt that the Defendant is Guilty of
Capital Murder, as defined herein, or if you have a
reasonable doubt thereof, you will acquit the
defendant of capital murder and say by your
verdict, Not Guilty. CR12 8
In order for a jury to be authorized to convict a
defendant as a party, the" la'w of parties must be
included -in. the -application paragraph of 'the charge.
Walker v. %* state, 823 S.W.2d 247, 248
. (Tex.Crim.App.1991); Jones v. State, 815 S.W.2d 667,
669 (Tex.Crim.App. 1991) . The indictment in this cas.e
•&&
(k!\- .alleged appellant" committed these offenses as a primary
actor. Because the jury charge did not include an
instruction on the law of parties, the jury was
entitled to convict appellant only on the basis of his
own conduct. Walker, 823 S.W.2d at 248.
Texas Rule of Evidence 606(b)
Texas Rules of Evidence 606(b) provides as follows:
27
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any
matter or statement occurring during the jury's
deliberations, or to the effect of anything on any
juror's mind or emotions or mental processes, as
influencing any juror's assent to or dissent from
the verdict or indictment. Nor may a juror's
affidavit or any statement by a juror concerning
any matter about which the juror would be precluded
from testifying be admitted in evidence for any of
these purposes. However, a juror may testify: (1)
whether any outside influence was improperly
hi
(9&^pf\ brought to _kea.r-_upon any_juror; or (2) to rebut a
claim that the juror was not qualified to ser,ye.
Tex.R. Evid. 606(b).
Texas Rule of Appellate Procedure Rule 21.3
Texas Rule of Appellate Procedure Rule 21.3
provides that a Defendant must be granted a new
trial "when the jury has engaged in such misconduct
28
the defendant did not receive a fair and impartial
trial." Tex.R.App. P. 21.3(g).
Analysis
Appellant Almaguer insists that the trial court
erred by overruling his motion for new trial because
the jury engaged in jury misconduct resulting in the
denial of a fair and impartial trial. In his motion for
new trial, /Appellant urged that the jury received
7 "other evidence" that constituted an "outside
f
influence" that was brought to bear in that the jury
considered the application of the Law of Parties to his
case, contrary to the jury instructions in the charges
in counts two and three} Appellant Almaguer asserted in
his motion and in an affidavit attached to the motion
that jurors stated that there simply wasn't enough
evidence to convict him as the one who actually did the
killing. RR14@53-59
During voir dire proceedings, the State voir dire
on the principles associated with the Law of Parties.
The panel was given a bank robbery example involving
29
a shooter, a lookout and a getaway driver. During the
discussion, the jury panel was educated on the
principle of law known as the law of parties and
further advised that although only the gunman in the
example actually committed the hypothetical shooting,
that all three are equally responsible for the shooting
of the bank teller. RR14053-59 Now, it is unclear
yd^X/ whether the State requested a gartie,s chargel since the
record on appeal is silent with respect to a request
for such a charge. At the close of the evidence, the
parties agreed to exchange proposed charges and bring
any specific requests to the Court if they could not
agree. RR16@164-166 The next morning, the parties
announced they had received copies of the proposed
charges and neither party lodged any objections to the
charges. RR17@4 what is clear is that no charge on
the law of parties was incorporated into any of the
Court's charges, Counts 1, 2 or 3. CR113, 119, 126.
The State objected to Appellant's affidavit in
support of his motion for new trial. CR212 In the
30
affidavit, defense counsel discussed the deliberations
of the jurors. CR176-178 Although Appellant attempted
to present evidence to support his allegation of jury
misconduct during deliberations, the trial court denied
any post-conviction inquiry as such, thereby sustaining
the State's objection couched in Texas Rule of Evidence
606(b). RR20@18-21
The Texas Supreme Court has found that Texas Rule
606(b) violated neither federal due-process principles
nor the right to a fair trial under the Texas
Constitution. And several Texas courts of appeals have
upheld the Rule's constitutionality under provisions of
both the United States and Texas constitutions. But
Appellant urges this Court to review whether the rule
was applied unconstitutionally in this case. Appellant
contends that this application of Texas Rule of
Evidence 606(b) was unconstitutional in this case and
this unconstitutional application prevented Appellant
from establishing the jury misconduct that, under Rule
21.3(g), mandates a new trial.
31
Finally, Appellant contends that his allegation of
juror misconduct was further corroborated and
substantiated by a |jury question to the court during
its deliberations in the guilt/innocence phase. £The
jury's question to the trial court was a request to
clarify the Law of Parties. CR172-207; RR20O24; Defense
Motion for New Trial Exhibit 7
The State will surely argue at this point that
there is no "admissible" evidence of juror misconduct
such that would show that the jury convicted Appellant
Almaguer on any other principle other than what they
were authorized to do. Therein lies the quandary and
another complaint of Appellant Almaguer. Appellant
recognizes Rule 606(b) of the Texas Rules of evidence
provides that upon an inquiry into the validity of a
jury's verdict a juror may not testify as to any matter
or statement occurring during the jury's deliberations
or to the effect of anything on any juror's mind or
emotions or mental processes as influencing any juror's
assent to or dissent from the jury's verdict. TEX. R.
32
EVID. 606(b). The rule further provides that a juror's
affidavit concerning such matters would not be admitted
into evidence for any of those purposes. Id. However,
Appellant Almaguer also understands that the rule does
provide that a juror may testify as to whether any
outside influence was improperly brought to bear upon
any juror. Tex.R. Evid. 606(b).
Appellant urges this Court to consider the
discussion had during voir dire about the Law of
Parties as an "outside influence" as contemplated by
Texas Rule of Evidence 606(b) and Texas Rule of
Appellate Procedure 21.3 RR14053-59; Tex.R. Evid.
tr^K^J 606 (b) • TRAP 21.3(g) ^At the hearing on the motion for
new trial, defense counsel was prepared to rely on his
affidavit and call a witness, Juror Maribel Martinez,
to testify to the alleged misconduct. The State,
anticipating that the appellant would call jurors,
objected under Rule 606(b), which prohibits juror
testimony on matters concerning jury deliberations or
33
affecting a juror's decision-making. The trial court
sustained the objection.
Counsel also introduced into evidence the notes
from the jurors, which the motion for new trial and
defense counsel had purported to include comments
regarding "the jury's desire to hear a clarification
regarding the law of parties." Defense Motion for
Pretrial Exhibit 7. At the hearing, counsel explained
that the jurors' notes were quite clear that the jury
was deliberating on the law of parties when
unauthorized to do so by the Court's Charge, and
therefore offered the notes for purposes of the
appellate review. RR20@23-25
The trial court further allowed defense counsel to
make a proffer of evidence in support of his motion.
Defense counsel stated:
Your Honor, if Maribel Martinez had been called to
the witness stand, it is the defense's belief that
she would have testified accordingly, to wit: The
jury found the defendant guilty based on the law of
34
parties, and they wanted clarification on the law
of parties. There were a lot of unanswered
questions, and there was nothing to say that he
actually did it, and there was not enough evidence
to convict him of murder but he might have been
working with someone else. She also discussed
other concerns she had such as money being left and
the jewelry on the body being left. I also
believe, had she been allowed to testify here this
afternoon, Your Honor, that she would have
testified accordingly, and I offer that proffer for
purposes of appellate process. RR2 0@2 9-3 0
Appellant Almaguer asserts that an "outside
influence" was improperly brought to bear upon the
jurors, the Law of Parties discussed during voir dire.
The Court erred by denying Appellant a post-conviction
inquiry into whether the "outside influence" was in
fact brought to bear on the jury during deliberation
such that would violate Texas Rule of Appellate
Procedure section 21.3(g). Because the Court sustained
35
the State's objection couched in Texas Rule of Evidence
606(b), Appellant was not afforded an opportunity to
develop the record on appeal in order for this Court to
review whether in fact a violation of 21.3(g) occurred
such that would entitle Appellant a new trial based on
jury misconduct. Appellant asserts Rule 606(b) was
applied unconstitutionally in this case and operated to
violate the appellant's constitutional rights.
Appellant asserts that the trial court abused its
discretion in denying the appellant's motion for a new
trial.
PRAYER
Appellant Almaguer prays that this Court make
findings that the evidence in this case was
insufficient for a rational trier of fact to find
beyond a reasonable doubt that Appellant Almaguer
intended to cause the death of Evan and Wilda Squires.
Further, Appellant Almaguer prays this Court make
findings that the evidence in this case was
insufficient for rational trier of fact to find beyond
36
a reasonable doubt that Appellant Almaguer was present
at the time that the murders occurred. Further still,
Appellant Almaguer prays that this Court make findings
that the evidence in this case was insufficient for a
rational trier of fact to find beyond a reasonable
doubt that Appellant Almaguer actually caused the death
of Evan and Wilda Squires. Appellant prays this Court
make the aforementioned findings and render a judgment
of acquittal accordingly.
Subject to a ruling and without waiving the
foregoing, Appellant prays that this Court make
findings that the trial court erred in denying
Appellant a post-conviction inquiry into whether or not
the jury engaged in misconduct as contemplated by Texas
Rule of Appellate Procedure 21.3(g) when the trial
court unconstitutionally applied Texas Rule of Evidence
606(b). As such, Appellant further prays that the trial
court abused its discretion by denying Appellant
Almaguer's Motion for New Trial. In so finding,
37
Appellant requests this finding cause this matter to be
reversed and remanded for a new trial.
Respectfully submitted,
0. Rene Flores, P.C.
1308 S. 10th Ave
Edinburg, Texas 78539
Telephone No. (956) 383-9090
Facsimile Nq^—^95,61 383-9050
O. Re
State 24012637
ATTORNEY FOR APPELLANT
38
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of
the foregoing Appellate Brief was served in accordance
with the rules on the following persons:
Theodore "Ted" Hake
Assistant District Attorney
Hidalgo County District County Attorney
Appellate Division
Hidalgo County Courthouse
100 N. Closner
Edinburg, Texas 78539
By: Hand delivery
TDCJ #01918635
Arturo Sanchez Almaguer
Texas Department of Corrections
Connally Unit
3001 South Emily Drive
Beeville, Texas 78102 v"
0. Rene ^3
CERTIFICATE OF COMPLIANCE
Pursuant to TRAP 9.4 (3), I hereby certify this
Brief contains 7028 words. "7^S "\
O. Rene
39