Tony Escobar v. State ( 2015 )

ACCEPTED
01-14-00593-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/26/2015 7:39:24 PM
CHRISTOPHER PRINE
CLERK
Case No: 01-14-00593-CR
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE TEXAS COURT OF APPEALS 1/26/2015 7:39:24 PM
CHRISTOPHER A. PRINE
FIRST DISTRICT Clerk
HOUSTON, TEXAS
TONY ESCOBAR
Appellant
VS.
THE STATE OF TEXAS
Appellee
Appealed from the 338rn District Court
Harris County, Texas
Trial Court Cause Number: 1344348
APPELLANT'S BRIEF
WAYNE T. HILL
Texas Bar No: 09656300
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Tel: (713) 623-8312 Fax: (713) 626-0182
wthlaw@aol.com
Oral argument is not requested
IDENTITY OF PARTIES AND COUNSEL
Presiding Judge at Trial
Honorable A. Reagan Clark
Sitting by Assignment
338th Judicial District Court
1201 Franklin
Houston, Texas 77002
Attorneys for the State of Texas
Trial attorneys for State
Justin K. Wood
Julie Fletcher
Assistant District Attorneys
1201 Franklin
Houston, Texas 77002
On Appeal:
Alan Curry
Assistant District Attorney
1201 Franklin
Houston, Texas 77002
Attorneys for Appellant
Trial Attorneys for Appellant
Sam Adamo
Sam Adamo, Jr.
3200 Travis, 4th Floor
Houston, Texas 77006
On appeal:
Wayne T. Hill
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
The Appellant
Tony Escobar
1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 1
TABLE OF CONTENTS 11
ISSUES PRESENTED 111
INDEX OF AUTHORITIES lV
SUMMARY OF ARGUMENTS v
STATEMENT OF THE CASE Vl
RECORD CITATIONS Vl
STATEMENT REGARDING ORAL ARGUMENT Vl
STATEMENT OF FACTS IN THE CASE 1
POINT OF ERROR# 1 23
POINT OF ERROR #2 23
POINT OF ERROR #3 31
POINT OF ERROR #4 34
POINT OF ERROR #5 35
POINT OF ERROR #6 37
POINT OF ERROR #7 37
POINT OF ERROR #8 37
POINT OF ERROR #9 40
POINT OF ERROR #10 41
POINT OF ERROR #11 44
POINT OF ERROR#l2 45
PRAYER FOR RELIEF 46
CERTIFICATE OF WORD COUNT COMPLIANCE 47
CERTIFICATE OF SERVICE 47
11
ISSUES PRESENTED FOR REVIEW
POINT OF ERROR NUMBER ONE
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE
JURY'S VERDICT FINDING APPELLANT GUILTY OF CAPITAL MURDER
BEYOND A REASONABLE DOUBT WHICH REQUIRES THE ENTRY OF A
JUDGMENT OF ACQUITTAL (R-IV-VI)
POINT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR
INSTRUCTED VERDICT OF NOT GUILTY AT THE CLOSE OF THE STATE'S
CASE (R-VI-142,143)
POINT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED WHEN IT ADMITTED THE 911 TAPE INTO
EVIDENCE OVER APPELLANT'S OBJECTION (R-11-4,5) (R-IV-8,44)
POINT OF ERROR NUMBER FOUR
THE TRIAL COURT ERRED WHEN IT ADMITTED NUMEROUS AUTOPSY
PHOTOGRAPHS INTO EVIDENCE OVER APPELLANT'S OBJECTIONS (R-VI-
70-80; 82) (SX # 79,80,81,82,83,84,85,86,87,88,89,90,91,92,93)
POINT OF ERROR NUMBER FIVE
THE TRIAL COURT ERRED WHEN IT LIMITED APPELLANT'S CROSS
EXAMINATION OF SERGEANT CLOPTON REGARDING INFLUENCES AND
MOTIVES TO FABRICATE A STORY (R-V-12)
POINT OF ERROR NUMBER SIX
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
ESTABLISH WHAT QUESTIONS SERGEANT CLOPTON ASKED AMBER
THORNTONDURINGHERINTERVIEWWITHHIMONDECEMBER28,2011(R-
IV-278,279)(R-V-18)
POINT OF ERROR NUMBER SEVEN
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
INTRODUCE AMBER THORNTON'S STATEMENT TO SERGEANT CLOPTON
IN EVIDENCE PURSUANT TO RULE 801(E)(l)(E) OF THE TEXAS RULES OF
EVIDENCE (R-IV-278,279)(R-V-12-17)
POINT OF ERROR NUMBER EIGHT
THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT AMBER
THORNTON'S STATEMENT TO SERGEANT CLOPTON UNDER THE RULE OF
OPTIONAL COMPLETENESS. (R-V-135-144)
111
POINT OF ERROR NUMBER NINE
THE TRIAL COURT ERRED WHEN IT PREVENTED APPELLANT FROM CROSS
EXAMINING AMBER THORNTON ABOUT HER HABIT AND ROUTINE OF
LYING TO LAW ENFORCEMENT TO AVOID RESPONSIBILITY FOR HER
ACTIONS. (R-V-159.160,193,194)
POINT OF ERROR NUMBER TEN
THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUESTED
JURY INSTRUCTION ON NECESSITY (R-VII-4) (SX # 59 & 60)
POINT OF ERROR NUMBER ELEVEN
THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUEST FOR
A JURY INSTRUCTION ON THE LESSER OFFENSE OF THEFT (R-VII-5,6)
POINT OF ERROR NUMBER TWELVE
THE TRIAL COURT ERRED WHEN IT COMMENTED ON THE WEIGHT OF THE
EVIDENCE IN THE INSTRUCTIONS GIVEN TO THE JURY CONCERNING THE
LAW OF CONSPIRACY (R-VI-4,5) (CR-1-240)
INDEX OF AUTHORITIES
CONSTITUTIONS
U.S. Constitution Fifth Amendment 27
U.S. Constitution Sixth Amendment 37
U.S. Constitution Fourteenth Amendment 25
STATUTES
Texas Penal Code 6.01, 7.01 and 7.02 27,28,29
Texas Penal Code 9.22 42,43
Texas Penal Code 15.02 46
Texas Penal Code 19.03(2) 24
Texas Penal Code 31.03 44
Texas Code of Criminal Procedure -Article 36.15 42
Texas Code of Criminal Procedure -Article 38.05 46
Texas Code of Criminal Procedure - Article 38.14 30
Texas Code of Criminal Procedure -Article 44.25 27
Texas Rules of Evidence 107 38,39
Texas Rules of Evidence 401 32
Texas Rules of Evidence 402 34
Texas Rules of Evidence 403 32,34
Texas Rules of Evidence 404(b) 41
Texas Rules of Evidence 406 40
Texas Rules of Evidence 701 36
Texas Rules of Evidence 702 36
Texas Rules of Evidence 801 38,39
Texas Rules of Appellate Procedure - 9 .4 47
Texas Rules of Appellate Procedure - 43.2© 27
CASE LAW
Bachus v. State 46
Bignall v. State 44
Booth v. State 42
Brooks v. State 25
Burks v. U.S. 31
Castillo v. State 30
Clewis v. State 25
Comet v. State 43
Dowthitt v. State 30
Ex Parte Thompson 29
Flores v. State 35
Garza v. State 27
Gollihar v. State 25
Greene v. Massey 31
Guerrero v. State 41
lV
Hightower v. State 25
Hill v. State 29
Holiday v. State 44,45
Homes v. South Carolina 40
Hudson v. State 27
Hughes v. State 29
In Re: Winship 25
Jackson v. Virginia 25, 26, 31
Jones v. State 46
Jordan v. State 37
Juarez v. State 43
King v. State 39
Laster v. State 26
Mccullen v. State 25
Meadow v. State 39
Montgomery v. State 33
Morrison v. State 28
Mullaney v. Wilbur 25
Narvaiz v. State 26
Patrick v. State 28
Perry v. State 34
Rachel v. State 32
Ransom v. State 28
Rousseau v. State 44
Walters v. State 39,40
Weatherred v. State 36
Reese v. State 35
Stobaugh v. State 31
Tillman v. State 37
USv. Maceo 37
Valdez v. State 28
Webb v. State 33
Winn v. State 30
SUMMARY OF ARGUMENT
POINT OF ERROR #1
Where the evidence is insufficient as a matter of law to support a jury's verdict under any
theory of law, the Appellate Court must reverse and enter a judgment of acquittal.
POINT OF ERROR #2
Where the State's evidence does not meet the legal standard to overcome an instructed
verdict, the Appellate Court must reverse and enter a judgment of acquittal.
POINT OF ERROR #3
Where evidence from a 911 tape is irrelevant to any issue in the case and is highly prejudicial,
it should be excluded as evidence at trial.
POINT OF ERROR #4
Where autopsy photographs are highly prejudicial and gruesome and there is no issue
regarding the cause of death, the evidence should be excluded at trial.
POINT OF ERROR #5
Appellant is entitled to full and complete cross-examination concerning a witness' motive to
fabricate testimony.
POINT OF ERROR #6
Appellant is entitled to present inconsistent statements to impeach the credibility ofwitnesses.
POINT OF ERROR #7
Appellant is entitled to present substantive evidence of a co-conspirator's statement pursuant
to Rule 801 of the Rules of Evidence.
POINT OF ERROR #8
Appellant is entitled to present the full statement of a witness during cross-examination under
the Rule of Optional Completeness.
POINT OF ERROR #9
Appellant is entitled to present evidence of habit and routine of a State's witness where it is
critical to a credibility evaluation and determination.
POINT OF ERROR #10
Where evidence is raised that Appellant acted in accordance with Texas Penal Code, Section
9.22, he is entitled to a jury instruction on the defense of necessity.
v
POINT OF ERROR #11
Where evidence is raised that Appellant is only guilty of the offense of theft, he is entitled to
a jury instruction on the lesser offense of theft.
POINT OF ERROR #12
The Trial Court is prohibitive from commenting on the weight of the evidence when
instructing the jury on the law of the case.
STATEMENT OF THE CASE
Appellant was indicted for the offense of capital murder. (CR-I-8) The indictment
filed in this matter alleged that on or about December 20, 2011, in Harris County, Texas,
Appellant did then and there unlawfully, while in the course of committing and attempting to
commit the robbery of Russell Lopez, intentionally cause the death of Russell Lopez by
striking Russell Lopez with a deadly weapon, namely a hammer. A second paragraph of the
indictment alleged that on December 20, 2011, in Harris County, Texas, Appellant did then
and there unlawfully, while in the course of committing and attempting to commit the robbery
of Russell Lopez, intentionally cause the death of Russell Lopez by stabbing Russell Lopez
with a deadly weapon, namely a sword. (CR-I-8) A jury found Appellant guilty of capital
murder as charged in the indictment. (CR-I-258) Appellant's punishment was automatically
fixed at life in the Institutional Division of the Texas Department of Criminal Justice. (CR-I-
261) Appellant filed a Motion for New Trial on June 10, 2014. (CR-I-265) Appellant gave
Notice of Appeal on July 3, 2014. (CR-I-271) The Trial Court's Certification ofDefendant's
Right of Appeal was signed on July 7, 2014. (CR-I-272)
RECORD DESIGNATION
Record citations are designated:
Clerk's Record (CR-vol-page)
Reporter's Record (R-vol-page)
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested
Vl
STATEMENTS OF FACTS IN THE CASE
Amanda Shonte Made worked with the Complainant's wife at My Fit Foods. On the
evening of December 20, 2011, she and Marie Lopez (the Complainant's wife) closed the My
Fit Foods store and went to the Complainant's home located on Plantain Drive. (R-IV-39)
Upon arriving, Made noticed that the Complainant's black Tahoe was not in the driveway.
When Made and Marie Lopez entered the home, they found the Complainant (Russell Lopez)
lying on the floor in the entrance of the bedroom area. (R-IV-41) Made described the
Complainant's face as being distorted to the point that she could not recognize him. His face
was bloody and swollen. (R-IV-43)
Made acknowledged that she suspected that Complainant was involved in the drug
business involving marihuana. (R-IV-49) The Complainant had confided in Made that he had
previous troubles with the law involving marihuana. (R-IV-49) Made noted that the last time
the Complainant was employed was approximately six months prior to this date. (R-IV-58)
Made agreed that she would not condone drug dealing out of a home because it could
endanger children. (R-IV-58)
Dawn Disneau with the Westlake Fire Department declared the Complainant dead on
the scene. (R-IV-70) She observed that the Complainant had a sword laying across his left
chest and left arm. (R-IV-72)
Artur Kuk with the Harris County Sheriffs Department responded to the Plantain
address and observed another officer carrying two children out through a window. (R-IV-80)
The entire house was ransacked. (R-IV-84) Kuk indicated that he learned the children had
been tied up with clothing and the Complainant's Tahoe had been stolen. (R-IV-89)
Maurice Carpenter, a crime scene investigator with the Harris County Sheriffs
1
Department, noted there was no signs of forced entry at the Plantain address. (R-IV-102)
Carpenter described the house as ransacked and noted that there were apparent blood stains
throughout most of the areas of the house. (R-IV-103) He noted that there was a large
concentration of blood near the pantry door and the bedroom door. (R-IV-104) The
Complainant's body was located in the master bedroom. The area around the Complainant
was in disarray. (R-IV-105) Carpenter said it appeared that the body had been moved from
an area near the dining room entry area into the bedroom area. (R-IV-106) Carpenter noted
the appearance of numerous wounds on the Complainant's face and neck. (R-IV-106)
Carpenter also noted that there were shoe prints throughout the house. (R-IV-110) He also
noted the appearance of what appeared to be a gouge marknear the pantry room door. (R-IV-
126) Carpenter also observed a scabbard (sheath) that holds the sword, laying next to the
Complainant. (R-IV-130) He described the sword as an ornamental or collector type sword.
(R-IV-131) Blood evidence was found throughout the location including on the ceiling and
in the light fixture in the bedroom. (R-IV-132) When Carpenter searched in the bathroom
area, he located a box located inside a hollowed-out area on the bathroom cabinet. Inside the
box, Carpenter found what appeared to be jars ofMarihuana. (R-IV-135) The crime scene
was processed for latent fingerprints with negative results. (R-IV-139-141) The scene was
also processed for DNA evidence. (R-IV-141) Carpenter also photographed various shoe
prints within the house. (R-IV-146, 147) Carpenter recovered knotted clothing from the top
bunk bed in the children's room. (R-IV-154) On December 23, 2011, Carpenter became
aware of the fact that a vehicle belonging to the Complainant was found. (R-IV-155)
Carpenter processed the vehicle for fingerprints and DNA. (R-IV-156) The vehicle was found
partially submerged in water. The vehicle that was outside the water had been burned. (R-IV-
2
157) A cell phone, shotgun shell, and a lighter were recovered inside. These items were
tested for DNA and processed for fingerprints. (R-IV-157)
During cross examination, Carpenter opined that the beating with a blunt force object
appeared to have occurred in front of the pantry in the kitchen area. (R-IV-160) He was
unable to tell where the beating actually began. (R-IV-161) Although blood was found in the
couch area, Carpenter indicated that he did not believe the beating took place there. (R-IV-
162) He indicated that the blood on the couch could have been stains transferred from
someone having blood on their hands or other surface onto the couch. He agreed that may not
have been how the blood got there. (R-IV-162,163) While Carpenter indicated his opinion
would not be that the dragging occurred from the couch area past the pantry and into the
bedroom area, he admitted he could not positively state that it did not happen that way. (R-IV-
164) He said that from the drag marks it was possible that someone had taken the
Complainant by his feet and dragged him into the bedroom, and that it could have been done
by one person. (R-IV-164) Carpenter found a claw hammer at the scene which was tested for
blood with negative results. (R-IV-165) Carpenter described the sword having a fabric
wrapped around it, but he was unable to state whether DNA would be more likely to have
been found on that surface. (R-IV-166) He also acknowledged that if DNA was found on the
scabbard (the sheath) that would indicate that someone handled the scabbard. (R-IV-166) He
searched the home for fingerprints and found none belonging to Appellant. (R-IV-167).
When asked about the gouge mark on the pantry door, Carpenter was unable to state whether
it was caused by a sword, a hammer, or some other object. (R-IV-168) Carpenter opined that
the area of most trauma occurred in the pantry area, but he was unable to state whether the
Complainant had been clubbed or hit over the head at the couch area. (R-IV-172,176)
3
Marie Lopez, the Complainant's wife, testified she was working at My Fit Foods in
December, 2011. (R-IV-185) Her husband was doing some remodeling work at his uncle's
home, but he was also receiving unemployment. She indicated that he predominately took
care oftheir kids while she worked. (R-IV-186, 187) She acknowledged that her husband used
Marihuana. Leading up to the date of December 20, 2011, Marie Lopez indicated that she
became suspicious of one ofthe individuals her husband was hanging out with (not involving
any of the defendants in this case). (R-IV-191) At the time of her husband's death, she had
no idea that her husband was dealing drugs out of their home. (R-IV-191) Marie Lopez
indicated that had she known, she would not have been okay with his drug dealing. (R-IV-
191) She was unaware of a secret compartment underneath the bathroom counter in which
her husband stored dope. (R-IV-192) Marie Lopez indicated she did not know who Appellant
was. She also did not know Joseph Facundo. The only individual she knew was Amber
Thornton. (R-IV-193) She described Amber as just somebody that she had met. (R-IV-194)
On December 20, 2011, the Complainant was to watch the children while Marie Lopez was
at work. (R-IV-196, 197) Lopez was unable to reach her husband by phone throughout the
day. (R-IV-198) When she and the Complainant's cousin (Shonte) arrived at the home, Lopez
noted that their black Chevy Tahoe SUV was not in the driveway- this concerned her. (R-IV-
200) Upon entering her home, Lopez noticed that chairs were turned over and Julianne was
sitting on the couch by herself. Her husband Russell was laying on the floor in the bedroom
with blood everywhere. (R-IV-202) After attempting CPR on her husband, and not getting
a response, Lopez walked into the bedroom and found the children with their hands tied
behind their back. (R-IV-204) Lopez took the children out through a window so as not to
disrupt the scene. (R-IV-206) Lopez identified a photograph of a safe taken from their home
4
and indicated that other property, including a TV, a game system, a jewelry box, and the SUV
were all missing. (R-IV-209) ·
During cross examination, Lopez acknowledged that she only made $12.00 per hour
working at My Fit Foods, while her husband was on unemployment. (R-IV-211,212) After
detailing some ofher expenses, including a $700 payment on the Tahoe SUV, Lopez indicated
that she would be surprised to have heard that her husband had $3,000 to $4,000 cash on hand
on the night of his death. (R-IV-213) Lopez admitted that when she spoke with Sergeant
Miller she told him that she was surprised. She never saw the drugs and had a huge issue
with that. She also told Miller that she had been talking about leaving the Complainant
because ofthe drug issue. (R-IV-214) In her interview with Sergeant Miller, Lopez never told
him that her husband was working for his uncle doing a remodeling job. The incident that she
was concerned about involving another individual and her husband turned out to be where a
man gave Lopez money for a watch. Lopez told her husband that he was getting involved
with the wrong people. She described the man as scary, having a tattoo on his neck. (R-IV-
215) She gave Miller the names of several individuals that she found to be questionable,
including Mike T, Blake and Amber. (R-IV-215, 216) Lopez had not made the connection
between those people and her husband's drug use or drug sales. (R-IV-216) Additionally,
Lopez questioned whether or not an individual known as Jafar could have been involved in
something like murdering her husband. (R-IV-218,219) Despite her concerns about her
husband's drug use, and drug sales, Lopez still maintained that she did not believe that her
husband was putting the kids in harms-way because of it. (R-IV-219)
Craig Clopton with the Harris County Sheriffs Department Homicide Division
testified that he was assigned this case. (R-IV-223) After describing the initial work at the
5
scene on Plantain Drive, Clopton noted that a 2007 Chevy Tahoe was missing. (R-IV-226)
As part of his investigation, Clopton made arrangements for two of the children who were
found atthe crime scene to be taken to the Children's Assessment Center for interviews. (R-
IV-230) The children eliminated possible suspects that Clopton was looking into at the time.
(R-IV-233) Clopton's opinion was that robbery was the motive behind the killing. (R-IV-233)
Additional names were developed in his investigation, including Amber Thornton and Joseph
Facundo. (R-IV-236) On December 28, 2011, Clopton interviewed Amber Thornton when
she voluntarily came to the homicide department. (R-IV-23 7) Clopton described the interview
with Thornton as lengthy. Clopton indicated that an additional person (the Appellant) was
developed and that his focus sharpened on Joseph Facundo. (R-IV-237) After the statement
of Amber Thornton on December 28, 2011, Clopton made his primary suspects as Thornton,
Joseph Facundo, and Tony Escobar. (R-IV-238) Clopton put together a photo spread of this
various individuals and presented them to Caden Lopez, one of the children. (R-IV-240)
Caden identified the photographs of each of the individuals. (R-IV-241-243) Clopton then
took this information to the District Attorney's Office where he obtained capital murder
charges on all three of the suspects. (R-IV-244) Thornton was arrested when she was
walking down a street. (R-IV-246) Clopton, along with his partner Miller, went to Laredo,
Texas, where Joseph Facundo and Tony Escobar were in custody at the Webb County Jail. (R-
IV-248) At the Webb County Jail, Clopton took a statement from Appellant as well as DNA
samples. (R-IV-249) After his arrival in Houston from Laredo, Appellant initiated a
conversation with Clopton. On January 4, 2012, Clopton received a tip and went and spoke
with an individual named David Tillman. (R-IV-253) Clopton met with Tillman who
provided a small safe. (R-IV-254) Clopton also explained that he made efforts to locate the
6
murder weapon or weapons in the case. He indicated that Escobar had told him that the
hammer that was used to kill Russell Lopez was thrown in the water not far from where the
Complainant's Chevy Tahoe was recovered. (R-IV-255, 256) This hammer was never
recovered by the Marine Division divers went looking for it. (R-IV-256, 257) Clopton then
went to Appellant's house and met with his mother who provided a cell phone to Clopton. (R-
IV-257)
During cross examination, Clopton was asked how long it took him to determine that
it was a robbery home invasion after observing the scene. When pressed for a time line,
Clopton refused to provide any specifics. Clopton stated that the could not tell exactly when
he formed the opinion, but he would acknowledge that it was not more than a day later. (R-IV-
263) When asked if it was within 24 hours of the initiation of his investigation, Clopton
responded by saying, "Well, you 're trying to pin me down on an exact time frame, which I'm
not going to adhere to." (R-IV-263) When asked to acknowledge that he was investigating
capital murder, Clopton merely said, "At some point, yes." (R-IV-264) Clopton did
acknowledge that he was able to determine that this was a drug related robbery murder. (R-
IV-264) When asked if that wouldn't have been within the first 24 hours, Clopton again
refused to answer directly by stating, "J just can 't - -, you 're trying to box me in on that. I
don't know at which point I made the determination it was robbery or drug related." (R-IV-
265) He went on to state, "You keep going back to the same time frame. I can't give you a
time frame." (R-IV-265) Clopton failed to investigate any burglaries within a five mile radius
of Russell Lopez's house as part of his investigation. (R-IV-267) When asked whether, in his
experience as a detective, Clopton found that drug dealers would buy stolen property from
customers who were committing burglaries and trade the property for drugs or money,
7
Clopton acknowledged that was true. (R-IV-267, 268) Clopton also agreed that dealing drugs
out of a person's house is dangerous, not only to the individual but to their family members
in the house. (R-IV-270)
When Clopton was questioned about interrogation techniques, including the Reid
technique developed by a former police officer in Chicago, Clopton acknowledged being
familiar with it. (R-IV-271) Clopton indicated that once he was in the homicide division he
went through the Reid technique process. (R-IV-271) Clopton was reluctant to acknowledge
his use of the Reid method or how it actually played a role in this case. Clopton denied that
once Amber Thornton began telling her story to him that his interview with her became an
interrogation. (R-IV-273,27 4) Although Clopton acknowledged having reviewed Thornton's
statement prior to testifying in court, he was unable to remember whether he had floated his
theme of how the murder took place to Amber Thornton when he was interrogating her. (R-
IV-274) Clopton acknowledged that as part of his interrogation technique he was allowed to
lie to an individual. He also indicated another technique when interviewing a suspect is to
offer them a way out. (R-IV-275) When specifically asked whether, when he was
interviewing Thornton, he give her a way out, or did he direct her to make incriminating
statements in the case against Joseph Facundo and Tony Escobar, Clopton responded by
saying, "Did I do what?" (R-IV-27 5) When the question was repeated to him, Clopton merely
said, "J can't say I agree with that." (R-IV-276) When Appellant's counsel continued to
press Clopton asking him "Did you continually on more than one occasion - - on this occasion
during this interview with her, this interrogation, did you continue to float the theme to her
that this was a robbery murder and that it had been planned before going over there."
Clopton's response was, "!twas an interview." (R-IV-276) When questioned whether it was
8
robbery murder that had been planned before going to the Lopez house, Clopton again refused
to give a direct answer, merely stating, "!twas an interview. !twas not an interrogation." (R-
IV-276) Once again, when counsel asked, "Did you float that theme to her." Clopton
responded, "You asked me that. I don't know if I floated that to her." (R-IV-277) When
Clopton was asked whether he recorded his interrogation of Thornton, he indicated that he did
an audio recording and that he intentionally chose not to do a video. He then attempted to
explain that the Harris County Sheriffs Office was having problems with their video
equipment. (R-V-7) He acknowledged having listened to the recording after it was taken on
December 28, 2011. (R-V-8) Clopton finally admitted that after Caden Lopez made his
identifications, it was safe to say that Clopton' s theory was that it was a planned robbery that
resulted in a murder.(R-V-9) He qualified his response by stating that his theory was that the
Complainant was robbed and that it was planned. Clopton indicated that who exactly was
involved in it, and what exactly everybody's role was, he did not know. (R-V-9) He further
admitted that he had no direct knowledge that there was a conspiracy or a plan to rob Lopez.
(R-V-10) Clopton was asked whether he was aware of what Thornton's story was now after
accepting a plea bargain deal, to which he said, "J don't know what the parameters ofthat is. "
(R-V-10) Clopton did acknowledge that he considered Thornton a co-conspirator acting with
Joseph Facundo and Tony Escobar in the commission of the crime that resulted in the death
of Mr. Lopez. (R-V-12) Clopton determined that Frances Tillman had opened the safe which
belonged to Lopez and that Mr. Tillman knew Amber Thornton and Joseph Facundo. (R-V-
19) Clopton was aware that an individual in a white Honda brought the safe to Tillman.
Clopton never omitted the Honda or the driver of that vehicle. (R-V-20) When Clopton was
asked whether he spoke with an individual named James Wayland aka "Blinkie," he again
9
became evasive. When asked whether he had taken a statement from Blinkie, Clopton said,
"!twas a statement. I didn't take a statement from Blinkie." (R-V-21) When asked how he
would categorize the conversation he had with Blinkie, he responded, "I don't know what you
mean how did I categorize it." (R-V-21) Clopton acknowledge that he surreptitiously
recorded "the conversation" and then differentiated a conversation from the statement because
he didn't tell the individual that he was "taking his statement from him." (R-V-22) When
Clopton went to Laredo to question Tony Escobar, he indicated that he took a recorded
statement. (R-V-23) Clopton once again indicated that he decided to take an audio recorded
statement. When asked whether the Webb County video equipment was broken, Clopton
responded, "I have no idea. I'm not required to video. It is strictly up to my option, I prefer
to audio it. "(R-V-24) Clopton did not ask the Webb County officials whether they had video
equipment. Interestingly, when Clopton was asked whether he would agree as a homicide
investigator that if you have a video of someone's statement, whether it was Amber
Thornton's or Tony Escobar's, or anyone, that it eliminates issues with whether or not the
statement was coerced or intimated or involuntary. Clopton responded, "No." And when
again asked "Wouldn't you agree with that?" Clopton again responded, "No." (R-V-25)
When asked whether it eliminates someone claiming it was involuntary, because you could
see them on the screen and see them on TV, Clopton stated, "I disagree with that." (R-V-
25,26) In an interesting revelation, Clopton went on to state "And that's through my
experience. I have had individuals say that we were on video, that I took them out of the
room and twisted their head and brought them back in and made them say things. So it
doesn't eliminate that." (R-V-26) Although Appellant voluntarily gave DNA swabs, Clopton
was not able to get voluntary swabs from Amber Thornton or Joseph Facundo. (R-V-26) On
10
January 3, 2012, Clopton got word that Appellant wanted to speak with him. When Clopton
went to speak with Appellant, Clopton recorded his statement on audio. When Clopton was
asked whether he inquired whether or not the jail at the Harris County Jail had video
equipment, he indicated that he did not inquire about that. (R-V-27) Clopton never
determined who the women were that drove Appellant and Facundo to the border. (R-V-29)
Once again, when Clopton was asked about the "statement" he took from Mr. Wayland aka
"Blinkie," Clopton again argued that it wasn't a statement but it was a report. (R-V-29) He
did, however, acknowledge that it was a conversation connected to his investigation of the
murder ofRussell Lopez. (R-V-30) Clopton' s investigation never determined what happened
to the jewelry which was taken from Russell Lopez's home on the night he was murdered. (R-
V-31)
Raymond Campos, a crime scene investigator with the Harris County Sheriffs
Department, was called out to recover a vehicle that was involved in the investigation. (R-V-
40) The vehicle was found partially submerged in a body of water. (R-V-43) The portion
of that vehicle that was out of the water was totally burned. (R-V-44) Campos was able to
confirm that the vehicle belonged to Russell Lopez. (R-V-45) Campos noted that the keys to
the vehicle were still in the ignition when it was recovered. (R-V-47) Among the items
recovered near the scene of the vehicle were a disposable lighter, an Academy sports bag, as
well as a charcoal lighter bottle. (R-V-52)
Amber Thornton who grew up in the Katy area, testified that she was 24 years of age
and had a five year old son. (R-V-55,56) After admitting that she had been convicted of theft
and sentenced to one year in the Harris County jail, Thornton admitted that she had been
involved in drugs, including cocaine, marihuana and pills such as Lorcet and Lortab. (R-V-59)
11
I
I
When testifying, Thornton was housed in the Harris County Jail on medication for anxiety and
depression. Thornton acknowledged that she was charged with capital murder, along with
Appellant and Joseph Facundo. (R-V-60) Thornton also acknowledged that she learned she
could be facing either the death penalty or life without parole. After her arrest, Thornton was
appointed a lawyer (Charles Brown). (R-V-60) At some point after being charged with capital
murder, Thornton expressed an interest in wanting to cooperate, possibly testify against either
of her co-defendants. (R-V-61) Thornton told the jury that she had pled guilty to the reduced
charge of aggravated robbery. She claimed she had not been promised anything for her
cooperation. (R-V-63) Thornton testified that she was eligible for probation. (R-V-64) She
testified that she, Joseph Facundo and Appellant, would do drugs together. (R-V-66)
Thornton explained that in December of201 l, she was 22 years of age, Joseph Facundo was
18 and Appellant was 17. (R-V-67) She identified Blake Kramer as her boyfriend in
December of 2011. (R-V-67) In December of 2011, Blake was in jail on a burglary of a
habitation charge. (R-V-68) Thornton indicated that she knew Russell Lopez (the
Complainant) because he was the neighborhood drug dealer. (R-V-69) She had known Lopez
for 5 or 6 months prior to his death. (R-V-69) Thornton admitted that the drugs purchased
from Lopez included cocaine, pills and marihuana. She also indicated that she observed
Facundo buy drugs from Lopez. (R-V-70) Thornton never saw Appellant buy any drugs from
Russell Lopez. (R-V-70) She indicated that as far as she knew Russell Lopez was Tony
Escobar's connection for drugs. (R-V-70) Thornton admitted that on occasion she would go
to Russell Lopez's house for drugs. (R-V-71) Thornton described a vacant house near where
her parents lived which they called "Vaco" where they would hang out and do drugs. (R-V-
73) She testified that she would go to the vacant house along with Joseph Facundo and
12
Appellant. (R-V-76) Thornton described her relationship with Joseph Facundo as pretty close.
(R-V-78) None of the three (Thornton, Facundo, or Escobar) had a car. (R-V-79,80)
Thornton reconfirmed that Russell Lopez's relationship with Tony Escobar was not really that
much. Thornton stated that Lopez had a closer relationship with her and Joseph Facundo.(R-
V-82) Thornton explained that Joseph Facundo was mad at Russell Lopez over a gun that was
missing. (R-V-83) On December 20, 2011, Thornton explained that after getting off work
from Signature Dry Cleaners she went home, sat outside and smoke legal weed (Kush). She
indicated that at the time her son was in day care. (R-V-83, 84) After getting her son from day
care at around 8:00 p.m., Thornton went to the "Vaco" to get high. (R-V-84,85) Appellant
and Joseph Facundo were both at the house when Thornton arrived and they smoked
marihuana while Thornton smoked her "Kush." (R-V-85) She stated that she smoked her
"Kush" and not real marihuana because she was on probation. (R-V-86) During the 20 or 30
minutes that they stayed in the vacant house smoking, Thornton said that Joseph Facundo
came up with a plan to rob Russell Lopez to get money and drugs. (R-V-86) Thornton stated
that the plan had been discussed on a previous date by Facundo. She explained that the plan
was for them to go over to Lopez's house to sell Lopez a laptop for money that Thornton
owed to Lopez. (R-V-87) She was to sell the laptop to Lopez and get three 20's of coke,
which meant three bags of coke, each valued at $20.00. (R-V-87) Thornton explained that
the laptop belonged to Appellant and that it was at the vacant house when she arrived. (R-V-
88) Thornton explained that the "plan" was for them to go over to Lopez's house and then
Facundo was going to hit Lopez over the head with a hammer and Appellant was going to tie
up the kids. The three were going to steal all of Lopez's stuff and load it in the Tahoe and
leave. (R-V-88) Thornton indicated that she did not know whether kids would actually be at
13
the house. She indicated that the hammer came from Facundo and that she saw it while they
were inside the vacant house. (R"'.'V"'.'89) Thornton claimed Facundo kept the hammer in his
pocket. (R-V-90) Thornton further explained that Facundo was upset and mad with Lopez
because he believed that Lopez had stolen a gun from him. (R-V-90,91) Thornton stated that
when she entered the house she observed Lopez sitting in a chair in the dining room feeding
his baby. (R-V-93) When they entered, they handed the laptop to Lopez and then put it on the
table and they grabbed three 20's of coke. (R-V-94) Thornton explained thatJ oseph Facundo
was standing behind Lopez as was Tony Escobar. She stated that when Lopez took the laptop,
Tony Escobar took the bags of cocaine. (R-V-97 ,98) Thornton then said that Facundo got the
hammer out and hit Lopez inthe back of the head over and over. (R-V-98) She stated that
Lopez then fell to the ground right next to the chair. (R-V-98) She described that the baby
was sitting in the high chair. Facundo told her to get the baby and to make the baby stop
crying. At this time, Appellant was in the room with the other children. (R-V-99) Thornton
said that at the very beginning when Facundo was striking Lopez, Appellant had already left
the dining room and went into the other back room. (R-V-99) She described Appellant being
gone for 3 to 4 minutes. (R-V-100) Thornton then described looking through cabinets,
opening drawers and finding jewelry and a gun and that they took those items and piled them
up. (R-V-101) Thornton explained that the whole time that Facundo was hitting Lopez with
the hammer, it was at one location. (R-V-102) Thornton explained that they found the car
keys and that Facundo and Appellant placed the items into the Tahoe. (R-V-102) She
explained that both Facundo and Appellant drug Lopez's body into his room. (R-V-103)
Thornton said that Facundo got a sword and was about to cut Lopez's throat or stab him with
it when he told her not to look. (R-V-104) She stated that Facundo and Appellant were both
14
in Russell's room at that time. (R-V-104) Thornton did not see what happened inside the
bedroom. She explained that Joseph Facundo was the one who was responsible for using the
sword on Russell Lopez because he was holding it in his hand. (R-V-105) Facundo drove the
Tahoe and they went back to the vacant house where they unloaded the items taken from
Lopez's house. (R-V-107) They placed the items in the attic of the vacant house. (R-V-107)
Thornton acknowledged that she had blood on her feet, shoes and clothing. She explained
that she had to go home by 10:00 p.m. because she had a curfew placed on her by her mother
and father. (R-V-109) Thornton then explained that she took her clothing and placed them
in a bag and threw them away. (R-V-109) Thornton explained that the Tahoe was taken to
an area called "the Cliffs" where they would swim, have bonfires and smoke weed and party.
(R-V-110) She learned about what happened to the Tahoe when Joseph Facundo explained
things to her later. (R-V-110) She did not accompany Facundo to the Cliffs area. (R-V-110)
Thornton was still involved in the situation and planned to sell jewelry and she helped find
someone to open the safe taken from Lopez's home. (R-V-111) Thornton contacted her friend
David Tillman to open the safe. (R-V-111) She retrieved the safe from the attic in the vacant
house and, along with Joseph Facundo, went to David's house. (R-V-112) When Tillman
opened the safe, legal papers were found inside that included the name ofRussell Lopez. The
papers were thrown away. (R-V-115) The safe was left with David Tillman. (R-V-115)
Thornton claim she only received a couple hundred dollars. (R-V-115, 116) Thornton also got
jewelry which she sold. (R-V-116) She acknowledged that on December 28, 2011, she gave
a statement to Detective Clopton with Sheriffs Department. She indicated that between the
time of the killing and the time of her statement, she was staying high, doing a lot of cocaine
and selling some of the stolen property. (R-V-117) Thornton admitted that when she spoke
15
with Clopton she did not tell him the truth. Thornton claimed because she was scared of her
involvement. (R-V-118) She indicated that she was not honest with the police because she
didn't want them to know about her involvement in the case. (R-V-119) She also admitted
that she was not honest with the police about the vacant house because she didn't want them
to know about it. There was still property in the vacant house so she was not honest with
them about it. (R-V-119) Thornton said that Facundo and Appellant received money as well
as property. (R-V-120)
During cross examination, Thornton acknowledged that she was on mood stabilizers:
Thorazine, Klonopin and Mamictal. (R-V-121) Thornton testified that she had been
continuously confined in the Harris County jail since her arrest on December 28, 2011. (R-V-
122) In cross examining Thornton regarding her motive for changing her testimony, by
testifying against co-conspirators to get out of jail and her desire to get out of jail, Thornton
stated that: she was basically being warehoused and contained. She testified that there were
no educational or learningjob skill opportunities while in jail. (R-V-124) She indicated that
she had had several problems with other inmates since being in jail. (R-V-124, 125) Thornton
stated that she had been disciplined and lost her commissary rights. (R-V-125) She testified
that the last time she saw her son was two and one-half years ago and that she wanted to see
her son again. (R-V-125) Thornton stated that if she got out ofjail, she would be able to have
a life with her son. (R-V-126) She also stated that she had gained 100 lbs since being
incarcerated. (R-V-127) She told the jury it had been very stressful for her being in jail,
Thornton indicated that she was made aware that she might have an opportunity to get out of
jail by cooperating with the prosecution about one month before testifying. (R-V-127) She
stated that the reason she had not pled guilty earlier was because the prosecution hadn't
16
offered her anything. (R-V-128) Thornton explained that she was the moving force behind
the plea deal and that she had gone to the State, the State had not come to her. (R-V-128)
Thornton stated that she was asking for probation on her aggravated robbery case. She stated
that she was not going to know the outcome until she testified against Appellant and also
Joseph Facundo. (R-V-129) She agreed that she had a lot riding on the testimony. She further
agreed that she got off death row and she might be home with her son if everything worked
out right for her. (R-V-129) She acknowledged that she had met jointly with the prosecutor
and her defense attorney to prepare for her testimony in court against Appellant. (R-V-130)
She stated that between December 11, 2011 and December 28, 2011, she had not consulted
with an attorney but in fact was trying to sell the jewelry taken from Lopez. (R-V-131) She
denied asking David Tillman to chop up a truck or ifhe knew how to go about doing that. (R-
V-131) Thornton acknowledged that she wasn't sure whether she was going to be able to get
away with this case. (R-V-131) Thornton admitted that when she met with Clopton she told
him she was going to honest with him, but in fact was not honest. (R-V-133) She admitted
that she had lied during that statement. She claimed that she was going to be honest regarding
everything she testified to in court. (R-V-133) Thornton told thejurythatRussellLopezwas
the neighborhood drug dealer and in fact had sold to teenagers and other kids. She stated that
it wasn't just marihuana, it was across the board - cocaine and pills. (R-V-134) She also
acknowledged that some of those kids would take stolen property to Lopez and sell it to him,
just like she said they were trying to do on the night of Lopez's death. (R-V-134) While
Thornton professed to know the plan. She indicated that there was never any discussion about
Marie Lopez, or whether she would be there. Initially, Thornton said that they didn't know
whether the kids would be there but they had planned to tie them up if they were. (R-V-13 5)
17
'I
I
She stated that no one had gotten any tape or rope or made plans to do that in order to tie up
the kids. (R-V-13 5) Thornton admitted that the story she told the jury on direct examination,
when questioned by the prosecutor, was different than the story she told Sergeant Clopton
back on December 28, 2011. (R-V-144) She admitted that on December 28, 2011, she told
Clopton there was no plan. In court she stated there was a plan. (R-V-145) Thornton
confessed that she never told Clopton that they had been at the vacant house because she
didn't want him to know the part that she played. (R-V-145) She also confessed that she
made up a completely different story about how they were walking down the street and ran
into Appellant and Appellant was taking a laptop over so they decided to go over with him.
(R-V-145) Thornton also agreed that although she told Clopton that she had a debt with
Lopez, and that is why they were using the laptop to pay the debt off, it was really true that
they were intending to rob and murder Lopez all along. (R-V-146) Additionally, Thornton
admitted that her story to Clopton on December 28, 2011, about how Joseph Facundo had
taken her straight back to her home after Facundo had murdered Lopez, was not true. (R-V-
146) She agreed that there were a lot of differences between what she said initially to
Clopton, explaining that she didn't have an opportunity to consult with a lawyer or prepare
a defense, and what she was saying in court. (R-V-14 7) She agreed that it was to her
advantage to be untruthful on December 28, 2011 because she didn't think she was going to
get in trouble with the story she told Clopton. (R-V-14 7) Thornton admitted that it was to her
advantage to lie to the police. (R-V-14 7) She also admitted and agreed that it was pretty bold
of her to stand up to two experienced homicide detectives - and that it took guts and willpower
to do so. (R-V-148) In further cross examination, Thornton agreed that she was smoking
marihuana while she was on probation and that this was a violation of probation. She agreed
18
that she lied to the court and lied to a probation officer about following the rules of probation.
She went on to state that it was convenient for her to do because it served her purpose.
Thornton said if she wanted to smoke dope, she did so, and then just lie to everybody about
smoking. (R-V-152) Thornton denied telling anybody about the murder between the date of
the offense and her arrest date. She stated she spoke with Jim Weyland aka Blinkie and he
thought that she was acting strangely after the murder. (R-V-153) She stated she was buying
a lot of cocaine and the neighbors were talking about the murder that had happened. (R-V-
153) Thornton noted that even in talking with Blinkie she didn't want to tell nobody the truth.
(R-V-156) Thornton also admitted that she had some jewelry that she had taken over to David
Tillman's house. She stated that she had lied to Sergeant Clopton and told him she never got
any jewelry. Thornton never saw Joseph Facundo hand the scabbard with the sword to
Appellant. (R-V-158) During continuing cross examination, Thornton indicated that her
meetings with the prosecutor were recorded. (R-V-168,169)
Frances David Tillman, who had been convicted of possession of a controlled
substance, testified that he knew both Amber Thornton and Joseph Facundo, but did not
know Appellant (Tony Escobar). (R-V-174) Tillman testified that four or five days after the
murder of Lopez, Thornton came to his house trying to sell (or get rid of) watches and a ring.
On a subsequent visit, Thornton came to Tillman's house only with Joseph Facundo. (R-V-
178) Tillman stated that later, when he had to open the safe, all three individuals were
present. (R-V-181, 182) The State and Appellant later entered into a stipulation that Sergeant
Clopton had reviewed his report and there was nothing in Frances Tillman's statement about
Appellant showing up later at the time the safe was opened. (R-VI-6) Tillman opened the safe
and found papers inside with the name Russell Lopez - he became suspicious. (R-V-182)
19
Tillman ultimately turned the safe over to Sergeant Clopton. (R-V-183)
During cross examination, Tillman said Thornton talked to him about trying to dispose
of a truck. Thornton asked Tillman about a chop shop and he indicated that he did not involve
himself with that. (R-V-186) Tillman described Joseph Facundo as acting like it was no big
thing to him. He even described Facundo grinning. On the other hand, Tillman described
Thornton as being real worried - she looked like something was up and she was real scared
and crying. (R-V-189) Tillman also confirmed that Appellant wasn't at the location when
there was talk about chopping up a truck. (R-V-189)
Sergeant Clopton was recalled to testify. (R-V-195) Clopton described how he and
Sergeant Miller went down to Laredo to pick up Appellant and question him regarding this
case. (R-V-197) After warning Appellant of his legal rights, Clopton proceeded to question
the Appellant.
Diana Wolfshohl, a DNA analyst with the Harris County Institute of Forensics
Sciences, testified that "touch DNA" is basically skin cells being left behind on an object and
testing whether there was DNA from those skin cells present on the objects. (R-VI-12)
Among the items she reviewed were a scabbard (State's Exhibit No. 76). Wolfshohl' s findings
and the work on the case were then passed on to DNA for their analysis. (R-VI-27)
Christine Smejkal, a DNA analyst with the Harris County Institute of Forensics
Sciences, testified that her analysis revealed there was a mixture of DNA on the scabbard
which was collected as evidence in this case. She testified that Russell Lopez and Appellant
could not be excluded as possible contributors to the mixture of DNA. (R-Vl-42) She
testified that Marie Lopez, Joseph Facundo and Amber Thornton were excluded as
contributors to this mixture. (R-VI-4 2) Smejkal testified that of all the other items that were
20
submitted for analysis, Appellants DNA did not appear on any of those items. (R-VI-4 7) She
testified that there was no DNA on the sword that was found on the body of the Complainant.
(R-VI-50) Ultimately, she testified that because Appellant could not be excluded as a
contributor to the DNA found on the scabbard, it's possible he touched the scabbard. (R-VI-
50) She agreed that the assumption could be made that Appellant wasn't wearing gloves
when he handled the scabbard, if he handled it. (R-VI-51) When questioned about the
absence of DNA on the sword handle, she stated that if an individual was not wearing gloves
there would be a pretty good chance of getting DNA. (R-VI-52)
Roger Milton, Jr., Assistant Medical Examiner from the Harris County Institute of
Forensics Sciences, testified regarding his autopsy results. (R-VI-54) Milton explained that
the Complainant had extensive blunt and sharp force injuries primarily of his head and neck
region and some on the front of his chest. (R-VI-62) He also observed the presence of two
narrow objects penetrating into the soft tissue in what he referred to as potentially chop
injuries. (R-VI-63) Dr. Milton testified that the Complainant had sustained at least 16 distinct
blunt force injuries to the head. (R-VI-63) The injuries to the Complainant's face were
extensive and very destructive with fractures. (R-VI-64,65) Milton also observed perforating
wounds on the body of Russell Lopez, including a stab wound to the right upper chest that
went through his lung. (R-VI-68) Dr. Milton testified that a sword shown to him (State's
Exhibit No. 94) was capable of inflicting the type of injuries sustained by the Complainant.
He indicated that there was very little hemorrhage along the wound track indicating that the
injury was consistent with either a peri-mortem (around the time of death) or even postmortem
injury. (R-VI-100) Dr. Milton opined that the Complainant's cause of death was multiple
blunt and sharp force injuries of the head, neck and chest. He determined that the manner of
21
death was homicide. (R-VI-107)
Caden Lopez testified that on December 20, 2011, he was at home with his cousin
Mabel. He testified that his father had some friends over that afternoon. (R-VI-124) He
testified that his father was sitting at the kitchen table and that his sister was in a high chair.
(R-VI-125) A man walked into his room carrying his sister's clothes, and then the man said
that they were going to play cops and robbers. The man then tied them up and put them on
the bed. (R-VI-126) Caden was eventually able to loosen up the clothing that was tied around
him. He then helped his cousin Mabel. (R-VI-127) Caden described the process of being tied
up taking close to 8 minutes. (R-VI-128) He stated that the man who tied them up made no
threats at all. (R-VI-128) He also said he knew something bad was going on in the other room
and that he observed a women carrying his little sister. (R-VI-131) He was unable to make
out exactly what was being said in the other room, but testified that he heard two voices in his
dad's bedroom. (R-VI-134) Caden then identified Appellant as one ofthe individuals that had
been inside his home with his father on the day that he was murdered. (R-VI-141) The State
and Appellant rested and closed the case. (R-VI-141-143)
The jury found Appellant guilty of capital murder as charged in the indictment. (R-VII-
57) Appellant to life in the Texas Department of Criminal Justice. (R-VII-60) The prosecutor
stipulated that Appellant, Tony Escobar, had a date of birth of August 15, 1994. The offense
occurred on December 20, 2011, making Appellant 17 years old at the time of the offense was
committed. The prosecutor confirmed that this would make Appellant eligible for parole on
his life sentence after 40 calendar years. (R-VII-61,62)
22
! -
STATEMENT OF FACTS IN THE CASE
POINT OF ERROR NUMBER ONE
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE
JURY'S VERDICT FINDING APPELLANT GUILTY OF CAPITAL MURDER
BEYOND A REASONABLE DOUBT WHICH REQUIRES THE ENTRY OF A
JUDGMENT OF ACQUITTAL (R-IV-VI)
POINT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR
INSTRUCTED VERDICT OF NOT GUILTY AT THE CLOSE OF THE STATE'S
CASE (R-VI-142,143)
The Statement of Facts and Argument and Authorities under these two Points of Error
are grouped together pursuant to Rule 38.l(t) of the Texas Rules of Appellate Procedure.
STATEMENT OF FACTS
The full Statement of Facts appearing at the beginning of this brief is incorporated
herein by reference for all purposes. A short summary of the salient facts appear below:
The State's evidence critically hinged on the testimony of Amber Thornton - a co-
defendant to Joseph Facundo and Appellant. Up until the eve of Appellant's trial, Thornton
was also charged with the offense of capital murder in the death of Russell Lopez - a person
Thornton described as the neighborhood drug dealer. Just weeks before Appellant's trial was
to begin , Amber Thornton was awarded a plea bargain in exchange for her testimony against
Appellant at his trial. Thornton's capital murder charge was dismissed by reducing it to the
offense of aggravated robbery. Thornton's punishment was to be fixed after she testified
against both Appellant and Joseph Facundo.
When Thornton first discussed this matter with homicide Sergeant Craig Clopton on
December 28, 2011, her version of the events differed wildly from her trial testimony. From
claiming she had an innocent encounter with Appellant while she walked down the street to
23
sell a laptop - to testifying about a pre-planned conspiracy to rob Russell Lopez, Thornton
provided the State with evidence that was otherwise non-existent. During cross examination,
Clopton admitted that he had been provided no direct evidence that there was a conspiracy or
plan to rob Russell Lopez when speaking with Thornton. (R-V-10)
Other witnesses testified about the condition of Lopez when he was found laying on
the floor of his home. Others testified about the relationships between the individuals
involved, while others testified about scientific and forensic testing that was done. The sum
total of the evidence failed to establish little more than that Appellant's DNA was found on
a scabbard (sheath) at the scene. There was no evidence offered to establish that Appellant
ever used a sword or scabbard to assault the complainant. There was no evidence offered that
Appellant struck the complainant with a hammer or stabbed the complainant with a sword.
Thornton's testimony established that Facundo possessed a hammer and that he was holding
a sword and told her not to look just before stabbing the complainant. Thornton's testimony
that several days later Appellant was present with her and Facundo when she had a friend
open a safe taken from the complainant's home, was refuted by Sergeant Clopton' s statement
that Mr. Tillman did not confirm that Appellant was present.
Appellant moved for an Instructed Verdict ofNot Guilty at the close of the State's
evidence, (R-VI-142,143) The trial court denied this motion. (R-VI-143)
ARGUMENT AND AUTHORITIES
Section 19.03(2) of the Texas Penal Code, provides that a person commits an offense
if the person commits murder as defined under Section 19.0l(b)(l) and the person
intentionally commits the murder in the course of committing or attempting to commit
robbery. The State is obligated to prove beyond a reasonable doubt that Appellant had the
24
specific intent to cause the death of Russell Lopez.
The burden of proof is on the State to establish beyond a reasonable doubt that
Appellant committed the offense alleged. Hightower v. State, 389 S.W.2d 674 (Tex. Crim.
App. 1965); McCullen v. State, 372 S.W.2d 693 (Tex. Crim. App. 1964) This burden of
proof is on the State to prove each and every element of the offense beyond a reasonable
doubt. Mullaney v. Wilbur, 421 U.S. 684 (1975) In re Winship, 397 U.S. 358 (1970)
In Texas criminal jurisprudence, the concept of "legal sufficiency" of the evidence is
based upon the law of due process. See: Gollihar v. State, 46 S.W.3d 243 (Tex. Crim.
App.2001) citing In re Winship, 397 U.S. 358, where the court expressed it as follows: We
expressly hold that the Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.
Sufficiency of the evidence is measured by the standard enunciated by the United
States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979): whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
In Brooks v. State, 323 S.W.3d 893 (Tex .Crim. App. 2010) this Court held there is
no meaningful distinction between a Clewis v. State, 922SW2d126 (Tex. Crim. App.1996)
factual sufficiency standard and a Jackson v. Virginia, 443 U.S. 307 (1979) legal sufficiency
standard. This Court announced that the Jackson v. Virginia legal-sufficiency standard is
the only standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt. The court noted that it bears emphasizing that a rigorous and
25
proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a
standard as any factual-sufficiency standard (especially one that is "barely distinguishable"
or indistinguishable from a Jackson v. Virginia legal-sufficiency standard). Reversal and
acquittal are required under this standard of review, if, after considering all the evidence the
jury's finding of guilt is not a rational finding.
In her concurring opinion in Brooks, Judge Cochran noted that the Jackson Court
stated the correct standard must incorporate the prosecution's burden of proof - beyond a
reasonable doubt - in a due-process review. The court noted that a reasonable doubt has
often been described as one based on reason which arises from the evidence oflack thereof.
A reasonable doubt might arise because the verdict is manifestly against the great weight and
preponderance of the credible evidence or because there is nothing more than a mere scintilla
of evidence to support some element of the offense. Judge Cochran, cited Black's Law
Dictionary, which states that legal sufficiency of the evidence is a test of adequacy, not mere
quantity. Sufficient evidence is "such evidence, in character, weight, or amount, as will
legally justify the judicial or official action demanded." Judge Cochran went on to state that
in criminal cases, only that evidence which is sufficient in character, weight, and amount to
justify a fact finder in concluding that every element of the offense has been proven beyond
a reasonable doubt is adequate to support a conviction. After giving proper deference to the
role ofthe trier of fact, an appellate court must uphold the verdict unless a rational fact finder
must have had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d
at 518, citing Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992)
The complete record in this case fails to establish beyond a reasonable doubt that
Appellant intentionally and knowingly caused the death of Russell Lopez as alleged in the
26
indictment.
In the absence of proof beyond a reasonable doubt that Appellant was responsible for
the death of Russell Lopez, either individually or as a party, a conviction for the offense of
capital murder cannot withstand appellate review and the entry of a judgment of acquittal by
the reviewing court. The evidence offered by the State's witnesses did not enhance the
weight or sufficiency of the evidence on this issue. Viewing the evidence in the light most
favorable to the verdict, the appellate court determines whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
An appellate court must always address challenges to the sufficiency of the evidence.
Garza v. State, 715 S.W.2d 642 (Tex. Crim. App.) Such a review must be conducted when
a legal sufficiency challenge is raised, even if the conviction must be reversed on other
grounds, because a finding that the evidence is legally insufficient to support the conviction
prevents a retrial under the double jeopardy clause of the Fifth Amendment. Hudson v.
U.S., 522 U.S. 93 (1977) If this Court finds that the verdict is contrary to the evidence
presented at trial, this Court can reverse the conviction and enter a judgment of acquittal.
Texas Code of Criminal Procedure, Art. 44.25; Texas Rules of Appellate procedure
43.2©.
An individual may be held criminally responsible for their own voluntary conduct as
well as for the criminal conduct of others. Texas Penal Code Section 6.01 and 7.01. One
may be criminally responsible for the acts of another as a party, or as a co-conspirator under
Texas Penal Code Section 7.02(a)(2) and 7.02(b). No evidence was offered at trial that
Appellant caused the death of the Complainant. The evidence submitted supports the
conclusion that Joseph Facundo took the life of Russell Lopez. The complaining witness
27
died as a result of multiple blunt and sharp force traumas. The injuries were consistent with
the use of a hammer and a sword, both of which were observed in the possession of only
Joseph Facundo. Therefore, it can be reasonably concluded that Joseph Facundo took the
Complainant's life.
To establish that Appellant was guilty as a party, the State must prove that Appellant,
while acting with the intent to promote or assist in the commission of the offense, solicited,
encouraged, directed, aided, or attempted to aid another person in the commission of the
offense. Texas Penal Code, Section 7.02(a)(2). Mere presence at the scene, either before,
during, or after the offense, or flight from the scene, without more, is insufficient to establish
party liability. Valdez v. State, 623 S.W.2d 317 (Tex. Crim. App. 1979). To be guilty as
a party, Appellant must have committed some culpable act before or during the course of the
offense. Morrison v. State, 608 S.W.2d 233 (Tex. Crim. App. 1980).
The State must prove that at the time of the offense the participants were acting
together, each contributing toward the execution of a common purpose. Ransom v. State,
920 S.W.2d 288 (Tex. Crim. App. 1996). A defendant must know he is assisting in the
commission of the offense and that intent may be inferred from the accused's words and
actions. Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995). There was no evidence
that would establish that Appellant acted with the requisite intent to carry out a common
purpose, i.e. the killing of Russell Lopez. Appellant submits that there was no credible
evidence to establish that Appellant and Joseph Facundo were acting together when Facundo
killed the Complainant.
The evidence was insufficient to support Appellant's conviction for Capital Murder
individually or as a party according to Texas Penal Code, Section 7.02(a)(2) because he did
28
not intend to promote or assist Joseph Facundo and/or Amber Thornton in the murder of the
Complainant. Capital Murder' is a result of conduct offense requiring the specific intent to
cause the death of the Complainant. Hughes v. State, 897 S.W.2d 285 (Tex. Crim. App.
1994). The accused must not only intentionally engage in the act that causes the
Complainant's death, he must also specifically intend that death result from that act. Hughes.
To be held responsible under the party liability found in 7.02(a )(2) of the Texas Penal Code,
the accused must know of the co-actor's unlawful intent when they act to promote or assist
the other's conduct. Hill v. State, 883 S.W.2d 765 (Tex. Crim. App. -Amarillo, 1994). The
record in the instant appeal is devoid of any evidence suggesting or establishing that
Appellant knew of the "co-actors" unlawful intent as alleged by the State.
An individual can be held responsible for the acts of another if that person conspires
to commit a felony offense with another person and that person commits an offense in
furtherance of the planned offense and that new offense should have been anticipated as a
result of carrying out the conspiracy. A person can be held responsible as a co-conspirator
under Section 7.02(b) if the accused should have anticipated the victim's murder as a
consequence of proceeding with the robbery and the victim's death occurred in the
furtherance of that offense. Ex Parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005).
Once again, there is simply no evidence in the record to establish that Appellant, (1)
conspired to commit a felony offense with either Joseph Facundo and/or Amber Thornton
and (2) that he should have anticipated the Complainant's murder as a consequence of
proceeding with Facundo and Thornton. Appellant could not have anticipated that Facundo
would murder Russell Lopez.
Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction
29
cannot be had upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense. Amber Thornton was identified
by the court as an accomplice. (CR-I-250) The evidence offered by Amber Thornton failed
to establish that Appellant caused the death of Russell Lopez as alleged in the indictment.
Thornton's testimony did little more than place Appellant at the scene where Joseph Facundo
caused the death of Russell Lopez. Appellant's mere presence in the company of someone
identified as an accomplice before, during, and after the commission of the offense is
insufficient by itselfto corroborate accomplice testimony. Dowthitt v. State, 931 S.W.2d 244
(Tex. Crim. App. 1996) After this Court eliminates all of the accomplice testimony from
consideration and then examines the remaining portions of the record to see if there is any
evidence to connect the accused with the commission of the crime - it will find that
Appellant's conviction cannot stand. Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App.
2007)
Whether viewed individually, or collectively, the issues addressed in this Point of
Error require reversal based on legally insufficient evidence. Appellant submits that this
result will be reached after the Court conducts a rigorous and proper application of Jackson
and Brooks. The jury's verdict was not based on a rational review of the evidence. Winn
v. State, 871 S.W.2d 756 (Tex. App. - Corpus Christi 1993)
Appellant submits that even though a jury is charged with the responsibility of
determining the credibility of witnesses and the weight to be given their testimony, in this
case, as a matter of Due-Process, this appellate court should find that the verdict is not right
or just, and therefore it cannot stand. Appellant submits that when this Court conducts its
30
Due-Process review of the sufficiency of the evidence to support the conviction, even when
viewing the evidence in the light most favorable to the verdict, it must find that no rational
trier of fact could have found the essential elements of the crime of capital murder in this
case beyond a reasonable doubt. Stobaugh v. State, 02-11-00157-CR (Tex. App. - Fort
Worth, January 23, 2014) citing: Jackson v. Virginia.
Where the evidence is insufficient to sustain a conviction on appeal, double jeopardy
bars a retrial. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978);
Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978).
POINT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED WHEN IT ADMITTED THE 911 TAPE INTO
EVIDENCE OVER APPELLANT'S OBJECTION (R-11-4,5) (R-IV-8,44)
STATEMENT OF FACTS
In a pre-trial hearing, Appellant noted his objection that the 911 tape made in this case
was irrelevant. (R-II-4,5) The State responded that the tape was factual and, without
providing additional details, claimed it went to several of the elements that State was tasked
with proving beyond a reasonable doubt. (R-I-5,6)
Appellant renewed his objection to the admissibility of the 911 tape and
accompanying business records affidavit at trial. (R-IV-8) In arguing against its admission,
Appellant further noted the prejudicial nature of the 911 recording. (R-IV-8)
The trial court overruled Appellant's objections - the business records affidavit and
911 tape were admitted into evidence as State's Exhibits 1 & 2. (R-IV-44) The 911 tape was
published to the jury. (R-IV-44)
Appellant urges this Court to listen to the content of the 911 tape in order fully
appreciate the nature of the error raised herein. (State's Exhibit# 2) The seven minute 911
31
tape contains the voices ofAmanda Shonte Mabe and the 911 dispatcher. Mabe is extremely
emotional as the dispatcher tries to convince Mabe to perform CPR on the complainant. The
complainant's wife (Marie Lopez) can be heard sobbing and crying while she is trying to take
care of her babies. Amanda Shonte Mabe and Marie Lopez offered live testimony before the
jury in this case. (R-IV-34,177)
ARGUMENT AND AUTHORITIES
Rule 401 of the Texas Rules of Evidence states that "Relevant evidence" means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.
Rule 403 of the Texas Rule of Evidence provides that although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.
In reviewing the trial court's determination of the probative and prejudicial value of
evidence under Rule 403, a reviewing court will reverse the lower court's ruling upon a
showing of a clear abuse of discretion. Rachel v. State, 917 S.W.2d 799 (Tex. Crim. App.
1996) Reviewing for abuse of discretion requires more than deciding that the trial court did
in fact conduct the required balancing between probative and prejudicial values - the trial
court's determination must be reasonable in view of all the relevant facts. As a result, ifthe
record reveals that the probative value of the tendered evidence is substantially outweighed
by unfair prejudice, then the trial court acted irrationally in admitting the evidence and
abused its discretion.
32
While 911 tapes are sometimes admitted to provide a framework within which the
State's evidence may be developed, such a "framework" does not reveal itself when listening
to the 911 tape in the instant appeal. Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988)
In the instant case, Appellant's explained to the trial court that the 911 tape depicted
the call made by individuals after finding the complainant's body. Appellant noted that the
tape was not relevant because the State had ample other evidence concerning the discovery
of the body and the police coming out to the scene. In light of that other evidence, the
evidence contained on the 911 tape was redundant and really not part of the dispute at trial.
Appellant objected to the inflammatory and prejudicial nature of the recording. Evidence is
unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an
improper basis. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) I n
listening to State's Exhibit # 2 (911 tape), this Court will discover that the evidence
contained on the tape [the 911 dispatcher urging Ms. Mabe to perform CPR on the
complainant and hearing the crying and sobbing of the complainant's wife as she tends to her
young children]. Appellant fails to se how this particular evidence was "relevant" (as
required by the Texas Rules of Evidence) to any issue of consequence in this case. The
evidence should have been excluded at trial.
Appellant submits that because the record reveals that the 911 tape was not "relevant"
within the meaning of the Rules of Evidence and because the "probative value" of the
tendered evidence was substantially outweighed by unfair prejudice to Appellant, the trial
acted irrationally in admitting the evidence and abused its discretion. Rachel.
33
POINT OF ERROR NUMBER FOUR
THE TRIAL COURT ERRED WHEN IT ADMITTED NUMEROUS AUTOPSY
PHOTOGRAPHS INTO EVIDENCE OVER APPELLANT'S OBJECTIONS (R-VI-
70-80; .82) (SX # 79,80,81,82,83,84,85,86,87,88,89,90,91,92,93)
STATEMENT OF FACTS
During its presentation of the evidence, the State sought to introduce numerous color
autopsy photographs depicting the appearance ofthe complainant (Russell Lopez). (R-VI-70-
80,82) (SX # 79,80,81,82,83,84,85,86,87,88,89,90,91,92,93)
Appellant objected that the color autopsy photographs were not relevant under Rule
402, especially in light ofthe fact that the injuries and cause of death were not even contested
issues. (R-VI-71-73) Amber Thornton, the State's key witness and who was identified as an
accomplice as a matter oflaw, provided no evidence to show that Appellant caused any of
the injuries depicted in the numerous color photographs allowed in evidence. Appellant went
on to state that if the trial court found the photographs to be relevant, he further objected
pursuant to Rule 403 that the probative value was substantially outweighed by the danger of
unfair prejudice, confusion of the issues and inflammatory nature of the photographs and
misleading the jury. The trial court overruled Appellant's objections and admitted State's
Exhibits 70 thru 93)
ARGUMENT AND AUTHORITIES
An appellate court reviews a trial court's admission of photographs into evidence
under an abuse of discretion standard. Perry v. State, 903 S.W.2d 715 (Tex. Crim. App.)
cert. denied, 516 U.S. 977 (1995) A photograph is relevant only if it has any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Rule 401 When the accused
34
objects that the photographic evidence is more prejudicial than probative, the trial court must
conduct a balancing test under Rule 403. Evidence is unfairly prejudicial when it has a
tendency to suggest that a decision be made on an improper basis. Reese v. State, 33 S.W.3d
238 (Tex. Crim. App. 2000) citing Montgomery v. State, 810 S.W.2d 372 (Tex. Crim.
App. 1990) In conducting the balancing test, the trial court should analyze: (1) how probative
the evidence is; (2) the potential of the evidence to impress the jury in some irrational way;
(3) the time the proponent will need to develop the evidence; and (4) the proponent's need
for the evidence, i.e., whether other evidence is available and whether the fact of
consequence is related to a disputed issue. Montgomery.
Appellant would show that unlike the case of Flores v. State, 299 S.W.3d 843 (Tex.
App. - El Paso, 2010 - pet. ref'd) where the court found no error because of the
overwhelming evidence of guilt, the admission of the color autopsy photographs constituted
error which had a substantial and injurious effect or influence in determining the jury's
verdict. Appellant submits that this Court cannot be left with the fair assurance that the error
did not influence the jury, or influenced the jury only slightly.
POINT OF ERROR NUMBER FIVE
THE TRIAL COURT ERRED WHEN IT LIMITED APPELLANT'S CROSS
EXAMINATION OF SERGEANT CLOPTON REGARDING INFLUENCES AND
MOTIVES TO FABRICATE A STORY (R-V-12)
STATEMENT OF FACTS
In light of the fact that Amber Thornton changed her version of what took place on
December 20, 2011 between her first meeting with Sergeant Clopton on December 28, 2011
and the date of her trial testimony, Appellant's cross examination of Clopton focused on the
credibility of Amber Thornton. Clopton, a twenty-three year police veteran with nine years
35
experience as a homicide investigator, was asked ifhe would agree that taking capital murder
off the table and offering aggravated robbery and possible probation could influence or be
a motive to fabricate a story. (R-V-12)
The State objected on the basis of speculation and relevance.
\ Despite Appellant's assertion that Clopton was qualified to testify as an experienced
homicide investigator, the trial court sustained the objection. (R-V-12)
ARGUMENT AND AUTHORITIES
Rule 701 of the Texas Rules of Evidence provides that a non-expert witness can
offer an opinion or inferences which are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of the witness' testimony or the determination of a
fact in issue.
Rule 702 of the Texas Rules of Evidence permits testimony in the form of opinions
or otherwise from individuals who possess specialized knowledge which will assist the trier
of fact to understand the evidence or to determine a fact in issue.
In the instant case, the credibility of Amber Thornton was at the forefront of
Appellant's cross examination. It was thus critically important to educate the jury about any
circumstance which could provide a reason for Thornton to fabricate testimony at trial.
The admissibility of evidence generally and the qualifications of a witness to testify
as an expert is within the sound discretion of the trial court. Weatherred v. State, 15 S.W.3d
540 (Tex. Crim. App, 2000) Under Rule 701 a non-expert witness can offer testimony in
aid of the jury's fact-finding role. In the instant case, Sergeant Clopton had personal
knowledge of Thornton's previous statement given to him on December 28, 2011. This fact,
along with his years of experience as a homicide investigator uniquely qualified him to share
36
his insight and knowledge surrounding reasons for a witness fabricating a story or testimony.
Clopton was qualified to offer his opinion based on hypothetical questions posed to him.
Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996) Appellant submits that the trial
court abused its discretion when it excluded reliable, relevant evidence from Clopton that
would have assisted the trier of fact by increasing the juror's awareness of biasing factors in
Thornton's testimony. Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011)
Appellant's right to cross examine witnesses against him, as guaranteed to him by the
Confrontation Clause of the Sixth Amendment, was violated when he was prevented from
questioning Clopton. Appellant submits that the trial court abused its discretion in limiting
his cross examination and that a reasonable jury might have had a significantly different
impression of the credibility of Thornton if Appellant had been allowed to pursue the
questioning. U.S. v. Maceo, 947 F2d 1191 (5th Cir. 1991)
POINT OF ERROR NUMBER SIX
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
ESTABLISH WHAT QUESTIONS SERGEANT CLOPTON ASKED AMBER
THORNTON DURING HER INTERVIEW WITH HIM ON DECEMBER28, 2011 (R-
IV-278,279)(R-V-18)
POINT OF ERROR NUMBER SEVEN
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
INTRODUCE AMBER THORNTON'S STATEMENT TO SERGEANT CLOPTON
IN EVIDENCE PURSUANT TO RULE 801(E)(l)(E) OF THE TEXAS RULES OF
EVIDENCE (R-IV-278,279)(R-V-12-17)
POINT OF ERROR NUMBER EIGHT
THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT AMBER
THORNTON'S STATEMENT TO SERGEANT CLOPTON UNDER THE RULE OF
OPTIONAL COMPLETENESS. (R-V-135-144)
37
These Points of error are grouped together pursuant to Rule 38.1 (f) ofthe Texas Rules
of Evidence to avoid duplication of statement and argument. These Points of Error concern
the same subject matter. · · ·
STATEMENT OF FACTS
When Sergeant Craig Clopton was testifying, Appellant sought to introduce the
questions Clopton asked of Amber Thornton when she met with Clopton on December 28,
2011. (R-IV-278,279) The State objected that it constituted impeachment. (R-IV-278)
Appellant pointed out that he was just asking what questions Clopton asked, not the
responses. (R-IV-278) When Clopton continued his testimony, he confirmed that he
considered Amber Thornton a co-conspirator in the commission of the crime that resulted in
the death of Russell Lopez. (R-V-12) Appellant sought to introduce Thornton's audio
statement made to Clopton (Def. # 1) (Transcript as Def. # 2) submitting that her recorded
statement was admissible under Rule 801 (e)(l)(E) of the Rules of Evidence as a statement
of a co-conspirator. (R-V-13,15,16,17,18,135,136) Appellant also sought admission under
Rule 801 (e)(l)(b) to rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive. (R-V-13,138,139) Appellant made a bill of
exception documenting the requested statement. (R-V-17,18) (CR-I-Def. Ex. # 2 - transcript)
(CR-I- Def. Ex. #1 - audio recording) Appellant also argued that Thornton's statement was
admissible under Rule 107 - the Rule of Optional Completeness. (R-V-138) Throughout
the entire colloquy, the State argued against admission citing hearsay and that it was
improper impeachment. (R-IV-278)(R-V-14,17,18) The trial court sustained the State's
objections. (R-V-17,136,137,138)
38
ARGUMENT AND AUTHORITIES
Rule 801(e)(l)(E) of the Texas Rules of Evidence allows the introduction of a co-
conspirator's statement if made during the course and furtherance of the conspiracy.
Rule 801(B) of the Texas Rules of Evidence authorizes the admission of a statement
which is consistent with testimony offered to rebut an express or implied charge of recent
fabrication or improper influence or motive.
Rule 107 of the Texas Rules of Evidence provides that once a statement is given in
evidence by one party, the whole on the subject may be inquired into by the other party to
make it more fully understood or to explain the same.
A co-conspirator's statement is admissible pursuant to Rule 801(e)(l)(E) when two
or more people take part in the commission of a felony, even though the substantive crime
of conspiracy is not charged. Meador v. State, 812 S.W.2d 330 (Tex. Crim. App.1991) This
rule is applicable to any offense. Meador In the instant appeal, Appellant offered Thornton's
statement as substantive evidence because in her statement to Sergeant Clopton she was in
furtherance of the conspiracy by trying to keep its existence from being discovered by law
enforcement. King v. State, 189 S.W.3d 347 (Tex. App. - Fort Worth 2006, no pet.)
Appellant submits that the jury should have been afforded the opportunity to understand how
Thornton went from claiming ignorance (with Clopton) to becoming the star witness for the
State at trial.
When Thornton testified and gave testimony that was at odds with her statement made
to Clopton, the jury was entitled to the benefit of the whole of her statement under the Rule
of Optional Completeness. The rule permits the introduction of evidence when it is
necessary to fully and fairly explain a matter opened up by the adverse party. Walters v.
State, 247 S.W.3d 204 (Tex. Crim. App. 2007) The jury was deprived of the full flavor of
39
the exchange taking place between Sergeant Clopton and Thornton on December 28, 2011.
The Court's rulings prevented Appellant from presenting a full and complete defense.
Homes v. South Carolina, 547 U.S. 319 (2006).
POINT OF ERROR NUMBER NINE
THE TRIAL COURT ERRED WHEN IT PREVENTED APPELLANT FROM CROSS
EXAMINING AMBER THORNTON ABOUT HER HABIT AND ROUTINE OF
LYING TO LAW ENFORCEMENT TO AVOID RESPONSIBILITY FOR HER
ACTIONS. (R-V-159.160,193,194)
STATEMENT OF FACTS
During cross examination of Amber Thornton, Appellant sought to elicit testimony
that she had previously lied to law enforcement concerning a separate investigation. (R-V-
159) The State objected that it was improper impeachment by a specific act. (R-V-160)
Appellant's counsel offered a proffer and bill of exception setting forth a prior incident
where police investigated Joseph Facundo for theft and found stolen property. (R-V-192, 193)
Appellant noted that Thornton was questioned by police and lied to them about her
knowledge ofthe crime. (R-V-159, 160) Appellant's argument was that Thornton told a story
to get out of trouble, just like she did in the instant case. (R-V-160,192,193) The trial court
sustained the State's objections and did not allow Thornton to be questioned in the presence
of the jury. (R-V-160,192,194)
ARGUMENT AND AUTHORITIES
Rule 406 of the Texas Rules of Evidence provides that evidence of habit of a person,
whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to
prove that the conduct of the person on a particular occasion was in conformity with the
habit.
Amber Thornton's credibility was in question throughout this trial. Appellant's
40
position was that Thornton would lie when it was in her best interest to do so. Appellant
sought to introduce evidence of Thornton's habit of lying by delving into her previous
interaction with law enforcement investigating none other than Joseph Facundo.
See: Guerrero v. State, 2011WL680314 (Tex. App. - Houston [14th Dist.] 2011)
where habit evidence was found to be admissible even against a charge that its admission
violated Rule 404(b). Appellant submits that it was error to deny him cross examination
concerning Thornton's habit oflying to get out of trouble. This was evidence the jury needed
to hear as part of its credibility evaluation of Thornton.
POINT OF ERROR NUMBER TEN
THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUESTED
JURY INSTRUCTION ON NECESSITY (R-Vll-4) (SX # 59 & 60)
STATEMENT OF FACTS
Appellant's statements given to Sergeant Craig Clopton on December 31, 2011 and
January 3, 2012, were introduced in evidence as State's Exhibits 59 & 60. In State's Exhibit
# 59, a tearful Appellant told Clopton that everything was "unexpected". He explained that
he did not know where Joseph Facundo obtained the hammer Facundo used to strike Russell
Lopez. Appellant said he was just shocked seeing the guy. He described being "frozen".
Appellant was scared and he didn't know what to do. Appellant noted that if Facundo could
do that to Lopez, why couldn't he just do it to him too. Appellant told Clopton he wanted to
run because he was afraid for his life. In State's Exhibit# 60, Appellant explained that he
didn't know where Joseph Facundo got the hammer. Appellant said that he just froze after
Facundo hit Lopez with the hammer. Appellant told Clopton how he was scared so he tied
up the kids as ordered by Facundo. Sergeant Clopton is heard on State's Exhibit# 60 talking
about the necessity defense when he says that he can understand if Appellant was doing
41
things at his [Facundo's] command. Clopton told Appellant that he understood that he
[Appellant] didn't want him [Facundo] to kill him.
After both sides rested and closed, the trial court asked the parties whether there were
any objections to the court's proposed jury charge. (R-VIl-4)
Appellant objected to the absence of a jury instruction concerning the defense of
"necessity". Appellant specifically requested that a defense of necessity instruction be given
to the jury. (R-VII-4) The trial court denied Appellant's request. (R-VIl-4) The instructions
provided to the jury did not mention the defense ofnecessity. (CR-1-236-257) The jury found
Appellant guilty of capital murder, as charged in the indictment. (CR-1-258)
ARGUMENT AND AUTHORITIES
Article 36.15 of the Texas Code of Criminal Procedure authorizes the submission
of special charges to the jury based on the evidence raised at trial. Long-standing precedent
provides that a trial judge must, upon a defendant's proper request, instruct the jury on every
defensive issue raised by the evidence without regard to its source or strength. Under this
doctrine, it is of no consequence whether such evidence or testimony was produced by the
prosecution or the accused, or whether such evidence or testimony might be strong, weak,
unimpeached, or contradicted. Booth v. State, 679 S.W.2d 498 (Tex. Crim. App.1984) As
the court noted in Booth, it is the trier of the facts, an no one else, who has the responsibility
to decide whether to accept or reject the defensive theory.
Section 9.22 of the Texas Penal Code provides that conduct is justified if:
(1) the actor reasonable believes the conduct is immediately necessary to avoid
imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to
42
ordinary standards ofreasonableness, the harm sought to be prevented by the law proscribing
the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not
otherwise plainly appear.
In reviewing the trial court's refusal to give a necessity instruction, this Court will
look to the facts set out in Appellant's statements to Sergeant Clopton (SX # 59 & 60).
Appellant submits that in the absence of any direct evidence establishing he actually
committed the specific acts set forth in the indictment, the only arguable claim for conviction
would be based on the law of parties. In admitting that he tied up the kids because he was
scared of Joseph Facundo and that he feared the same fate could await him ifhe didn't do
as ordered, Appellant provided evidence sufficient to warrant the submission of a necessity
instruction. The Court of Criminal Appeals has decided several cases involving the necessity
defense and the application of the confession and avoidance doctrine. Juarez v. State, 308
S.W.3d 398 (Tex. Crim. App. 2010) Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App.
2012) In Juarez, the Court held that even though the appellant maintained he never
intentionally, knowingly or recklessly engaged in an assault against a peace officer, the jury
could reasonably infer that specific conduct from the self-described actions taken by the
appellant. On that basis, the Court found that the appellant had satisfied the requirements and
was therefore entitled to a jury instruction on necessity.
The facts and circumstances confronting Appellant on December 20, 2011, resulted
in actions he reasonably believed were immediately necessary to avoid imminent harm.
Appellant submits he was entitled to a charge on necessity as set forth in Section 9.22 of the
Texas Penal Code.
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POINT OF ERROR NUMBER ELEVEN
THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUEST FOR
A JURY INSTRUCTION ON THE LESSER OFFENSE OF THEFT (R-VII-5,6)
STATEMENT OF FACTS
Appellant requested a jury instruction on the lesser-included offense of theft. (R-VII-
5) The trial court denied the requested instruction. (R-VII-5)
During his custodial statement on December 31, 2011, Appellant informed Sergeant
Clopton that he had only received maybe less than $1,000.00 from the proceeds of what was
taken from Russell Lopez. (State's Exhibit# 59) (R-V-201) On January 3, 2012, while still
in custody, Appellant confirmed to Clopton that he never got anything other than $1,000.00.
(State's Exhibit# 60) (R-V-208)
ARGUMENT AND AUTHORITIES
Section 31.03 of the Texas Penal Code states that a person commits an offense ifhe
unlawfully appropriates property with intent to deprive the owner of property. Theft of
property valued at $500.00 to $1,500.00 is classified as a Class "A" misdemeanor.
To determine whether an instruction for a lesser included offense is required, appellate
courts apply a two part test. Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993)
First, the lesser included offense must be included within the offense charged. Second, there
must be some evidence in the record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty of only the lesser offense. Appellate courts should review all
the evidence presented at trial in making this determination. Bignall v. State, 887 S.W.2d 21
(Tex. Crim. App. 1994)
Theft may be a lesser included offense of capital murder. Holiday v. State, 14 S.W.3d
784 (Tex. App. - Houston [l8t Dist] 2000, pet ref'd) The first prong of the Rousseau test
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was satisfied in the instant appeal. For reasons stated below, there was evidence in the record
that would have permitted the juiy rationally to find that Appellant was guilty only of theft.
As noted in the preceding Point of Error concerning the necessity defense instruction,
the State offered evidence through Sergeant Craig Clopton establishing that Appellant only
received $1,000.00 or less in this case. Additionally, there was evidence presented that
Appellant did not hit or stab the complainant. (SX # 59 & 60) (R-V-201,208)
Although Amber Thornton testified at trial that there was a plan to rob Russell Lopez,
cross examination of Ms. Thornton also produced evidence that there was no such plan and
that she had only casually encountered Appellant on the street as he was going to the
complainant's home. (R-V-68)(R-V-145) Thornton stated that Joseph Facundo was
responsible for hitting the complainant on the head and using a sword on him. (R-V-88, 105)
As this Court observed in Holiday, to be entitled to a jury instruction on the lesser
included offense of theft, there must be evidence proving Appellant committed a theft of
property, but did not injure or threaten the complainant in any way.
Appellant submits that in light of the conflicting evidence presented at trial, he was
still entitled to the submission of a jury instruction on the lesser included offense of theft.
POINT OF ERROR NUMBER TWELVE
THE TRIAL COURT ERRED WHEN IT COMMENTED ON THE WEIGHT OF
THE EVIDENCE IN THE INSTRUCTIONS GIVEN TO THE JURY CONCERNING
THE LAW OF CONSPIRACY (R-VI-4,5) (CR-1-240)
STATEMENT OF FACTS
The proposed jury instruction stated, in part: "By the term "conspiracy" as used in
these instructions, is meant an agreement between two or more persons with intent, that they,
or more than one of them, engage in conduct that would constitute the offense. An agreement
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constituting a conspiracy, if any, may be inferred from acts of the parties." (CR-1-240)
Appellant objected that the instruction, as worded, constituted a comment on the weight
of the evidence. (R-VI-4,5) The trial court overruled the objection. (R-VI-5)
ARGUMENT AND AUTHORITIES
Article 38.05 of the Texas Code of Criminal Procedure prohibits the trial judge, at
any stage of the proceeding previous to the return of the verdict, from making any remark
calculated to convey to the jury his opinion of the case.
Texas Penal Code Section 15.02 includes as part of the conspiracy definition, that (2)
he or one or more of them performs an overt act in pursuance of the agreement.
An impermissible comment in the judge's instructions to the jury is an especially
powerful message (whether intentional or not) to the jury about the court's view of the
evidence. In the instant appeal, the jury was free to find that because the parties may have
engaged in some conduct, that conduct alone was sufficient to establish the existence of a
criminal conspiracy. The jury was not charged in accordance with 15.02 (a)(2). Without a
more narrowly defined instruction, Appellant submits the trial court erred by commenting on
the weight of the evidence. As the court observed in Bachus v. State, 803 S.W.2d 402 (Tex.
App. - Dallas, 1991) jurors are prone to seize with alacrity upon any conduct or language of
the trial judge which they may interpret as shedding light upon his view of the weight of the
evidence, or the merits of the issues involved. Jones v. State, 788 Sw2d 834 (Tex. App. -
Dallas 1990, no pet.)
PRAYER FOR RELIEF
Appellant prays that after the Court consider the Points of Error raised herein, it will
reverse Appellant's conviction and order a judgment of acquittal. In the alternative, without
46
waiving the foregoing prayer, Appellant prays for a new trial. Further in the alternative,
Appellant requests that this Court reform the verdict I judgment to reflect the offense of
aggravated robbery or theft and order a new punishment hearing.
Respectfully submitted,
w~
SBOT: 09656300
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Tel: (713) 623-8312
Fax: (713) 626-0182
wthlaw@aol.com
Attorney for Tony Escobar
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief complies with Rule 9.4 of the Texas Rules of Appellate
Procedure. According to the computer program used to prepare this document, the word count
isl4,746. ~
Way T. 11
CERTIFICATE OF SERVICE
A true and correct copy of this Brief will be serv: d
Attorney's Office - Appellate Division.
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