Guillory, Patrick Sharard ( 2015 )

/63/S
ORIGINAL NO.
COURT OF CRIMINAL APPEALS
MAY 04 2015
TO THE
COURT OF CRIMINAL APPEALS
Abel Acosta, Clerk
OF TEXAS
**************************************************
PATRICK SHARARD GDILLORY
Defendant—Petitioner/ FILED IN
COURT OF CRIMINAL APPEALS
HAY 04 2915
vs.
Abel Acosta, Clerk
THE STATE OF TEXAS
Plaintiff-Appellee/
****************************************************
Petition for Discretionary Review in Cause number
1340306 (Trial) (14-13-01037-CR), In the 180th
District Court of Harris County,Texas
****************************************************
PETITION FOR DISCRETIONARY REVIEW
*****************************************
?q*Hkfo Uy,JLalU MMiUfr
PATRICK SHARARD GOTLLORY
Petitioner/Pro Se#1895126
Mc Connell Unit
3001 South Emily Drive
Beeville,Texas 78102
TABLE OF CONTENTS (TRAP 68.4(b))
Identity of parties and Counsel II
Index of Authorities III
Statement Regarding Oral Argument IV
Statement of The Case IV
Reasons for Granting Review IV
Statement of Procedural History V
Grounds for Review (68.4(G)) VI,VII
Argument 2
Appendix: Opinion of the Court of Appeals
ISSUE #1: 2
Petitioner argues that the evidence presented at trial is legally
insufficient to "prove" beyond a reasonable doubt that he is
guilty of Capital Murder.
ISSUE #2: 5/6
Petitioner argues that the trial court erred in denying him the
requested jury instruction and the omission was highly harmful
and prejudicial.
ISSUE #3: 7/8
Petitioner argues that the Court of Appeals erred in finding
petitioner was not entitled to an instruction on lesser-included
offense of felony murder.
ISSUE »4: T9;10
Petitioner argues that the trial court erred in denying him the
"requested" lesser-included offense of Aggravated Assault in the
jury charge.
ISSUE #5: 11-13
Petitioner argues that the trial court did err in "overruling"
petitioner's "objection" to the State's argument/request that
the jury do the right thing and show the Amaro family that there
is justice in our country/ it was (critically improper).
Inmate Declaration 14
Certificate of Service (TRAP 68.11) 14
Prayer for Relief (68.4(i)) 13
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex.R.App.P.38.2(a)(1)(A)
District Attorney Devon Anderson
District Attorney's Office
Harris County
1201 Franklin St. Ste 600
Houston/ TX 77002
Assistant District Attorney Mary HcFaden
at Trial District Attorney's Office
Harris County
Assistant District Attorney Carly Dessauer
on Appeal District Attorney's Office
Harris County
Appellate Division
Petitioner Patrick Sharard Guillory
McConnell Unit
3001 S. Emily Drive
Beeville/ TX 78102
Counsel?, a t TSFrial Charles A. Brown Jr.
708: Maini Streetv-Suite 790eS
Houston/ TX 77002
Counsel on Appeal Wayne T. Hill
4615 S.W- Freeway, Ste 600
Houston/ TX 77027
Trial Judge Honorable Larry Gist
180th District Court
Harris County Criminal Justice
Center
1201 Franklin Street/ 18th FL
Houston, TX 77002
li
INDEX OF AUTHORITIES
CASES PAGES
Albiar v. State, 739 S.W.2d 360 (Tex.Crim.App.1987) 12
Burks v. United States, 437 U.S.1.16.98 S.Ct.2141,57 3
L.Ed-2d 1 (1978)(emphasis in original):Garrett v.
State, 749 S.W.2d 784,792 (Tex.Crim.App.1986)
Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App.2000) 9
Cortez v. State, 683 S.W.2d 419 (Tex.Crim.App.1984) 13
Floyd v. Meachum, 907 F.2d 347,354-55 (2nd Cir. 1999) 13
Garrett v. State, 851 S.W.2d 853,859-60 (Tex.Crim.App. 11
1993)
Goldsmith v. Smith, 2014 WL 261007 (Tex.App.Hou.[14th 9
Dist. ] .2014)
Gomez v. State, 737 S.W.2d 315 (Tex.Crim.App.1987) 6
Hall v. State, 940 S.W.2d 137,139-40 (Tex.App.-Amarillo. 3
1998)(pet. ref.): Simmons v. State, 2009 WL3817582.at*3
(Tex.App.-Amarillo.November 16, 2009)(pet. ref.)(Not
'7-designated' for1 pufol ication) see also Conner v. State, 67
S.W.3d 192,197 (Tex.Crim.App.2001)
Herbert v. State, 827 S.W.2d 507,509 (Tex.App.-Houston 2
[1st Dist.].1992)(no pet.)
Hill v. State, 30 S.W.3d 505 (Tex.App.-Texarkana.2000) 8
Johnson v. Tenth Judicial District Court of Appeals at IV
Waco, 280 S.W.3d 866,874 (Tex.Crim.App.2008)
Langford v. Fourteenth Court of Appeals, 847 S.W.2d . IV
581,585 (Tex.Crim.App.1993)(emphasis added)
Larry v. State, 15 S.W.3d 581,585 (Tex.App.-Amarillo. 2
2000)(Pet. Ref.)
Patterson v. State, 942 S.W.2d (Tex-App.-Texarkana .1997) 8
Perez v. State, 332 S.W.3d 700,702 (Tex.App.-Amarillo. 2,4
2011 )(pet. if il£d) citing: Dewberry v. State, 827 S.W.3d
735,740 (Tex.Crim.App.1999)(cert.den.) 529 U.S. 113,
120 S.Ct.2008, 146 L. Ed. 2d 958 (2000)
Richardson v. State, 257 S.W.2d 308 (Tex.Crim.App.1953) 13
Smith v. Flack, 728 S.W.2d 784,788 (Tex.Crim.App.1987) IV
Smith v. State, 996 S.W.2d 1 (Mo.App.1997)(9 pages) V
in
INDEX OF AUTHORITIES
CASES PAGES
Standerfer v. State 11
Temple v. State, 390 S.W.3d 341,360 (Tex.Crim.App.2013) VII
Thacker v. Dretke, 396 F.3d 607 (5th Cir. 2005), Winship 11
397 U.S. 358,364 S.Ct. 1068, 25 L. Ed. 2d 368 (1970)
Thompson v. State, 697 S.W.2d 413,416 (Tex.Crim.App.1985); 6
Michel v. State, 834 S.W.2d 64,67 (Tex.App.-Dallas.1992)
(no pet. )
United States v. Brady, 397 U.S. 742, 90 S. Ct. 1463, 25 5
L. Ed. 2d 747 (1970)
U.S. v. Gallardo-Tropero, 185 F.3d 307,319-20 (5th Cir. 13
1999)
U.S. v. Mareno, 185 F.3d 465 (5th Cir. 1999) 8
U.S. v. Martinez!-Larraga, 517 F.3d 256 (5th Cir. 2008) 11
Wooley v. State, 273 S.W.3d 260,268,nl2 (Tex.Crim.App.2008) 3
Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App.2013) 6
Tex. Code of Criminal Proc.
Article 36.14 8
Article 36.15 9
Article 38.14 6
Tex. Constitution
Article 5§5 V
Tex. Penal Code(s)
7.01 7
7.02 (a) Criminal Responsibility 5
19.03 10
19.03 (a)(2) VI
29.02 (2) Vernon Supp. 2010 3
Tex. Rules of App. Proc.
68.1 1
iii(b)
STATEMENT REGARDING ORAL ARGUMENT (TRAP 68.4(d))
Petitioner is not requesting oral argument in this case
unless the respondents request oral argument in this matter.
STATEMENT OF THE CASE (TRAP 68.4(e))
Petitioner was indicted for the offense of Capital Murder.
The indictment alleged that petitioner intentionally caused the
deathr.of Raul Amaro while in the course of committing or attempt
ing to commit the robbery of Raul Amaro. (CR-I-7) Petitioner
entered his plear; of "not guilty" and was tried by a jury. The
jury found the petitioner "guilty" as charged in the indictment.
(CR-I-307) The petitioner was sentenced to life without parole -i
in the Texas Department of Criminal Justice - Institutional Divi
sion. (CR-I-308) A Motion for New Trial was filed in this matfe^:
ter. (CR-I-321) And the petitioner gave Notice of Appeal in this
case. (CR-I-311) The Fourteenth Court of Appeals affirmed the
judgment in a Non-Published Opinion on February 10/ 2015/ in No.
14-13-01037-CR.
REASONS FOR GRANTING REVIEW (TRAP 66.3(a))
Petitioner avers that the Court of Appeals' decision is in
direct conflict with another Court of Appeals' decision on the
same issuer which involves matters of criminal law. Smith v- Flack
728 S.N.2d 784, 788 (Tex.Crim.App.1987) "Criminal Law Matters"
as used in Tex.Const-Article.5§5, also encompasses at least "all
legal issues arising directly out of a criminal prosecution.
Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581/ 585 (Tex.
Crim.App.1993)(emphasis added) The Court of Criminal Appeals
construes the phrase so as to "keep the lines of direct appellate
review open, so that the legal issues can be confronted directly
and finally resolved..." Johnson v. Tenth Judicial District Court
of Appeals at Waco, 280 S.W.3d 866/ 874 (Tex.Crim.App.2008)
Petitioner Guillory shows this Honorable Court that the Four-rf ^:n
IV
teenth Court of Appeals decision is in conflict with the Court
of Appeals' decision in Jackson County. Smith v- State, 966 S.W.
2d 1 (Mo.App.1997)(9 pages): Defendant was convicted in the
Circuit Court of Jackson County... of First Degree Murder and
Armed Criminal Action, and he appealed. The Court of Appeals...
held that: (1) defendant was entitled to instruction on lesser-
included offense of Second Degree Murder. (2) The State failed
to establish what evidence supported the findings that defendant
committed the offense. (3) Order granting Certificate of Appeal
ability (2 pages) upon de novo review of the record and peti^i
tioner's motion, the court granted review on whether petitioner
received his due process right to a fair trial due to counsel's
failure to request a jury instruction on the charge... The judg
ment of the trial court- is reversed and remanded.
Petitioner Guillory requests that this Honorable Court
reverse and remand on the merits of the issues presented on his
Petition* for Discretionary Review.
STATEMENT OF PROCEDURAL HISTORY
On November 28th, 2011, at approximately 7:40j*p.m., Miguel
Frias went to a Conoco station.(R-III-32) After pumping gas,
Frias got back in his vehicle with a friend. Frias then heard
four gunshots. (R-III-35) Frias thought the gunshots; came from
the back of the store. He saw people running from the side and
the last person he saw running collapsed. (R—111-37) He desrorx
scribed the individual who collapsed as a little bit older man
who he had never seen before. (R-III-41) Before collapsing, the
man was hunched over with his hand on his left side. (R-III-43)
Frias called 911 and was following their instructions in an
effort to assist the fallen man. (R-III-44,45) The man appeared
to be going in and out of consciousness when Frias was trying
to ask him questions. (R-III-46,47) Frias described the man's
answer; as "mumbling". (R-III-48) Frias was "unable to actually
tell the police who shot the complainant [Raul Amaro]." (R-III-
51) After hearing the gunshots, Frias said people were running
from the side, people were running from inside coming out of the
store and getting into their cars and leaving, people were trying
to get the heck out of there. (R-III-61) FRtAS ACKNOWLEDGED THAT
HE WAS UNABLE TO PLACE PETITIONER AT THE SCENE THAT EVENING. (R-
111-64)
[Officer Jose Gomez], with the Harris County Sheriff's De
partment, was working patrol on November 28, 2011 when he reec';•
ceived a dispatched call to 13102 Bissonet. (R-III-68) After
arriving, Gomez noticed a Hispanic male lying on the ground and
another Hispanic male putting pressure on the man's left side.
(R—III—72) Gomez attempted to speak to the man on the gound
(complainant), who Gomez believed was about to die. (R-III-77)
Gomez stated that the complainant told him that it was a black
male and that the black male was trying to rob him and then the
male shot him. (R-III-78) Gomez also spoke with two other indi
viduals at the scene (Alex Flores and Ivan Martinez). (R-III-81)
"GOMEZ DESCRIBED BOTH INDIVIDUALS AS BEING PRETTY INTOXICATED"
(R-III-81)
During cross-examination, Gomez acknowledged that he did not
ask the complainant who was with him. Gomez also failed to de4c.<
termine how many people came at the complainant. The complainant
was unable to tell Gomez what his assailant was wearing. (R-III-
86) In sum, the only thing that the complainant was able to say
was that a Black male< attempted to rob him and shot him. (R-III-
86) Further, the complainant was unable to say "whether he was
with Flores and Martinez that night." (R-III-87)
GROUNDS FOR REVIEW (TRAp 68.4(G))
ISSUE #1; There was [N]o positive identification that- petitioner
Guillory was the person who shot the complainant, or
that '''he" took 'part' 'in 'this' shooting .''Vhe States Wit
ness "Vasquez" could not positively identify petition
er as the shooter or that he took part in this crime.
ISSUE #2: Petitioner shows this court facts that there is [N]o
Evidence that a crime was committed by him, or a mur
der was committed during the course of a robbery. The
State showed clear evidence that the victim "Amaro" v
was found to have a large amount of money still inside
VI
his wallet.
ISSUE #3: Petitioner argues that the Court of Appeals erred in
finding petitioner was not entitled to an instruction
on the lesser-included offense of Felony Murder, evenn
though the State failed to prove every element of
Capital Murder beyond a reasonable doubt.
ISSUE #4: Petitioner argues that the trial court critically <•:
erred on error #3; and; #4 in denying his jury instruc
tions where the evidence strongly showed the State had
failed to establish beyond a reasonable doubt that
petitioner committed this crime and where the evidence
o clearly shows that the State's witness knew of the
criminal wrongdoings "before" arriving at the store.
(Proving the accomplish witness argument)
ISSUE #5: The State made an improper plea for law enforcement,
requesting the jury to place.themselves in the shoes
of the victim's family when deliberating the issue of
guilt or innocence.
Petitioner argues that to obtain a conviction for Capital
Murder the State was required to "prove" that petitioner murdered
Amaro and that the murder was intentionally committed during the
course of a robbery. Tex.Penal Code.§ 19.03(a)(2) Petitioner con
contends that his conviction;.should be set aside because there is
no evidence that proves "he" (1) murdered Amaro, or that "he" (2)
committed a robbery or that a robbery even took,>place. Petit-:'r-n
tioner understands that this court, in reviewing the legal suffi
ciency of the evidence, must examine all of the evidence in light
most favorable to the verdict and determine whetherba rational
trier of the facts could have found the essential elements of the
offense beyond a reasonable doubt. Temple v. State, 390 S.W.3d
341,360 (Tex.Crim.App.2013) The evidence is insufficient when
the record contains no evidence or merely a "modicum" of evidence
as shown here in this case. (See Claim No. One at P. #2)
VII
NO.
TO THE
COURT OF CRIMINAL APPEALS
OF TEXAS
**************************************************
PATRICK SHARARD GUILLORY
Petitioner,
VS
THE STATE OF TEXAS
Respondent,
*****************************************************
Petition for Discretionary Review in Cause number;
14^-13^01037-CR, From the 180th District Court in
Harris County/Texas,under cause no.1340306.
*****************************************************
PETITION FOR DISCRETIONARY REVIEW
********************************
TO the Honorable Judges of the Court of Criminal Appeals:
COMES NOW,Patrick Sharard Guillory,and Submits this petition
under TEX. R.APP. P.68.1 in support of this request for remand of
this cause to the court of appeals for new analysis.
CLAIM NO. ONE FOR REVIEW
Whether the evidence is legally insufficient as a matter of law
to sustain peti.CiTojnex""-3B conviction for the offense of Capital i';,r
Murder.
ARGUMENT FOR RECONSIDERATION
Underlying Law
The well-known standard of review of legally insufficient
evidence claims asks "whether, after viewing the evidence in Li. ,))
light most favorable to the verdict, any rational trier of the
facts could have found the essential elements of the crime
beyond a reasonable doubt. Larry v. State, 15 S.W.3d 581,585
(Tex.App.-Amarillo, 2000, pet. ref.) A reviewing court must
evaluate all of the evidence in the record, both direct and cir
cumstantial, whether admissible or inadmissible. Perez v. State,
332 S.W. 700,702 (Tex.App.-Amarillo 2011,pet. filed), citing
Dewberry v. State, 4 S.W.3d 735,740 (Tex.Crim.App.1999), Cert-
denied, 529 U.S. 1131, 120 S.Ct.2008, 146 L. Ed. 2d 958 (2000)
Although this is generally an easy standard to meet, where the
uncontradicted evidence reflects a defense. No rational trier of
the facts could find petitioner guilty beyond aoreasohable'odbubt ,
we must reverse. Herbert v. State, 827 S.W.2d 507,509 (Tex-App.
-Houston [1st Dist]-1992, no pet.) Petitioner Guillory shows
this court clear facts within the record that neither of the
Stater'.s witnesses positively identified him as being the person
who shot "Amaro" or that he committed "any" robbery during this
offense. (R-III-51) The State's witness, Frias, was unable to
actually tell the police who shot the complainant [Raul Amaro].
(R-III-86) Which states the complainant as well as Frias was m
unable to tell officer Gomez what his assailant was wearing.
The record clearly reflects that the only "alleged" witnesses
were two individuals, Alex Flores and Ivan Martinez, whom Offi
cer Gomez spoke with at the scene. (R-III-81) Gomez described
bothoindrintfidualsj as; beingm'fpretty intoxicated. " (R-III-82)
Therefore, the record stands as being established on circumstan
tial evidence presented during petitioner's trial and in light of
2.
the evidence as being insufficient to prove Capital Murder.
Some authorities suggest a finding of insufficient evidence that
involves the Appellate Court's substitution of it's own judgment
for that of the jury, other cases include those from the Court of
Criminal Appeals and the United States Supreme Court dictating
otherwise; such an appellate reversal means;:that the government's
case was lacking that it should not have even been submitted to
the jury. Burks v. United States, 437 U.S.li 16, 98 S.Ct.2141,
57 L. Ed. 2d 1 (1978),(emphasis in original); Garrett v. State,
749 S.W.2d 784, 792 (Tex.Crim.App.1986) Consequently, no en
croachment oh the jury's role is entailed and legally insuffi
cient evidence prompts reversal and acquittal rather than a new
trial. Wooley v. State, 273 S.W.3d 260, 268, n.12 (Tex.Crim.App.
2008)
Where the indictment accuses the defendant of Capital Murder
via murder in the course of committing or attempting to commit
the offense of robbery, one essential element is that the defen
dant "intended to obtain or maintain control of the decedent's
property prior to or during the killing." Hall v- State, 940 S.W.
2d 137, 139-140 (Tex.App.-Amarillo 1998,Pet.ref.) Simmons v.
State, 2009 WL 3817582, at*3 (Tex.App.-Amarillo, November 16,
2009 pet.ref.) (Not designated for publication); Conner v. State,
67 S.W.3d 192, 197 (Tex.Crim.App.2001) Robbery requires proof of
either bodily injury or placing of another in fear of imminent
bodily injury or death. Tex. Pen.. Code Ann.§Art 29.02(;2)Vernon ?: ,;: :
Supp.2010) The State "never" proved Guillory committed either.
APPLICATION OF LAW TO FACTS
The only evidence the State relied on to attempt to show
intent of petitioner was the testimony of Roy^Vasquez-. Who testi
fied that he picked up two people in the neighborhood and offered
them a ride. Vasquez stated that he was talking on the phone
when the two entered his car. (R-III-139) Vasquez [made] several
statements that did not positively show that petitionerocommit-
ted this offense, not one thread of evidence that proves intent*
3.
or the state of mind of petitioner to commit this offense.
Petitioner shows that nothing in the record or anything
stated by the State's witness indicated he, the petitioner,
formed the intent before, during, or after the murder or of tak
ing anything by force. Iftnfacty.'".thecpetitioneE was never posi
tively identified at the convenience store during the time of
this offense. Therefore, all the testimony by the State's wit
ness is clearly inadmissible if taken into account Perez, 332
S.W.3d at 702 and therefore unsupported by any evidence to
sustain this conviction against petitioner. The testimony of.
Amaro being robbed - if indeed he was. The evidence that he was
robbed is again unsupported by the record. The Crime Scene Unit
Deputy, Gary Clayton, established that $304.00 was found still
inside the complainants wallet at the scene. (R-III-127) Clayton
failed to collect clothing from the complainant for forensic
testing. (R-III-128) There is no evidence that supports this
conviction that establishes that petitioner committed this ofkn
fense. There is no physical evidence, forensic or biological. ;?
evidence, no positive eyewitness identification that proves "be
yond a reasonable doubt" that petitioner committed this crime or
was a part of> the offense. Th^; State prosecutor "failed" to es
tablish that petitioner formed "intent" to commit this act or was
in "any way a party." The State can not shift the burden on the
defense to prove otherwise, because the State and the State only
has the burden to prove a defendant guilty of an offense via the
jury for guilt and innocence on the presentment of evidence.
Therefore, the appropriate remedy is to vacate the Trial Court's;,
judgment and enter an Order of Acquittal.
CLAIM NO. TWO FOR REVIEW:
The Trial court erred when it denied petitioner's request for an
accomplice witness jury charge. (R.V.5)
STATEMENT OF FACTS "RESUBMITTED" UNDER POINT OF ERROR NO. TWO
At the conclusion of the evidence, the trial court submitted
it's proposed jury charge to the respective parties and asked if
there were any objections. (R—V—5) The State voiced no object!
tions. Petitioner's counsel objected to the lack of an accom
plice witness charge. (R—V—5) The trial court overruled peti
tioner's objection.
ARGUMENT FOR RECONSIDERATION
Petitioner, Patrick Guillory, argues that the accomplice
witness jury charge was "critically" necessary to establish that
there was other evidence that tended to connect Vasquez as a
party to this offense. Therefore, the trial court erred by over
ruling petitioner's request. Guillory shows this Honorable Court
that the State trial court made and unreasonable determination in
it's decision to overrule the defense's request for an accomplice
witness jury charge. This is a violation of petitioner's due ;
process right to a full and fair trial. United States v. Brady,
397 U.S. 742, 90 S.Ct.1463, 25 L.Ed-2d 747 (1970) The record
clearly reflects "supportable evidence" that tends to connect
Rogelio Roby Vasquez as an accomplice. Tex.Penal Code.Sec.7.02(a)
[Criminal Responsibility for the conduct of another]...(a) A
person is criminally responsible for an offense committed by the
conduct of another "If"; (3) Having a legal duty to prevent the
commission of the offense and acting with intent to promote or
assist it's commission, he fails to make a "reasonable effort" to
prevent the commission of the offense. Petitioner contends that
the law is well settled in Texas that in determining whether a
defendant participated in an offense as a party; the court may
examine the events before, during, and after the commission of
the offense and may rely on actions by the defendant that shows
5.
an understanding and common desigh to commit the offense. Thomp
son v. State, 697 S.W.2d 413,416 (Tex.Crim.App.1985); Michel v.
State, 834 S.W.2d 64,67 (Tex.App.-Dallas.1992, no pet.) Vasquez
stated in open court that "he" was well aware of Tyreon Young's
plan to commit a robbery [Hit a LickU as Vasquez drove to the
Conoco location. Vasquez testified that the individual in the
back set displayed a revolver to Vasquez. Therefore, the evidence
presented herein show's that Vasquez was in fact a party to this
offense. He failed to call 911 or stay at the location until the
police arrived, if indeed he was not a party. Article 38.14 of
the Texas Code of Criminal Procedure clearly provides that a
conviction can not be had upon the testimony of an accomplice
unless its corroborated by other evidence tending to connect the
defendant with the offense and the corroboration is not suffi
cient if it merely shows the commission of the offense.
An accomplice witness is one who participates before, during':
or after the crime. Gomez v. State, 737 S.W.2d 315 (Tex.Crim.App.
1987) If a "prosecution witness" is an accomplice, the trial c;,<••
court is under a legal duty to instruct the jury accordingly.
Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App.2013) According to
Vasquez's own testimony ffhe admitted" that he was aware of the
plan to rob someone at the Conoco store oh November 28th, 2011.
The record and statements clearly reflect that Guillory's Consti
tutional right to a full and fair defense was violated U.S.C.A.
§6. The trial court's decision to overrule the objection "cre.T-
ated" social harm within the proceeding and caused the jury to be
withheld critical information violating petitioner's due process
right to a fair trial. Guillory asserts that the evidence of
whether Vasquez was a "key" to this offense relied upon the re
quested jury charge being placed before the jury. Therefore, the
jury was unable to hear this evidence that would have established
that Vasquez played an important role in this offense and revert;
sal is required. PejtfLtioner asks that this Honorable Court re
verse ttheccTrial-Courtssn decision and remand for a new trial on
the merits. ,
CLAIM NO. THREE FOR REVIEW:
The Court of Appeals erred in finding petitioner was not entitled
to an instruction on the lesser—included offense of Felony Murder
EVIDENCE OF THE FACTS
In the above claim petitioner referenced back to point of
error one and two, in addition to the objection and the trial
court's failure to submit a jury instruction on the lessor-inclu
ded offense of murder. The jury was instructed only on the law
pertaining to the offense of Capital Murder. (CR-I-298-306) The
evidence clearly shows, as noted above, evidence presented by the
State "failed" to show the commission of Capital Murder. Without
direct proof in the record of what took place behind the Conoco
store on November 28, 20(11, the trial court instructed the jury
that it could only find petitioner guilty or not guilty.
ARGUMENT FOR RECONSIDERATION
The evidence presented during trial and within the petition
herein, raises questions about who actually shot and killed Raul
Amaro. There were no eyewitnesses to the shooting (even taking
into consideration that clearly in the record the mumbling refer
enced to two black males). (R-III-46-48,51) There was no evi- u,
dence establishing how many people total were behind the Conoco
store on November 28, 2011. People often congregated on the side
of the store and drank beer. (R-III-29) The area behind the
store was inhabited by a large group of homeless people. (R-III-
98) The record reflects that the "only" person identified as
having "any" physical contact with anyone as he was running from
behind the store was Tyreon Young. Petitioner establishes that
the State has not proven every element beyond a reasonable doubt
to prove that he is guilty of Capital Murder. A Ajury instruction
was warranted to show petitioner's state of mind.
Petitioner argues that the trial court committed fundamental
error by delivering a charge to the jury that impermissibly ex
panded the statutory authority to find a defendant guilty beyond
7.
a reasonable doubt and if so, finding a defendant guilty of a
lessor-included offense of murder. The law is well-established
that must prove knowingly and intent and all elements "must" be
proven to produce a conviction. Anything less relieves the State
of its burden to prove every element of its case beyond a reason
able doubt. Tex.Penal Code.Ann.art.§6.03(a) Intent or knowingly
are essential elements of "murder" as alleged and must be proven
beyond a reasonable doubt. Patterson v. State, 942 S.W.2d (Tex.
App.-Texarkana.1997) According to Vernon.Ann's.Tex.Code.Crim.
Proc.Art.36.14, a jury charge is fundamentally defective if it
authorizes a conviction without requiring the jury to find (all)
the elements of an offense beyond a reasonable doubt. A jury
charge must be legally accurate and factually supportable,
courts may (not) instruct the. jury with a charge that lacks an
evidentiary predicate. U.S. v. Mareno, 185 F.3d 465 (5th Cir. '<
1999) The court's charge clearly excluded a lessor-included
offense paragraph and it's well within the record that there was
no physical or biological evidence that connected petitioner to
this offense.
Petitioner avers that moreover special instruction charge of
the .court) relieved! the jjurycof its' duty when:it:addsoor^excludes -
The trial court must produce a correct jury charge that does not
violate the rights of the accused to have a full and fair oppor
tunity to present a defense and if the prosecution fails to prove
an element of that charge the jury has a legal duty to decide on
a lessor-included offense then that of the primary charge. Hill
v. State, 30 S.W-3d 505 (Tex.App--Texarkana.2000)
This court should concur with the above cited precedents i:
that the trial court exclusion of a lessor-included offense
instruction impermissibly expanded the statutory authority of the
definition required to prove every element, thus it caused egre
gious harm. Petitioner requests that this court reverse and re--
mand for a new trial on the facts presented herein.and any other
relief deemed by this Honorable Court.
8.
CLAIM NO. FOUR FOR REVIEW:
The trial court erred when it denied defendant's request for a
lesser-included offense of aggravated assault in the jury charge.
(R-V-5)
FACTS FOR RECONSIDERATION
Petitioner again reincorporates the statement of facts in
claim numbers one, two, and three to support his contensions in
his argument and authorities presented herein for this court's
consideration and evaluation of this point of error no. four.
ARGUMENT FOR RECONSIDERATION
Petitioner argues that within the court's charge presented
to the jury during closing argument, petitioner's trial counsel
objected to the trial court overruling his objection to an im
proper jury charge that excluded a lesser-included offense of
aggravated assault. (R-V-5) The jury was only instructed on the
law pertaining to Capital Murder. (CR-I-298-306) Petitioner
Guillory shows as noted on point of error number three; Article
36.15 of the Code of Criminal Procedure; provides for the sub
mission of a jury instruction and objection to the trial court's
failure to submit a proper charge to the court.
Petitioner argues that during his criminal trial the proses,
cution failed to establish whether petitioner was the person who
shot and killed Raul Amaro on November 28, 2001 and the record
clearly reflects that the burden was and remains on the court to
prove all elements that petitioner Guillory is guilty of Capital
Murder. The fact remains that the jury was not charged with the
required lesser-included offense charge. Petitioner contends
that the law is well settled in that aggravated assault is a
lesser-included offense of murder and therefore of Capital Murder
Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App.2000) Petitioner
re-establishes in the instant appeal the holding in Goldsmith v.
State, 2014 WL 261007 (Tex.App.Hou.[14th Dist.]-2014) that
aggravated assault by threats did constitute a lesser-included
9.
offense of Capital Murder under the facts of the case. Peti
tioner argues that the trial court erred in not submitting a
lesser-included jury instruction on aggravated assault when
petitioner's counsel objected to the trial court's failure to do
so. Again Guillory shows this Honorable Court clear facts within
the record, as noted above.! in point of error number three above.
There was no evidence presented at trial to establish that the
individual who shot and kill Raul Amaro did so with the specific
intent to cause his death as required by Section 19.03 of the
Texas Penal Code. Nor was there"any" evidence that tied peti^i n
tionemas being the person who shot and killed the complainant
Amaro. The critical error that is in question here is was the
petitioner "denied" a Constitutional right when the jury was only
given the option of finding petitioner "guilty" or "not guilty"
without consideration of a lesser-included offense, as also ad
dressed in point of error number three. Where the elements of an
offense remains in doubt, but the defendant is [clearly not
guilty] of the greafcero6.f£ense.. The trial court was in error when
it denied the petitioner the requested jury charge. The jury,nas
being the judges of the facts,presented, was clearly denied crit
ical information that would have made a difference in this trial.
Therefore, without the aggravated assault charge, the jury was
denied the opportunity to find petitioner guilty of something
lesser than Capital Murder. Because of the trial court's failure
to so charge the jury, petitioner suffered some actual harm.
There can be no other remedy but to reverse the trial court's:
judgment and remand the case back for a new trial and any other
relief deemed by this Honorable Court.
VciMdk MtrfM 2Utoc*396 F.3d
607 (5th Cir. 2005), Winship, 397 U.S. 358,364, 90 S.Ct 1068, 25
L. Ed. 2d 368 (1970) That similarly in jury trials the Sixth
Amendment requires that same care.
Moreover, in Standerfer v. State a prosecutor is not enti
tled to commit a juror on whether they should convict a defendant
based on their personal interest in any given case. Furthermore,
a venireman is not subject to challenge for cause merely because
it would (require more evidence then the legal minimum.) Garrett
v. State, 851)S.W.2d 853,859-60 (Tex.Crim.App.1993)
Petitioner contends that when certain rights are clearly
violated in open court there can be no other remedy but to re
verse the judgment of the trial court, because (1) the law is
clear that in (closing argument) a prosecutor may not personally
request that the jury decide the issues of the case based on
personal feelings and not on the evidence presented, or (2) plea
for law enforcement/the victims family on personal interest, in
11.
so requiring a harsher sentence or lead the jury to believe that
the State's argument is the truth rather than allowing the jury
to decide whoser rdtghtoor, wrong. (3) Place the [P]restige of the
government in front of the jury to consider the facts of what
actually happened. During trial the plea by the State prosecutor
violated a protected right of the accused, in the instant case
the prosecutor made the following statements which ultimately
tainted the minds of the jury. It is well established that the
trial court instructed the jury as follows: Your sole duty at
this time is to determine the guilt of the defendant under the
indictment in this cause and restrict your deliberations soley to
the issue of guilt or innocence of the defendant." (CR-I-305,306)
The trial court also instructed the jury that the prosecu
tion had the burden of proving that the defendant is guilty and i
it must do so by proving each and every element of the offense
charged beyond a reasonable doubt and if it failed to do so, they
must acquit the defendant. (CR-I-304)
Due Process Violation:
During the prosecutor's final summation to the jury, she
stated: Please, please, go back there, do the right thing show
the Amaro family that there is justice in our country. Show them
we are willing to do the right thing. We are willing to hear
and -"(R-V-41) Petitioner's counsel lodged his objection that the
prosecutor was making an inappropriate plea for law enforcement.
(R-V—41) The trial court overruled petitioner's objection. (R-
V-41) Petitioner Guillory re-establishes his argument and show's
this court that a jury argument is permissible if it falls into
one of the following categories: (1) Summation of the evidence,
(2) Reasonable deduction from the evidence, (3) Answer to argu
ment of opposing counsel, and (4) PLEA FOR LAW ENFORCEMENT.
Albiar v. State, 739 S.W.2d 360 (Tex.Crim-App-1987) Guillory
further restates the citing within the record that it has long
been the law of this State that the law provides for and presumes
that the accused person will receive a fair trial, and a fair
trial can not be had if it is not free from improper jury argu-
12.
ment. Richardson v. State, 257 S.W.2d 308 (Tex.Crim.App.1953)
Further an accused person is entitled to have his guilt or
punishment determined without reference by any outside influ
ence. Cortez v. State, 683 S.W.2d 419 (Tex.Crim.App.1984), Floyd
v. Meachum, 907 F.2d 347,354-55 (2nd Cir. 1999) Prosecutor's
request that the jury consider the prosecutor's own integrity
and ethics before deliberating on the evidence was improper
because "credibility voucher" invited the jury to view the ver
dict as indication of the prosecutor's integrity rather than an
assessment of guilt or innocence based on the evidence presented
at trial. U.S. v. Gallardo-Tropero, 185 F.3d 307,319-20 (5th Cir.
1999) Prosecutor's closing argument "asking "r'Jdoyyout think that
agents for the federal government and a prosecutor for the fed
eral government, for the [U.S.A.] are going to risk their careers
to commit perjury was improper statements.
Petitioner argues that just as in the case of U.S. v. Gall
ardo-Tropero, the State prosecutor made "improper request" to
the jury that was highly improper and violated the rights of the
accused by stating during final summation to the jury, the pros
ecutor stated: Please, please, go back there, doithe right thing
show the Amaro family that there is justice in our country, show
them that we are willing to do the right thing. We are willing
to hear and -" (R-V-41)
Petitioner's counsel lodged his "objection" that the prosecu
tor was making an inappropriate plea for law enforcement, there
fore just as the cited cases above, petitioner requests that this
Honorable Court reverse and remand the case for a new hearing.and
"any" other relief deemed by this Court.
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED, Petitioner prays that after this
Honorable Court reviews the points of error for reconsideration
within his petition, and enter a Judgment of Acquittal on this
matter.
T/vlxM ULfl,M Mktw
Patrick Sharard Guillor/
Petitioner,Pro Se#189512
Mc Connell Unit
3001 S.Emily Drive
13
INMATE DECLARATION
I, Patrick Sharard Guillory, am the petiioner and being present
ly incarcerated in W.G. McConnell Unit, declare under penalty of
perjury that, according to my belief, the facts stated in the
above Petition for Discretionary Review are true and correct.
/S/JVIWL yitU 2015
laiJVc^ JAW Aalfeffr
CERTIFICATE OF SERVICE
I, Patrick Sharard Guillory, certify that a true and correct copy
of petitioner's Petition for Discretionary Review has been served
upon the Clerk of the Court of Criminal Appeals, who is requested
to forward a copyyto the State prosecuting attorney as required '•
by TRAP 68.11.
Executed £C\ day ofJffiM 2015
CC: Clerk of the Court - Abel Acosta
Coert of Criminal Appeals
J P.O. Box 12308, Capitol Station
Austin, Texas 78711
ORDER OF THE COURT
On this date cameito be heard petitioner's Motion for
Suspension of Copies pursuant to TRAP 9.3(b) and it is hereby
ordered that this motion be GRANTED / DENIED .
Executed_ day of 2015
Presiding Judge
February 10, 2015
JUDGMENT
©Ije JHaurieenit? Court of Appeals
PATRICK SHARARD GUILLORY, Appellant
NO. 14-13-01037-CR V.
THE STATE OF TEXAS, Appellee
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance.
Affirmed and Memorandum Opinion filed February 10,2015.
In The
Jffourteentty Court of Appeals
NO. 14-13-01037-CR
PATRICK SHARARD GUILLORY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1340306
MEMORANDUM OPINION
In this appeal from a conviction for capital murder, we consider whether the
evidence is legally sufficient to support the conviction, whether the trial court erred
by declining a request for multiple jury instructions, and whether the trial court
erred by overruling an objection to an improper closing statement. We conclude
that the evidence is sufficient and that there is no reversible error as to each
remaining issue. We therefore affirm the trial court's judgment.
BACKGROUND
Raul Amaro, the complainant in this case, died from a single gunshot wound
to the chest. The shooting happened just outside of a convenience store in
southwest Houston. Authorities came to suspect that appellant was the shooter, and
that he had murdered Amaro during the course of a robbery.
The case against appellant was built on circumstantial evidence. One key
witness was Rogelio Vasquez, who testified that he had driven two men to the
convenience store on the night of the shooting. Vasquez said that he picked the two
men up after they had flagged him down on the side of the road. Vasquez
recognized one of the men as Tyreon Young, who was the relative of a former
classmate. Young climbed into the front passenger seat, and the other man sat in
the back. Vasquez did not know the backseat passenger, and at trial, Vasquez could
not offer any testimony as to whether the backseat passenger was appellant.
(Darius Rose, another witness whose testimony is more fully discussed below,
would later identify appellant as Vasquez's backseat passenger.)
Vasquez offered to take his two passengers to the convenience store, where
he intended to buy a beer. On the way there, Young asked Vasquez where he could
"hit a lick," which is street slang for robbing someone. Vasquez testified that the
backseat passenger added, "Yeah, we need some money." The backseat passenger
pulled a gun out of his jacket, which Vasquez believed to be a revolver. Vasquez
told the men not to rob anyone at the convenience store because his dad would
often drink there and he knew the regular customers. The men responded that they
would try to rob someone at a nearby restaurant instead.
When they arrived at the convenience store, Vasquez and his passengers
parted ways. Vasquez opened the trunk of his car to inspect his stereo system,
which he thought was malfunctioning. Vasquez saw his passengers approach Rose,
2
who had just exited a car in a nearby parking space. After a short while, Vasquez
testified that he heard four shots rings out in the vicinity. Vasquez looked across
the parking lot in the direction of the shooting and saw a portion of the gunman's
arm, but not the rest of his body, which was apparently obstructed from view.
Miguel Frias was pumping gas when the shots were fired. He looked up and
saw Amaro run out from the side of the convenience store and then collapse on the
ground. Frias approached Amaro, who said that "two black guys [had] robbed
him." Both Young and appellant are African Americans, but Frias saw neither of
them on the night of the murder.
Alex Flores and Ivan Martinez were drinking with Amaro shortly before the
shooting occurred. Neither man testified at trial, but their witness statements were
retold through a sheriffs deputy who had interviewed them on the night of the
incident. According to the deputy, Flores and Martinez said that two robbers came
from behind the convenience store and attacked Amaro, who tried to fight back.
The robbers reportedly knocked Amaro down, then dragged him to a telephone
pole. Martinez tried to intervene, but he and Flores ran away from the fight
because one of the robbers began shooting at them.
James Hanson arrived at the convenience store moments after Vasquez.
Hanson and Vasquez were familiar with each other, and they exchanged greetings
as Vasquez was inspecting his stereo system. When Hanson turned to head inside
the convenience store, he observed Young, another familiar face, fighting with an
Hispanic male around the corner. Hanson testified that Young pushed the other
man down, then Young lifted his hands and looked around to see if anyone wanted
to fight back. Hanson claimed that he then saw another man's hand extend from
behind the corner of the building, holding a gun. Hanson ran away at the sight of
the gun. He heard shots fired but he did not see the shooter.
Rose was a passenger in Hanson's car. When he arrived at the convenience
store, Rose testified that he saw Vasquez, who had driven there with two male
passengers. Rose identified the two passengers as Young and appellant, both of
whom he had known previously. Rose spoke briefly with Young and appellant, and
then they left in different directions.
A security camera captured the meeting between the three men, but the
resolution was not high and the figures were mostly grainy. According to Rose, the
surveillance footage showed Young and appellant heading towards the rear
exterior of the convenience store, away from any public entrance. Their path could
have taken them around to the location where the shooting occurred, but there was
no footage confirming that they had taken that circuitous route.
Before the shots were fired, Rose testified that he saw Young fighting with
Flores across the parking lot, on the opposite side of the convenience store where
Vasquez and Hanson had parked. As with every other witness, Rose testified that
he heard gunfire, but he did not see the shooter.
The medical examiner found muzzle abrasions and soot in Amaro's wound,
indicating that he had been shot at point-blank range. The medical examiner also
found a bullet fragment, which a forensics investigator determined was consistent
with a revolver round. Another investigator opined that a revolver could have been
used in the murder because no bullet casings were found at the crime scene. The
murder weapon itself was not recovered.
SUFFICIENCY OF THE EVIDENCE
To obtain a conviction for capital murder, the State was required to prove
that appellant murdered Amaro and that the murder was intentionally committed
during the course of a robbery. See Tex. Penal Code § 19.03(a)(2). Appellant
contends that his conviction should be set aside because there is no evidence that
he murdered Amaro or that a robbery ever took place.
When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The evidence is insufficient when the record contains no evidence, or
merely a "modicum" of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).
Even though there was no eyewitness testimony regarding the identity of
the shooter, a rational jury could have found beyond a reasonable doubt that
appellant was the person who had murdered Amaro. The undisputed evidence
showed that three Hispanic men were attacked outside of a convenience store by
two African-American men. The record supported a finding that Young was one of
the attackers. Two witnesses (Hanson and Rose) testified that they each saw Young
fighting with one of the Hispanic men in the moments before the shooting.
Another witness (Vasquez) testified that he had driven Young to the
convenience store with a second African-American man, and during the commute,
the two passengers had discussed the possibility of robbing someone. Vasquez
testified that the backseat passenger had exhibited a firearm that appeared to be a
revolver, which could have been used as the murder weapon. Although Vasquez
could not confirm that appellant was his backseat passenger, Rose testified that he
affirmatively saw appellant exiting Vasquez's car with Young when they both
arrived at the convenience store. The jury could have reasonably determined that
appellant participated in the robbery with Young, and that appellant shot Amaro
with the revolver witnessed by Vasquez.
Appellant contends that there is no evidence that the murder was committed
during the course of a robbery because the record showed that a large amount of
money was still found in Amaro's wallet. Appellant appears to suggest that a
completed theft is required before a robbery can occur, but that is mistaken; an
attempted theft is sufficient. See Tex. Penal Code §§ 29.01(1), 29.02; see also id.
§ 19.03(a)(2) (a person commits a capital murder if he intentionally commits a
murder "in the course of committing or attempting to commit.. . robbery").
Here, Vasquez testified that Young and the backseat passenger had
expressed a desire to "hit a lick," or rob someone. Hanson and Rose witnessed
Young physically attacking an Hispanic male, which is consistent with an attempt
to commit a theft. Amaro also said in his final moments that "two black guys [had]
robbed him." From this evidence, the jury could have reasonably determined that
Amaro's murder was committed during the course of a robbery.
The jury could have also found that the murder was intentional. The medical
examiner testified that Amaro died from a single gunshot, which had been fired
into the chest at point-blank range. This evidence supported a finding that appellant
fired the shot with the deliberate intent to kill. See Godsey v. State, 719 S.W.2d
578, 580-81 (Tex. Crim. App. 1986) ("The specific intent to kill may be inferred
from the use of a deadly weapon, unless in the manner of its use it is reasonably
apparent that death or serious bodily injury could not result." (citations omitted));
Nickerson v. State, 312 S.W.3d 250, 262 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref d) (a "point-blank shot" supports a finding that the shot was intentional).
Viewing the record in the light most favorable to the verdict, we conclude
that there is sufficient evidence from which a jury could find every element of the
offense beyond a reasonable doubt.
ACCOMPLICE-WITNESS INSTRUCTION
Appellant argues in his next issue that the trial court reversibly erred by
refusing his request to give an accomplice-witness instruction. Appellant contends
that Vasquez was an accomplice, and that the instruction was therefore warranted.
We review a complaint of jury-charge error under a two-step process,
considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005). If error does exist, we then analyze that error for harm under the
procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1984).
An accomplice is someone who participates with the defendant before,
during, or after the commission of a crime, and who acts with a culpable mental
state. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Under
Texas law, a conviction cannot be had on the testimony of an accomplice unless
the testimony is corroborated by other evidence tending to connect the defendant
with the offense committed. See Tex. Code Crim. Proc. art. 38.14. The
corroborating evidence is not sufficient if it merely shows the commission of the
offense. Id.
To be considered an accomplice, the person's participation with the
defendant must have involved some affirmative act that promotes the commission
of the offense with which the defendant is charged. See Druery, 225 S.W.3d at
498. A person is not an accomplice witness merely because the person knew of the
offense and did not disclose it. Id. Furthermore, the person's presence at the crime
scene does not make the person an accomplice. Id. A person is only an accomplice
if the person could be prosecuted for the offense with which the defendant is
charged, or a lesser-included offense of that charge. Id.
A trial court should instruct the jury that a person is an accomplice witness
as a matter of law if there is no doubt that the person is an accomplice. Id. This
standard is met if the person has been charged with the same offense as the
defendant or if the evidence clearly shows that the person could have been so
charged. Id. If there is a question whether the person is an accomplice, the court
should allow the jury to decide whether the person is an accomplice as a matter of
fact. Id. at 498—99. In either case, there must be some evidence of an affirmative
act on the part of the person to assist in the commission of the charged offense
before an accomplice-witness instruction is required. Id. at 499.
Appellant argues that Vasquez was an accomplice because he drove his two
male passengers to the convenience store after learning of their plan to commit a
robbery. Assuming without deciding that this evidence raised a question of fact as
to whether Vasquez was an accomplice, we must determine whether the trial
court's error in refusing to give an accomplice-witness instruction was harmful.
An accomplice-witness instruction does not say that the jury should be
skeptical of accomplice-witness testimony. See Herron v. State, 86 S.W.3d 621,
632 (Tex. Crim. App. 2002). Nor does it tell the jury that such testimony must
receive less weight than other evidence. Id. The instruction merely informs the jury
that it cannot use the accomplice-witness testimony unless there is also some non-
accomplice evidence connecting the defendant to the offense. Id. Once it is
determined that such non-accomplice evidence exists, the purpose of the
instruction is fulfilled, and the instruction plays no further role in the jury's
decision-making. Id. Therefore, non-accomplice evidence can render harmless a
failure to submit an accomplice-witness instruction by fulfilling the purpose an
accomplice-witness instruction is designed to serve. Id.
A harm analysis for the omission of an accomplice-witness instruction is
supposed to be flexible, taking into account the existence and strength of any non-
accomplice evidence and the applicable standard of harm. Id. We examine the
strength of non-accomplice witness testimony by its reliability or believability, and
by the strength of its tendency to connect the defendant to the crime. Id. The
reliability inquiry may be satisfied if there is non-accomplice witness evidence,
and there is no rational and articulable basis for disregarding the evidence or
finding that it fails to connect the defendant to the offense. Id. at 633.
The applicable standard of harm depends upon whether the defendant
preserved error by bringing the improper omission to the trial court's attention. Id.
at 632. When the defendant has failed to preserve error, he must show egregious
harm. Id. But when, as here, the error is properly preserved, a reversal is required if
just "some harm" is shown. Id.
Error is harmless under the "some harm" standard when there is a substantial
amount of non-accomplice evidence and the evidence of the witness's accomplice
status was tenuous, or barely enough to support submission of an instruction that
the witness was an accomplice as a matter of fact. Id. at 633 (citing Medina v.
State, 7 S.W.3d 633 (Tex. Crim. App. 1999)). The Court of Criminal Appeals has
also held that error is harmless when the corroborating evidence is so strong that
"it becomes implausible that a jury would fail to find that it tends to connect the
accused to the commission of the charged offense." See Casanova v. State, 383
S.W.3d 530, 539^10 (Tex. Crim. App. 2012). At that level of strength, a reviewing
court may safely conclude that the resultant harm is "purely theoretical" because, if
the trial court had given the instruction, the jury would have almost certainly found
that the testimony of the accomplice witness was corroborated. Id.
Turning first to the non-accomplice testimony, we note that there is reliable
evidence connecting appellant to the commission of a capital murder. The jury
heard through the testimony of a sheriffs deputy that Flores and Martinez had
been drinking with Amaro in the moments before the shooting. Flores and
Martinez reported that two African-American men came from behind the
convenience store and attacked Amaro. Two other witnesses, Hanson and Rose,
established that Young was one of the attackers. Although neither witness saw the
face of the second attacker, Hanson affirmatively testified that the second attacker
had a gun and that Young could not have been the shooter.
The identity of the second attacker was the only real dispute at trial, and
Rose's testimony strongly suggested that the second attacker was appellant. Rose
established that Young and appellant had arrived together at the convenience store,
having both been passengers in Vasquez's car. Video surveillance captured a brief
meeting in the parking lot between Rose, Young, and appellant. The surveillance
footage also showed Young and appellant walking away from Rose towards the
rear exterior of the convenience store, where their path could have taken them to
10
the area where Amaro, Flores, and Martinez had been drinking. The surveillance
footage did not reveal any other person in the vicinity of Young and appellant, and
there was no testimony from a non-accomplice witness that a person other than
appellant had intervened or assisted Young. Considering that the shooting
happened shortly after Young and appellant had left the view of the security
camera, the evidence strongly supported a finding that appellant attacked Amaro
with Young, and that appellant was the one who fired the gun.
Turning next to the evidence supporting an accomplice-witness instruction,
we note that there is much less evidence showing that Vasquez acted with a
culpable mental state. There is no affirmative evidence that Vasquez knew about
the criminal intentions of his passengers when he initially encountered them on the
side of the road. Vasquez testified that he learned of their plan to commit a robbery
during the commute, and when he acquired this knowledge, Vasquez pleaded with
his passengers to not commit a robbery at the convenience store because he knew
many of the people who frequented there. The passengers responded by assuring
Vasquez that they would rob someone at a different location instead. There is no
evidence that Vasquez agreed to drive the passengers to that different location, or
that he would share in the spoils of any robbery that the passengers actually
committed.
We suppose that a jury could have rejected Vasquez's testimony and
inferred an intent to assist in the commission of a robbery, but such an inference
could be made only on the basis that Vasquez continued to drive his passengers to
the convenience store after learning of their plan to commit a robbery. If, in the
eyes of the jury, that inference were unreasonable, then Vasquez was clearly not an
accomplice. See Kunkle v. State, 111 S.W.2d 435, 438-41 (Tex. Crim. App. 1986)
(a witness was not an accomplice, despite his knowledge of a plan to commit a
11
robbery, where the witness was only a passenger in the car and he did nothing to
assist or encourage his group in the commission of the robbery); Moore v. State,
984 S.W.2d 783, 788 (Tex. App.—Waco 1999, no pet.) (a witness who drove the
defendant to the scene of a robbery was not an accomplice where the evidence
showed that the witness had no prior knowledge of the defendant's plan to commit
the robbery); cf. Gross v. State, 380 S.W.3d 181, 188-89 (Tex. Crim. App. 2012)
(a driver was not criminally responsible as a party to murder where there was no
evidence that the driver assisted or encouraged his passenger to kill a third party
following a roadside argument).
During the trial, Hanson testified that he had a "split second" look of the
shooter, who appeared to be wearing "a red jacket maybe or red sleeve." Rose,
whose testimony suggested that appellant was the shooter, testified oh the other
hand that appellant was dressed entirely in black. We are not persuaded that
Hanson's testimony provides a rational and articulable basis for disregarding
Rose's corroborating testimony. Hanson's statement regarding the color of the
shooter's clothing was equivocal, and it did not refute Rose's testimony that
appellant was in the company of Young, the other suspected attacker. Rose's
testimony still had a tendency to connect appellant to the commission of the
charged offense.
Moreover, Rose was the only witness who identified appellant at trial.
Vasquez never confirmed that appellant was the backseatpassenger in his car, nor
did he testify that he assisted appellant as either a principal or a party to the
offense. Without testimony of that sort, Vasquez was unlike the typical accomplice
witness whose testimony directly incriminates the accused. Indeed, even if there
were no accomplice-witness rule, a conviction could not have been had on
Vasquez's testimony alone. Rose was essential to the prosecution because he
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placed appellant at the scene with the other suspected attacker, and he was the only
witness who could explain the figures on the grainy surveillance footage.
The jury was apparently persuaded by the strength of Rose's testimony.
Having considered the strength of that testimony ourselves and the relative
weakness of Vasquez's status as an accomplice, we conclude that if an accomplice-
witness instruction had been given, then the jury would have certainly found that
Vasquez's testimony was corroborated. Any error in omitting the instruction was
therefore harmless. See Casanova, 383 S.W.3d at 539-40.
FELONY MURDER
In his next issue, appellant argues that the trial court abused its discretion by
refusing to instruct the jury on the lesser-included offense of felony murder.
We apply a two-part test when determining whether a defendant is entitled
to an instruction on a lesser-included offense. See Sweed v. State, 351 S.W.3d 63,
67 (Tex. Crim. App. 2011). We first consider whether the lesser-included offense
is included within the proof necessary to establish the charged offense. See
McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). This inquiry
requires that we compare the elements of the greater offense as pleaded in the
indictment with the statutory elements of the lesser offense. See Exparte Amador,
326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010). If the elements of the lesser
offense cannot be established by proof of the same or less than all of the facts
required to establish the commission of the greater offense, then the lesser offense
is not a lesser-included offense, and our analysis ends there. See Hall v. State, 225
S.W.3d 524, 536-37 (Tex. Crim. App. 2007).
If the lesser offense is actually a lesser-included offense, then we examine
whether there is some evidence from which a rational jury could acquit the
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defendant of the charged offense but convict him of the lesser offense. See Guzman
v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006). The evidence must
establish the lesser offense as "a valid rational alternative to the charged offense."
See Segundo v. State, 270 S.W.3d 79, 90-91 (Tex. Crim. App. 2008). We consider
all of the evidence presented at trial, regardless of its credibility or whether it is
produced by the State or the defendant. See Hayward v. State, 158 S.W.3d 476,
478-79 (Tex. Crim. App. 2005); Thompson v. State, 521 S.W.2d 621, 624 (Tex.
Crim. App. 1974).
A person commits a capital murder if he intentionally commits a murder in
the course of committing or attempting to commit a felony. See Tex. Penal Code
§ 19.03(a)(2). A person commits a felony murder if he commits or attempts to
commit a felony, other than manslaughter, and in the course of and in furtherance
of the commission or attempt, he commits or attempts to commit an act clearly
dangerous to human life that causes the death of an individual. Id. § 19.02(b)(3).
The only distinguishing element between these two offense is the intent to kill:
capital murder requires an intentional killing, whereas felony murder does not. See
Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). Because an
offense may be a lesser-included offense if the only difference from the offense
charged is that a less culpable mental state suffices to establish its commission, we
conclude that felony murder is a lesser-included offense of capital murder. See
Tex. Code Crim. Proc. art. 37.09(3); Threadgill v. State, 146 S.W.3d 654, 665
(Tex. Crim. App. 2004). Therefore, the first part of the test is satisfied.
Turning to the second part of the test, we must now consider whether there is
any affirmative evidence from which a rational jury could have found that
appellant had the intent to commit a robbery, but not the intent to cause the death
of his victim. See Fuentes v. State, 991 S.W.2d 267, 272-73 (Tex. Crim. App.
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1999). Contending that the record contains such evidence, appellant refers to
testimony that Amaro was fighting with the robbers in the moments before he was
shot. Appellant opines that, during the fight, there may have been a struggle over
the gun, causing the gun to accidentally discharge.
Appellant's argument relies entirely on conjecture, which is insufficient to
support the submission of a lesser-included offense instruction. See Wortham v.
State, 412 S.W.3d 552, 558 (Tex. Crim. App. 2013) (holding that a defendant is
not entitled to a lesser-included offense if the only evidence offered in support of
the lesser charge is "mere speculation"); Hooper v. State, 214 S.W.3d 9, 16 (Tex.
Crim. App. 2007) ("Speculation is mere theorizing or guessing about the possible
meaning of facts and evidence presented."). There must be affirmative evidence
showing that appellant did not intend to murder Amaro at the time the gun was
fired. Compare Ross v. State, 861 S.W.2d 870, 872, 877 (Tex. Crim. App. 1992)
(op. on reh'g) (holding that a defendant was entitled to an instruction on felony
murder as a lesser-included offense of capital murder where the defendant
affirmatively stated in his confession that his gun went off when he shoved his
robbery victim), with Gonzalez v. State, 296 S.W.3d 620, 626-27 (Tex. App.—El
Paso 2009, pet. ref d) (holding that a "possibility" of an accidental discharge
would not support an instruction on felony murder, without affirmative evidence
showing that the shooting was unintentional). Appellant has not cited to any
affirmative evidence in his brief.
The record reflects that Flores and Martinez were the only two individuals
who witnessed the shooting, but neither of them testified at trial. Instead, they
spoke with a sheriffs deputy, who repeated their witness statements to the jury.
According the deputy, Flores and Martinez saw Amaro fighting with his attackers
in the moments before they shot him. However, there was no testimony, or even a
15
suggestion, that Amaro had been fighting over possession of the gun, or that the
gun had accidentally discharged during the struggle. We therefore conclude that
there is no basis from which a jury could have rationally found that appellant
intended to rob Amaro, but not murder him. See Adanandus v. State, 866 S.W.2d
210, 230-31 (Tex. Crim. App. 1993) (holding that a felony murder charge was not
warranted, despite evidence of a struggle between the defendant and the
complainant, where there was "no evidence that the parties were at any point
struggling over the gun").
Appellant was not entitled to an instruction on the lesser-included offense of
felony murder, and the trial court did not abuse its discretion by denying
appellant's request for the submission.
AGGRAVATED ASSAULT
In a related complaint, appellant argues that the trial court abused its
discretion by refusing to instruct the jury on the lesser-included offense of
aggravated assault. We review this complaint under the same standard as before,
considering first whether aggravated assault is actually a lesser-included offense of
capital murder, and then whether there is some evidence of probative value that
supports the requested instruction.
The Court of Criminal Appeals has recognized that aggravated assault can
be a lesser-included offense of capital murder. See Dowden v. State, 758 S.W.2d
264, 269 (Tex. Crim. App. 1988); see also Landry v. State, 227 S.W.3d 380, 382
(Tex. App.—Texarkana 2007, no pet.). Thus, the first part of the test is satisfied.
To satisfy the second part, there must be some evidence that appellant
intended to commit an aggravated assault, but not a murder. See Dowden, 758
S.W.2d at 269. This burden is met if the record supports a finding that appellant
16
only intended to cause serious bodily injury, and not death. See Tex. Penal Code
§ 22.02(a) (defining aggravated assault); Tex. Code Crim. Proc. art. 37.09(2)
(providing that an offense is a lesser-included offense if it can be established
through a lesser showing of injury than the charged offense).
After independently poring through the record, we are not aware of any
evidence that would support the submission of an instruction for aggravated
assault. Appellant, likewise, has not cited to any evidence showing that, if he were
one of the attackers, he only intended to cause serious bodily injury.
Appellant asserts in his brief, however, that "there was no evidence
presented at trial to establish that the individual who shot and killed Raul Amaro
did so with the specific intent to cause his death." This argument is unpersuasive. It
is not enough to argue that there was a lack of evidence to support the greater
offense. There must instead be "affirmative evidence that both raises the lesser-
included offense and rebuts or negates an element of the greater offense." See
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); see also Dowden,
758 S.W.2d at 269 ("A charge on the offense of aggravated assault would be
required only if testimony was introduced from sources indicating a lack of intent
on the part of appellant to kill the deceased." (emphasis added)). Even if appellant
could show that there was no evidence of an intent to kill—and he cannot, for the
reasons explained above—there is still no affirmative evidence from which a jury
could rationally conclude that appellant was guilty of only aggravated assault.
The trial court did not abuse its discretion by refusing to submit an
instruction on the lesser-included offense of aggravated assault.
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CLOSING STATEMENTS
The prosecutor made the following comments in her final summation:
"Please, please, go back there. Do the right thing. Show the Amaro family that
there is justice in our country. Show them that we are willing to do the right thing."
Appellant objected to these remarks as being outside the scope of permissible
closing statements. The trial court overruled the objection, and on appeal, appellant
contends that the trial court's ruling was erroneous.
Permissible closing statements generally fall within one of four areas: (1) a
summation ofthe evidence, (2) a reasonable deduction from the evidence, (3) an
answer to argument of opposing counsel, or (4) a plea for law enforcement. See
Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A closing statement
that exceeds these bounds is improper, and the trial court commits error when it
(1) overrules an objection to the statement, (2) refuses an instruction to disregard
the statement after sustaining an objection to the statement, or (3) fails to grant a
mistrial necessitated because of the statement. See Watts v. State, 371 S.W.3d 448,
457 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Appellant contends that the prosecutor encouraged the jurors "to place
themselves in the shoes of the victim's family," and that her closing statement was
therefore improper. We disagree. The prosecutor did not ask the jurors to render a
verdict based on what the Amaro family desired. Instead, she urged them to
convict appellant because the evidence supported a verdict of guilty. The
prosecutor's closing statement qualified as a plea for law enforcement, and the trial
court did not abuse its discretion by overruling the objection. Cf. Ayala v. State,
267 S.W.3d 428, 435-36 (Tex. App.—Houston [14th Dist.] 2008, pet: ref d)
(closing statement was a proper plea for law enforcement when the prosecutor said,
"I hope you also think of Carmen, and her children, and Juan, and the justice
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*, • »*
they're entitled to... . And on this day, when you're in the 12 seats, I ask you to
deliver them that justice.... Convict that man of the offense that he deserves to be
convicted of, capital murder. There's nothing, nothing else that is fair and right in
this case."); Smith v. State, 846 S.W.2d 515, 517-18 (Tex. App.—Houston [14th
Dist.] 1993, pet. ref d) (closing statement was a proper plea for law enforcement
when the prosecutor encouraged the jury to "do the right thing" before invoking
concerns about crime on the streets and the impact of that crime on members of the
community).
CONCLUSION
Appellant's five issues are overruled and the judgment of the trial court is
affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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