Guillory, Patrick Sharard

/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*<f

Patrick Sharard Guillory

10.

CLAIM NO. FIVE FOR REVIEW:

The trial court erred when it overruled petitioner's objection

to the prosecutor making an improper plea for law enforcement by

essentially "asking" the jury to place themselves in the shoes

of the victim's family.

)) ARGUMENT FOR RECONSIDERATION

In the instant case, petitioner argues facts that show the

State prosecutor violated a protected right by requesting that

the jury convict the petitioner based on personal interest, in,^ •.

stead of the evidence presented during this critical stage of

petitioner's trial. U.S. Martinez-Larraga, 517 F-3d 256 (5th Cir.

2008) The State prosecutor made a plea to the jury that ulti

mately tainted the jury's decision making ability to decide the

evidence on the facts presented. This violation created irre

parable harm and prejudice was; unavoidable.

Petitioner further argues the statement made to the jury was

legally improper as it violates the petitioner's due process

right to a full and fair trial. He avers that the due process

requires that a conviction for a criminal offense (must) be sup

ported by a finding beyond a reasonable doubt and that (all)

elements of the crimes are proven. Thacker v. Drethe, 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

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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

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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

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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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