# Guillory, Patrick Sharard > Court of Appeals of Texas · May 4, 2015 URL: https://www.frixlaw.com/law-library/cases/4054987 ## Case - **Court:** Court of Appeals of Texas - **Decided:** May 4, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4054987 ## How later opinions describe it (automated extraction) - 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" - 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" ## Opinion text /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*