                                              January 22, 2015

               CAUSE NO. PD-1661-14

         IN THE COURT OF CRIMINAL APPEALS
                      FOR THE
                  STATE OF TEXAS

      MARCO POLO MEDINA-GONZALEZ, APPELLANT

                        V.

             STATE OF TEXAS, APPELLEE


        PETITION FOR DISCRETIONARY REVIEW
      FROM THE 54th JUDICIAL DISTRICT COURT
              MCLENNAN COUNTY, TEXAS
      TRIAL COURT CASE NUMBER 2012-2077-D2
       HON. MATT JOHNSON, JUDGE PRESIDING

AND IN THE TENTH COURT OF APPEALS FOR THE STATE OF
                       TEXAS
        APPELLATE CAUSE NUMBER 10-13-394-CR



  APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


            DENTON “Denny” B. LESSMAN
                TX BAR NO. 24042474
           100 N. 6TH STREET, STE. 702
                  WACO, TX, 76701
             TELEPHONE: (254)776-4544
             FACSIMILE: (254)776-4551
           EMAIL DLESSMANATTY@AOL.COM
              ATTORNEY FOR APPELLANT
            IDENTITY OF PARTIES AND COUNSEL

  MARCO POLO MEDINA-GONZALEZ APPELLANT

  STATE OF TEXAS                APPELLEE

  DENTON B. LESSMAN             APPELLATE & TRIAL ATTORNEY
  100 N. 6TH STREET,            FOR APPELLANT
  STE. 702
  WACO, TEXAS 76701

  ABELINO REYNA                 APPELLATE & TRIAL ATTORNEY
  501 WASHINGTON AVE.           FOR APPELLEE / CRIMINAL
  WACO, TEXAS 76701             DISTRICT ATTORNEY FOR
                                MCLENNAN COUNTY, TEXAS


                   TABLE OF CONTENTS

Contents

IDENTITY OF PARTIES AND COUNSEL ....................... 2

TABLE OF CONTENTS ..................................... 2

TABLE OF AUTHORITIES .................................. 3

STATEMENT REGARDING ORAL ARGUMENT ..................... 3

STATEMENT OF THE CASE ................................. 3

QUESTION PRESENTED FOR REVIEW ......................... 5

REASONS FOR GRANTING REVIEW ........................... 5

ARGUMENT .............................................. 5

PRAYER ................................................ 9


                            2
CERTIFICATE OF COMPLIANCE ............................ 10



                       TABLE OF AUTHORITIES

Cases

Apodaca v. State, 589 S.W.2d 696 (Tex. Crim. App. 1979)
 ..................................................... 6
Dodd v. State, 2004 WL 1311220 at 3 (Tex. App.—
 Texarkana 2004, no pet.)............................. 8
Jaycon v. State, 651 S.W.2d 803 (Tex. Crim. App. 1983,
 en banc.)......................................... 5, 6
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
 2007)................................................ 6
                STATEMENT REGARDING ORAL ARGUMENT

      The      Appellant,        Marco          Polo       Medina-Gonzalez,

respectfully requests the opportunity to present oral

argument on this case and believes that oral argument

will assist the Court in evaluating the merits of his

issue.

                       STATEMENT OF THE CASE

      This     case   is   an    appeal         from   a    jury   trial   in

the     54TH   District     Court          of    McLennan     County.      The

Appellant,        Marco         Polo        Medina-Gonzalez         (herein


                                       3
“Medina”),      was      indicted for Aggravated Kidnapping,

Ct.     1;   Aggravated          Robbery,     Ct.       2;    and    Evading

Arrest       or Detention         with Motor        Vehicle,          Ct. 3,

on    October    31,     2012.    (C.R.    I-5)     A    jury       trial   was

conducted on October 28, 2013 through October 30, 2013.

Medina entered a plea of “guilty” to count 3 and

the jury returned a verdict of guilty on counts 1 &

2.    The    jury      assessed     punishment          at    80    years   on

counts 1 & 2 and 10 years on count 3.

      One issue was presented on appeal to the Honorable

Tenth    Court      of    Appeals    and     the    Intermediate        Court

overruled said issue and affirmed Medina’s conviction.

      Medina     now      seeks     review     of       the    Intermediate

Appellate Court’s overruling of his presented issue.

                 STATEMENT OF PROCEDURAL HISTORY

      The Tenth Court of Appeals issued its opinion on

November 20, 2014 and an extension was granted by this

Honorable Court until January 21, 2015 for Medina to

file this petition. No motion for rehearing was filed.



                                      4
              QUESTION PRESENTED FOR REVIEW

    The Tenth Court of Appeals erred in holding that

the jury charge application paragraph correctly charged

Medina both as a party and primary actor.

               REASONS FOR GRANTING REVIEW

    Medina argues the Tenth Court of Appeals decided an

important question of law in a way that conflicts with

the applicable decisions from this Honorable Court and

that this case presents a unique opportunity for this

Honorable Court to consider an important question of

state law.

                          ARGUMENT

    The   Intermediate   Appellate   Court   has   incorrectly

overruled Medina’s issue that the Trial Court erred by

charging him both as a primary actor and party when the

evidence only supported charging Medina as a party.

    Medina primarily relied upon this Honorable Court’s

holding in Jaycon v. State, 651 S.W.2d 803 (Tex. Crim.

App. 1983, en banc.) to support his issue. In Jaycon,

this Court gave an in depth discussion regarding the

                             5
requirements     of    charging   the     law      of   parties     to   the

facts of the case. If the evidence that another did the

act   charged    and   the   defendant’s           culpability      depends

upon proof of one of the four theories of parties’

culpability set for the in Penal Code Section 7.02, the

jury should not be permitted to consider whether the

defendant is guilty as a principle actor. Jaycon at 807

discussing Apodaca v. State, 589 S.W.2d 696 (Tex. Crim.

App. 1979).

      The Intermediate Court held that Jaycon does not

apply to this case because Jaycon was only charged as a

primary actor to the offense and Medina was charged

both as a primary actor and as a party.

      Medina asserts that the Intermediate Court clearly

erred in its holding.

      In a trial, the guilty finding must be based upon

the   evidence    admitted     in       the    case     and   reasonable

inferences    therefrom.     Williams         v.    State,    235    S.W.3d

742, 750 (Tex. Crim. App. 2007).



                                    6
    The Intermediate Court found that there was some

evidence that Medina was a primary actor: Specifically,

it stated:

  1. “Valdez testified that he thought the assailant

     with     the     rifle   was      Medina.    That           particular

     assailant held Valdez at gun point and forced him

     out of his car and then beat Valdez when he was

     told to open the safe and replied that he did not

     know the combination.”

  2. “Medina had been an assistant manager and knew

     where the alarm was and where the cash office

     was.”

  3. “When Medina was apprehended later, although he

     was     not    dressed   in   camouflage,        he    had     numbers

     consistent with a combination in his wallet.”

    The three findings of the Intermediate Court are

clearly     and     completely     contrary      to        the     evidence

admitted at trial and are not a reasonable inference

therefrom.



                                   7
       Specifically,      it    was    conclusively         established    at

trial that Medina was the driver of the getaway vehicle

and    was   not    one   of    the     actors      in    camouflage     that

engaged with Valdez            in the aggravated kidnapping or

went    into    the    grocery        store       where   the    aggravated

robbery occurred. Exhibit #21(the police in car video)

and the testimony of Officer Malone clearly establish

this fact. (R.R. vol. 3, pgs. 71, 73-79).

       Therefore, the speculation of Valdez in finding 1

above    was    completely          refuted   by     this    evidence     and

findings 2 and 3 above completely fail to establish the

required       elements        of      aggravated         kidnapping       or

aggravated      robbery.       To    establish      Medina’s     guilt    the

State    must      clearly      rely       upon    the    acts   of    other

individuals.

       In contrast, Texas courts have held that a getaway

driver can be responsible as a party. [See Dodd v.

State, 2004 WL 1311220 at 3 (Tex. App.—Texarkana 2004,

no pet.) for an excellent discussion on this point.]



                                       8
    The holding of the Intermediate Court of Appeals

establishes a dangerous precedent that is contrary to

the law pronounced by this Court and has resulted in a

miscarriage of justice in this case and will continue

to do so into the future.

                        PRAYER

    WHERFORE PREMISES CONSIDERED Medina prays that this

Honorable Court will grant this petition and allow the

issue to be completely presented to the Court. Medina

further prays that after said presentation that the

Court will sustain the issue raised herein, reverse the

Judgment of the Honorable Tenth Court of Appeals and

remand this case to the Trial Court for a new trial.

                            Respectfully Submitted,

                            Law Office of Denton B.
                            Lessman
                            100 N. 6th Street, Ste. 702
                            Waco, Texas 76701
                            Tel: (254) 776-4544
                            Fax: (254) 776-4551
                                               Digitally signed by Denton B.
                                               Lessman
                                               DN: cn=Denton B. Lessman, o=Law
                                               Office of Denton B. Lessman, ou,
                                               email=DLessmanAtty@aol.com,
                                               c=US
                            By:                Date: 2015.01.16 14:34:07 -06'00'

                                  Denton B. Lessman

                             9
                                        TX Bar No. 24042474
                                        Attorney for Medina



                          CERTICATE OF SERVICE

    I hereby certify that a copy of Medina’ Brief was

served     on     the    State   Prosecuting    Attorney           and         the

Criminal        District    Attorney    of   McLennan       County             via

email.                                              Digitally signed by Denton B.
                                                    Lessman
                                                    DN: cn=Denton B. Lessman, o=Law
                                                    Office of Denton B. Lessman, ou,
                                                    email=DLessmanAtty@aol.com,
                                                    c=US
                                                    Date: 2015.01.16 14:34:28 -06'00'
                                  Denton B. Lessman

                        CERTIFICATE OF COMPLIANCE

    I hereby certify in accordance with Rule 9.4(i)(3)

that this entire document, including those excludable

under Rule 9.4(i)(1), has a total of 1274 words and

that this documents was produced using Microsoft Word

2010.                                               Digitally signed by Denton B.
                                                    Lessman
                                                    DN: cn=Denton B. Lessman, o=Law
                                                    Office of Denton B. Lessman, ou,
                                                    email=DLessmanAtty@aol.com,
                                                    c=US
                                                    Date: 2015.01.16 14:34:42 -06'00'

                                  Denton B. Lessman




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