                               Ref No     PD    115-15




                    IN   THE    COURT      OF         CRIMINAL     APPEALS


                                  AUSTIN          ,    TEXAS




                                                                                 RECEIVED M
                            FERNANDO MAGALDE                                   COURT OFCRIMINAL APPEALS
                                                      PETITIONER
                                                                                    APR 17 2015
                                          v.
                                                                                Abel Acosta, Clerk

                         THE STATE OF TEXAS

                                                      APPELLEE




        petoitiion for Discretionary Review of the 8th Court of appeals
         El Paso County ,Texas, Appeal No 20110D05035 and the judgment
         by the 120th District Court the Honorable Judge Maria-salas


                            ORAL ARGUMENT REQUESTED


                                        Parties

Judge
                                                                    Trial Counsel
Maria-Salas
                                                                   Attorneys
Prosecutor state
                                                                   Robert Riley,
Jaime Esparza/                                                     Jaime Gandara
Manuel Arambula,                                                   ElPaso publish defender .
Nathan Brown,                                                      500 E,   San Antonio,   R 501
34th Judicial Dist Attorneys                                       El paso Texas 79901
l?°pIsoST2x§gt9^8lROOm 201                                         Appellate Counsels
                                                                   Clara Hernandez,
                                                                   Penny Lee Anderson
                                  IK THE COURT.      OF CRIMINAL APPEAS
                                             AUSTION , TEXAS


FERNANDO MAGALDE
                 Petitioner


                                                                    Ref'd PD   0114-15
  V.                                                                App NO 08-12-000&3-CR
                                                                    Trial NO 20110Dd6:|i« i:. -120-2


THE STATE OF TEXAS
                 Appellee



                       PETITIONER / PETITION FOR DISCRETIONARY REVIEW
                                       AND MEMORANDUM IN SUPPORT



TO THE HONORABLE JUDGE OF SAID COURT


      Comes    Now     Fernando        Magalde, Petitioner Pro se,Hereinafter Magalde in the
above     styled       and      Numbered    cause        to        file this petition and Memorandum in
support        thereof his petition for Discretionary Review and will show the court
the following
                                                         I

                                   FACTUAL / PROCEDURAL BACKGROUND
Petitioner        Magalde        was    charged     in        a     three count indictment with Robbery
COUNT     I,    Aggravated Kidnapping COUNT II,And Unlawful ;;use of a motor vehicle
COUNT     III, At the trial the jury found him not guilty of Caffit one the Robbery
and     Count     III,       the Unlawful use of a Motor vehicle, The jury also found him
not     guilty       of   the     Aggravated Kidnapping                Count II, But found him guilty of
the     lesser       included      offense        Un4a:W/fulU Restraint1 of Count II (CR 174) at
the punishment phase January 25, 2012 the jury assessed punishment at 365
days jail time and a fine of $4,000 dollars (RR5,233)) (CR 155) Sentencing
was     imposed by the Honorable Judge Salas-Mandoza in the same (RR5,237) (CR
11-12 ) Notice of appeal was given an signed on, by Judge Salas-Mendoza January
25,     2011     (CR      135    ) with a second notice filed February 9,2012 (CR 166-167)
                                                     II
Magalde appealed his conviction to the 8th court of appeala El Paso Judical
district styled FERNANDO MAGALDE-V.THE STATE OF TEXAS,App NO 08-12-00065 CR
whom in a unpublished opinion affirmed the conviction on March 12,2014 The




                                                             -1-
Original       date     for    filing       the       petition      for Discretionary Review was April
27,2014,        However       a    letter        was     sent to the El Paso Public Defender Office

by     petitioner       who       requested          them     to file an extension of time ,his letter
was     not     transmitted        to     the     court        of appeals do to a clerical error which
caused        the     time period         for        filing      of the ( PDR ) to calpse, A motion was
filed     by the El Paso Public defender office on June 13,2014 seeking extension
of     time, that letter was subsequently denied by the court of criminal appeals
June 16,       2014

Petitioner          then     filed      an application for writ of Habeas Corpus to the court
of     criminal       appeals pursuant to               Article 11.07 of the texas Code of Criminal
Procedural          seeking permission to file an out-of-time petition for discretion
ary review          ( WRIT NO WR 82-561-01 ) Which was granted in his favor on January
14,     2015    granting          him an        opportunity         to file an out-of-time petition for
discretionary          review the         courts        mandate issued on February 9,2015 A motion
for     extension       of    time      was       filed by petitioner on January 20,2015 seeking
another        extension      of     time       to     prepare and file his PETITION WHICH WAS ALSO
GRANTED        February 2,2015 which extended to period for filing the ( PDR ) until
may 11, 2015
                                                         III
                                                  JURISDICTION



This     Honorable         Court has Subject matter Jurisdiction pursuant to Texas Rules
of     Appellate Procedural Rules 66.1, 66.3 and 68 as part if its punitive power
to review criminal matter

                                                            IV

                                        REQUEST KB ORAL ARGUMENTS

Oral arguments are necessary so that petitioner may better advise the courts
why the error in the courts jury charge rendered the evidences Legally insuff
icient ,,and why the verdict constitutes a violation of due process ,oral
argument will further permit petitioner to show way the opinion of the 8th
court of appeals was also flawed ,that a reversal and Remand is Thus warranted




                                                              -2-
                                           TABLE OF CONTENTS


Cover page      •••   -            ••                                                                    0
Factual / Procedural Background                 .= . . . . . , .       ...........               .       l
Jurisdiction      .. .. ,                                   ,,...=..                    . .    , .       2

Request for Oral Arguments .. = =                                                                        2
Index of Authorities . . . . . . .                                                     .,..,,,           3

Statement of Case ;                         • - .                    ,.= . . . . . . . . , . . . . .     5

Statement of Facts          . . . . , . . = .„                     ,.,..,                                5-6

Issues Presented          ... - -. - . •               .                  -•                             6

Arguments /Authorities              -....= ,.............„                     . . .                     7


                                           TABLE OF AUTHORITIES

Supreme Court Cases
Brunks.v.United States,347 U.S 1,96 S.CT.2141,57 L.Ed .2d 1 (1978 )
Hopper.v.Evans, 456 U.S,605,120 S.ct 2049,72.L.Ed.2d.367 (1982 ) ...,».,... 13
In Re Winship 397 U.S.358,90.S.CT .1068.25 L.Ed .368 (1970 ) ... . . .,. , . ., 15
Jacksoh^vlVirginia,443 US 307,318-20 99 S.CT 2781 2788-89                                                        11
Federal Cases

U.S.V. Baker ,.l, 820 F. 2d-2033, 2035 ( 9th Cir 1984 ) , . . , . . ,                     .,...,.. 7
U-S.V.Scroggos,379 -F.3d.233,353,357 (5th Cir 2004 ) . , ,                                           , .. , 15

State Cases

Bagnill.v.State,887.S.W.2d.21.(Tex.Crim.App 1998 ) >.,..„ .... ., ,, . ... . -7,8,9
Barnas.v.State,644.S.W. .2d.l. (Tex.Crim.App 1981 ) -                                      -    ••• •            - 13
Benavides.v.State,763-S.W.2d.587,589.(Tex.App.Corpus.Christi 1988 pet Ref'd). . 7
Brinage.v.State,918 S.W. 2d at 644,675,76 (Tex.Crim.App 1994 ), - ... ,. ,,.. = = 14
Brooks, v-State, 323.S.W. 3d at 894,95 (Tex. Crim.App 2009 ) ........ .. .. . ... 21
Curry-v.State-966.S.W. 2d 203 ( Tex.App El Paso 1998 ) ., .. .. .. . ,., .... ..... 9
Doyles.v.State,632 S.W. 2d a 732,788 ( Tex. Crim.App 1982 ),....=,.-... .. 13
Gollihar-v.State,46 S.W. 2d at 243. (Tex.Crim.App 20001 ) , .              22,13
Griffith.v.State, 976 S.W. 2d.686,690 ( Tex.App.Tyler pet Ref'd )                                            . .-23
Hampton.v.State,165.S.W. 3d 691 ( Tex.App Houst [1st Dist] 2005 ) ,.., ,... .. . , q
Holcomb.v.State. 745 S.W. 2d 903 ( Tex.Crim.App 1988 ) .. « , ,.. . ... ., ... . .- =. 22
Johnson.v.State.84 S.W. 3d 724 ( Tex.App Houst [1st Dist] 2002)) „                                           .        21
Jordan.v.State.639 S.W. 2d 477,478 ( Tex.Crim.App 1982 )............ . . 24
Kieschnick.v.State.911 S?W? 2d ...156,161 ( Tex.App Waco 1995 ) ,...,..,,..                                           21
Kulzner.v-State.994 S?.W2d. 180.184 ( Tex.Crim.App. 19999)                        -.                    ,.            21




                                                     -3-
MoCantim.v.State, 647 S.W. 2d at 100 ( Tex.Crim.App 1983 )                                         8
Newton.v'.State,648.S.W. 2d 693,694 ( Tex.Crim.App 994 )                                          12
Cchca.v.State,955. S.W. 2d at 92,93 (Tex.Crim.App.1984 )                                           6
Rezac.v.State, 782 S.W. 2d 869,870 ( Tex.Crim.App 1990 )                                                     13
Richarder.v.State,832       S.W.         2d    at        171      ( Tex.Crim.App 1998 )                             12
RRousseau.v.State.855 .S.W. 2d 666,673.(Tex.Crim.-App 1993 )                                                    7
Royster.v.State, 622.S.W. 2d 980 (Tex.Crim.App 1984 )                                                  .7
Seanz.v.State,131.S.W.3d 43. (Tex.App.San.Antinio.2003 )                                          ,...-'12
Trujillo.v.State,227.S.W..3d             164        (Tex.App.Houst        [1st        Dist]2006    ) -t JO, .
Westbrook-v.State,29.S.W.3d 103,113 (Tex.Crim.App 2000)                                                      8



Statutes / Penal Codes               ...-.,

Art 37.08 T.C.CP                                                                                        12

Art 37.09 T.C.G.P                                                                                           8

Art 21.24 (a) & (b)                                  -                                            - -   12
§ 2.01                  .......                                                                         7
§20.01(2)West 2003 )                                                             ••                     9
§20.02(a) (West) 2003                                           - •                                     9
§20.04(a) ,              •• • • -=                             - ••   -          ••••         - • -     10
§6.03 (b)                                                                                               10
. §1.07(5)atl34 (1985 J ....         .                                                                  12


Conclusion                                                                                              14

Prayer For Relief                                                                                       15
Certuficate of Service                                                                                  15




                                                         -4-
                                                      STATEMENT OF THE CASE



Petitioner              Magalde            is     Appealing       lithe    opinion of the 8th Court of Appeals
Appeal        Number           08—12-00065-CR              which       affirmed    his conviction March 12,2014
for      the 120th Judicial District Court El Paso County,Texas for Unlawful Rest
raint        (     RR4,98)           CR at 147 ) A Class A Misdemeanor L . Trial NO 20110D00050-
35-120-2,           Holding              that     the    Evidence where       sufficient to support the jurys
findings of guilt                    as to the Lesser included offense                 ; ( 8th ct App Brief at
page 3-7 )

                                                       STATEMENT OF FACTS


Petitioner              trial        bagan        on    January 20, 2012 during trial the complainant Ms
mslissa           Maribel           Ferrera           testified that on the 17th of July 2010 she and the
petitioner Mr Fernendo Magalde had been dating since 2004, and had two children
(RR3,        61)        On     the date in question Ms Ferrera testified that she and Magalde
where        at     a        friends          house,     Later      in the evening they all decided to go to
a     festival           in San Elizario ,Texas (RR3, 69) She stated that although Magalde
was     drinking              alcohol           she    allowed him to drive her vehicle in which she one
of      there two doughter rode with her and Magalde (RR3, 71 ) Once they arrived
at the Kermes festival, Ms Ferrera                            and :.:Magalde got in to an argument (RR3,9
SHE     TESTIFIED              SHE REFUSED TO GET OUT                  OF THE VEHICLE AND ATTEND THE FESTIVAL

WITH Magalde                  ,     Because he'd been, been drinking and appeared very ;Drunk and
she     knew        him        to become very jealous when he's with her, Ms Ferrera.testified
that     petitioner                 Magalde       started        the     vehicle   and begain to drive off ,she
turnned           her        head to the side and away from him, and thats when Magalde struck
her     on        Jthe        side       of      her head (RR3,71 ) she also testified that she didn't
want      to       go with Magalde and started to get out the vehicle ,Because she knew
that     he        would           continue,       to hit her, (RR3,72 ) But when she attempted to get
out     petitioner                 Magalde       grabbed      her      by the hair, ( RR3, 71-72 ) Ms Ferrera
testified           that           she     attempted        to Call 911, on her cell phone for assistance
But',    before              she     could dial the number Magalde took her cell phone away from
her      (    RR3,           72-73 ) and began to drive toware his mother house,She testified
that as he drove he continued to grabbing her hair to prevent her from-exiting
the vehicle,                  Once they arrived at his mother house                    he told her to stay put,
while        he took               their        four    year old doughter inside (RR3,73-74 ) Ms Ferrera




                                                                  -5-.
testified          that she got out the vehicle and begain to run away, But petitioner
cought       her        and        began assaulting and hitting her some more until ,his mother
came     and       intervened              by    standing     between    then to protect her , Ms Ferrera
testified          she        then went in to petitioner mother's house and got a Knift from
the kitchen              in        order tp protect herself,(RR 3, 74-75 ) and told             petitioner
to stay away from her,                      at which point he got in the vehicle and left ( RR3,76)
In     addition          Ms        Ferrera        testified that she asks petitioner to give her ,her
belongings such as her Purse,Money ,ID Card and other things,^but he just drove
away,     she       testified              that petitioner mother didn't have a phone in her house
,So     she     and       her        doughter walked about three blocks before finding a person
to whom let her use there phone to call 911 ( RR 77-79 )

when deputy              from the El paso police Department arrived , she testified she
begain explaining to officer what happen ( RR3, 80 ) One of petitioner friends
dropped        off her other                    doughters     deputy then took her,,her children back to
her     house       in        El     Paso ( RR3/77«79)Ms Ferrera testified that she didn't have
keys to her house and feared petitioner would return                              so   the   deputy helped
her     secure          her        house        by blocking       the front door with a sofa (RR3, 82-83)


                                                ISSUES PRESENTED FOR REVIEW



       TEE     EVIDENCE             ARE     LEGALLY      INSUFFICIENT TO SUSTAIN PETITIONER CONVICTION
       FOR THE LESSER INCLUDED OFFENSE OF UNLAWFUL RESTRAINT


Petitioner challenges the opinion of the 8th court of appeals and it's evaluat
ion of his insufficiency of the evidence claim to support his criminal convict
ion,     He     claim          that        the     trial court improperly submitted the charge on the
Lesser        included offense,even though it was not raised by or from the evidence
presented          at     trial,           He argues that the 8th court of appeal did not considec
the     two     prong test implemented by the Court of Criminal Appeals, when deter
mining       whether               the     evidences      where Legally sufficient to support his Con
viction ,and asks this Honorable Court to Grant his Petition for discretionary
Review        in    the        interest           of   justice,      and will demonstrate the Verdict was
so against the                 great        weight      and prepondrance of the evidence to be clearly

     Footnote

 1, Ochoa.v.State,955.S.W.2d.389.392-93 (Tex.Crim.App.1984 ) Cchca challenge the legal sufficient
    of the evidence to support his conviction en the Lesser included offense in a Sexual Assault
    case in which the court improperly submitted a charge en Sexual Assault as a Lesser to the
       Agg'Sexual Assault, Hampton .v.State,165 S.W.3d at 691 (Tex.App Houst [1st Dist] 2005




                                                               -6-
wrong and manifestly unjust,that.the Conviction cannot stand,U.S.v.Backer
720 F.2d.2033,2035.( 9th.Cir.1984 )

                                       ARGUMENTS / AUTHORITIES

Petitioner Argues that the 8th Court of Appeals failed to review the sufficiensy
of the evidence by looking at the elements of the charging offense                                    as incorp
orated in the courts charge to the jury,                             Benavides.v.State/763        S.W.    2d.587
588-89       ( Tex.App        Corpus.Christi.1988)                   Pet   Ref'd     ), in its   consideration
of the Legally sufficient of the evidence claim ,                                  The   Fourteenth    Amendment
of    our     Constitution      houses           due    process protection in which theU.S Supreme
Court [has] determine requires ,that the jury must find each and every element
of     the    offense     charged       beyond          a    reasonable doubt,           Our Penal Code , also
requires       that     no person       may        be       convicted of an offense , Unless each and
every element of that offense is.proved,TEX.PENAL CODE §2.01

The record         reflects      that       petitioner made an objection to the courts charge
on Aggravated Kidnapping   (RR4, at 25-26 ) that was overruled by the trial
court,petitioner counsel argued that the trial court should not charge the
jury ,because a charge on Aggravated Kidnapping wasn't warranted, given
the circumstance of petitioner action. However the trial court submitted
and     instruction on that offense as well as the Lesser included offense "Unla
wful     Restraint"       (   RR4 at 26-27 )                which is at issue here,He claims that the
charge       was   improper        and. was Abuse of discretion on part of the trial court
for ignoring          petitoner due process ,

In determining           whether       to    charge a jury on a Lesser included offense a two
prong test [ Must ] be satisfied,                           First step requires that the lesser includ
ed be within proof necessary to establish the greater offense,Royster.v.State,
622..S.W.2d.980          (Tex.Crim.App.1984                  ),     The second       step requires that there
be     some    evidences       exist        in    the        record directly [ Germane ] to the lesser
included offene,Rousseau.v.State,855                              •. S.W...2d.666,673. (Tex.Crim-App. 1993        )
Both prongs must be met and applys equally to the state as well as defendant
if evidence presented at . trial will no[t] raise an issue of a lesser offense
the court need not charge the jury on the lesser included offense,, Bignall.v.
State/887 S.W. 2d.21,24.( Tex.Crim.App.1994 ) merely because it is within

      FOOTNOTE

2, Hapten. 2.v.State 165.S.W.3d.691.( Tex.App-Houst. [1st Dist] 2005 Hapten challenged the legal
     sufficient of the evidence to support his conviction, Based on an improper charge on a lesser
     included offense ,The court agreed with hanpton the charge was improper and reversed ,Remand
     hatipton conviction for Sexual Assault,




                                                                  -7-
proof     necessary          to establish the greater , the second prong of the two prong
test is preserved for the integrity of the jury as the fact finder by ensuring
that     juror are           [ Only         ]    instructed on a lesser included offense when the
evidences        Constitutes          it    as       a     Valid alternative to the charging offense ,
Westbrook^v.State,29                S.W.        3d       at.     103.113.(Tex.Crim.App 2000) Also ARTICLE
37,08     AND    37.09           T.C.CP. " which               Authorize     that a jury may not convict the
accused       of a lesser included offense, unless the evidences reasonably justify
them in doing so.

Petitioner will no[t] challenge the first prong of the two pact test, Unlawful
Restraint,        is     a       lesser    included             of      the charging offense,,therefore   this
Honorable        court       need     only       determine whether the second prong was satisfied
and must         do so by determining ,if the record contains sufficient evidence
to     support         First       the trial court submission of the lesser included offense
it     must    find      that       evidences            show        that ,If petitioner was guilty, he was
                             3
guilty        [ONLY      ] of the Lesser offense of " Unlawful Restraint",                         He argues
that it is no[t] enough that the jury may disbelieve crucial evidence pretain-
ing to the greater offense ,McCantion.v.State,.647. -S-W.2d. 100. (Tex.Crim.App
1983     )      the     evidence          must be directly germane to his guilt ,in shortbefore
                                                                                    4
a charge       is warranted           the two prong must be satisfied ^Aid.-r.lOO-iThereLmust-

     FOOTNOTE

 3, Hub the defendant .denieds comiissicn.offany., offense and.,therefore presents no evidence
     eslabishing ccnrmssion of a lesser lnclueed offense IneJ is no|tj entitled a charge on
    the lesser offense Bignall-v.State 887 S-W. 2d at 21,24 ( Tex.Crim-App 1994 )
 -4,Magalde was not entitled to a lesser offense instruction ;nore was the state simple because
     the jury may choose to disbelieve his story ,does not of itself create a right to a lesser in-
     :cluded offense charge, Fraga.v-State,940 S:W. 2d 736,738, ( Tex.App San Antinio 1997 ) to hold
      otherwise is tantamunt to consideration of evidence outside the record andwould be a Broad rul-
     iing for the courts to be allowed to submit a lesser offense even those not raised marely ocuse
      there is a possibilily there was only a lesser offense acnmitted
 5, because the record indicates the a tine objection was made ,this error was therefore preserved
    for appellate review, the 8th court of appeals wtherefore err in not assigning the error in its
    review of petitioner insufficient of the evidence claim under the Jackson -v.Virginia standard
      Id 99.S-CT2792 (1998)




                                                                  -8-
be evidence pointing directly./ to his guilt only of the lesser included offense
Jackson.v.State, 115 S.W. 3d at 326 ( Tex. Crim.App. 1991 )., the issue Is no[t]
resolved by merely determining that the crime charged includes a lesser offense
at     the     trial           of    this cause petitioner objected to trial courts instruction
on     Robbery           and Aggravated Kidnapping ( RR4, 4-5-13-20-23 ) during discussion
out     side        presences of the jury ,i.despite oral arguments trial Court overruled
thoses objections*Johnson.v.State 84                          S.W.       3d   at    724 ( Tex. App. Houst [1st
Dist]        2002        )     ,In     order   to    satisfy the second prong the evidence at trial
must throw doubt upon the greater offense ,If the accussed presents no evidence
that     he        committed the offense 'or' presents no evidence                         to the contrary,and
theres        no     evidence that show otherwise that he's guilty [Only] of the Lesser
included offense the trial court is [N]ot                              under any duty to submit instruction
on a Lesser offense,Bignall.v.State                         887 S.W. 2d at 21 (Tex.Crim.App. 1998 Re
gardless           of who request the lesser offense instruction,the charge                         must no[t]
cConstitute              and        invitation for the jury             to reach    a Compromise or otherwise
unwarranted verdict as it did here,"

     To warrant a charge on unlawful Restraint evidence [Must] have been directly
[     Germane]           to     petitioner's        guilt    Onl[y]        of the Lesser offense,As mention
above        the     indictment           charges        petitioner       with     Aggravated Kidnapping Count
II      under        Section           20.04(a)     of     the    Penal Code, Aggravated Kidnapping is a
complete        offense              when   restriant        is    accomplished ,we're there's evidences
of     the actor specific intent to prevent liberation of the Victim,by secreting
or use or threateed the use of deadly force.V.T.C-A Penal Code § 20.01(2)west
2003 ) Citing Curry.v.State,966 S.W. 2d 203 ( Tex. App El Paso 1998) Abduct
ion     means        to        Restraint,      ,Here the state was also Required to prove in order
to     show        the        Lesser     included     offense of^unlawfulrLReaftraiWfe^^Had to.ishowc&r.
fiSQve-rU...•: that petitioner " intentionally                          ,or, "Knowingly     restrains   another
person        Melissa           Ferrera     by    restricting           her movement without her consent,so
as     to     interfere substailly with her "liberty" by moving Melissa Ferrera from
one      place           to     another "or" by confining Ms Ferrera TEX.PEN.CODE ANN § 20.02
(a)(West           2011        )    in this context Restraint is without consent ,if it is acc
omplished by "force,intimidation,or deception Id at § 20.01(1) (A)
      FOOTNOTE
     6,when the sufficiency of the evidence is challenge under state Law, appellate courts.measure
       the evidentiary sufficiency against the elements of the offense as defiend by the hypothicaly
       correct jury charge Gollihar.v.State.46.S.W. 3d.243 ( Tex.Crim.App.2001 )




                                                                 -9-
A     person          acts       intentionally                 'or' with intent with respect to the nature of
his conduct 'or' to a result of his conduct when it is his conseious objection
or'     desire          to       engage         in        the conduct 'or' cause the result ,A           person acts
knowingly             ,or, with Knowledge with respect to the nature of there conduct,or,
to     the       circumstances              surrounding             their       conduct when he or she is aware of
the     conduct ,and circumstance exist that the acts knowingly or with knowledge
with respect to a result of their conduct when ..when aware that there conduct
is reasonably to creat the results^ The record reveals the complainant                                          will-.
ingly left             the       friends        house with           Mr Magalde and one of there two doughter
to     go        to    a festival           in San Elizario,Texas Ms Ferrera,her dls^hter; rode with
petitioner             Magalde who drive her vehicle ,Once they arrived there Complainant
and     Mr       Magalde           got     into           an   argument /Complainant then refused to get out
the     vehicle, and attend the festival ,because petitioner was drunk which some
times        caused          a     problem, because he would become very jealous when with her,
after       she        refused to get out petitioner started the vehicle again and begain
to     drive          off     away        from the festival, Conplainant turned her head away from
him     and       he     struct           her        on    the side of her head, /Complainant then decided
she     dyah£;ed             to     exist        the vehicle ,although it was moving , But petitioner
grabbed          her     hair pulling her back                     to provent her from jumping out the moving
             8
vehicle,          ConplalilaBtn:attempted                      calling   911, Bat her phone was taken away from
her, petitioner drove to toware his mother house/once there he told complainant
to stay in the vehicle while he took their four.- year old doughter inside,But
complainant             got        out     the vehicle and beaginto run away but was stopped ,and
further assaulted by petitioner until he 's mother came out and                                      stood between-
then        to protect              complainant                from being further hit or assaulted by Magalde
complainant             when        got     a knief              from magalde mother house came back told him
to leave her along, he got in the vehicle and drove it away, ,


from        this       evidence           ,its        clear       that a charge on Unlawfull Restraint wasn't
warranted.;..?^",           that     trial           court       clearly    abused     it's discretion    submitting
it,9 Trujilo.v.State, 227 S.W. 3d at 164,168 ( Tex,App-Houst [1st Dist]2006)
it is for this reason the evidence is insufficient to support the jurys verdict
and finding that if he was guilty ,h'e was guilty only of the lesser offense ,.,
     FOOTNOTE

     7, Tex Penal Code § 20.02 (a)
    :8, Texas Penal Code § 6.03(b)
     9, The jury could no[t] have reasonable concluded that petitioner intentionally or Knowingly
       restrained.1'; i Ferrera, simply, cause he pulled her hair




                                                                         -10-
petitioner Constitutional rights                     to   due process where effected by this error
while     the       record       indicates       no specific objection          other then to the courts
charge        on    Kidnapping          (RR4,23-24-27       )      the sufficiency of the evidence is
measured        by the elements of the offense as defined by                      a hypothetically corr
ect jury charge            under the jackson standard, the reviewing court are to review
evidences          in    the record in the light most favorable to the jurys verdict,and
determine whether a rational jury could have found each element of the offense
was proven beyond a reasonable doubt,Jaskcon.v.Virginia,443                             U.S-307,318-20,99
S.CT,2781,2788-89,61 L.Ed,2d 560 (1979)                         the    court    recognizes     the    jury as
the     sole       judge        of the        weight and credibility of the witness testimony as
the     ultimate         fact     finder,      and    the   reviewing court presumes that the jury
resolved        any conflict            in     the evidence        in favor of the. verdict,so long as
such resolution is rational, the appeals court will no[t] defer to the resolut
ion. Brooks, v. State/323 SrW- 3d at 894-95 (Tex.Crim.App 20009 ) ,
A jurys         verdict         and    Judgment will be set aside ,if the evidence supporting
guilt     is       so obviously weak 'or' the contrary evidence is so over whelmingly
it out weighs the supporting evidence,                      Petitioner         asks   the   court    to look
to the charge and how it improperly instructs juror, First it doesn't charge
the Aggravated. Kidnapping in Count II of the indictment as [COUNT],Rather
it     instructs         juror        to find petitioner guilty in paragraph B,               the following
Error     Occurred         after         it    instruct     then to find Magalde guilty             by signing
form     A,        , it go's on to tell them to proceed to consider ];.p§iV.Sgraph B, which
lis" Aggravated Kidnapping charge COUNT II, unless you so find beyond a reason
able     doubt          or if you         have       a reasonable doubt thereof ,you will find the
defendant          Fernando       Magalde        Not guity of Robbery as charge in the indictment
signing (verdict                form    B )Then next proceed to consider paragraph B,Paragraph
B, of the charge                Reads the following ,
if you         from       the     evidence       beyond a reasonable doubt ,find that on or about
the     17th       day     of July        2010, in El Paso County,Texas the defendant Fernando
Magalde        did       then     and there intentionally or knowingly abduct another person
Melissa Ferrera /Hereinafter referred to as the Complianant^iby secaeingc.
" or" holding the complainant in a place were the complainant was notlikely
     FOOTNOTE —••

 10/in Kieschnick.v.State,911 S.W. 2d 156,161 (Tex-App waoo.1995 ) The Court of Appeals concluded
       that although kieschnick^did not raise an objection to the charge error raised en appeal .for
      first time,it nonetheless ccncluded it had no choice, But to Reverse Remand the judgment
 11/ The standard of review is the sane for both direct and circumstantial evidence cases,Kutzner
       .v.State,994.S.W.3<J.180,184 (Tex.Crim.App.1999)            the reviewing court is not to resolve any
      conflict of fact,weigh any evidence,or evaluate the credibility of any witnesses,


                                                            -11-
to     be       found, to-wit a Motor vehicle,with the intent to inflict bodily injury
on     the       complainant,then you shall find the defendant Fernando Magalde guilty
as charged            in    the        indictment                by using (Verdict form C)>Then Nsxt proceed
to     consider         paragraph            C,        Unauthorized use of a Motor vehicle,' ..Unless you
so     find        beyond    a reasonable doubt or> if you have a reasonable doubt thereof
or if you are unable to agree, Next proceed to consider "Unlawfull Restraint'.
...          Now     /if    you        find           from       the evidence ^beyond a reasonable doubt that
on     or       about the 17th day of July 2010 in El Paso County/Texas, the defendant
/Fernando          Magalde        did and there intentionally or knowingly Restraint another
person,         Melissa      Ferrera              then you will find the defendant guilty of Unlawful
Restraintiby using                ( Verdict form D) then next proceed to consider paragraph
C,     Unauthorized             use     of        a    Motor           Vehicle ) ..--Unless you so find beyond a
reasonable          doubt        ,or     if        you          have    a reasonable doubt thereof youwill find
the        defendant       Fernando          Magalde              ,Not    guilty   of All Charges related to the
Aggravated Kidnapping by using (Verdict form E ) then Next proceed to consider
paragraph C, (Unauthorized use of a Motor! Vehicle )

As     the      court      is     able to see , the jury instruction improperly included the
term       or"gRhf"asa" paragraph                  to charge the commission of the offense's ..Rather
then using the term ( COUNT) Which is what is used to charge an offense Citing
Seanz.v.State/131                S.W-    3d           at     43 ( Tex. App San Antinio 2003 )        And ARTICLE
21.24(b)         of the Texas Code of Criminal. Procedure^eheiphrase paragraph is used
to submit the Aggaravte Kidnapping offense shown in Paragraph B, of the courts
charge       which does no[t] go on to instruct juror to next consider the offense'
of     Unlawful         Restraint            as        a     Lesser       included of COUNT II as in[ PARAGRAPH
1     or    2    Etc,      Here       Unlawful             Restraint is improperly misjoi*id,And therefore
the paragraph that charged Aggravated Kidnapping charges more then one offense

Holcamb.v.State,745                S.W..          2d       at    903     ( Tex. Crim.App 1983 )   a fair reading
of Article 21.24(a)(b) along with Art 3.01,3.02.x>f the Penal Code,separate acts
or offense of a different penal statute may be charge in a single indictment so
long        as those offense are charged in separate COUNTS/ No paragraph may charge
more then on[e] offense, Here the charge does just that                                    /Therefore Constituts
an     invitation           to    the        jury to come to a compromise                or otherwise unwarranted
verdict          ( Model Penal Code § 1.07(5) at 134 (1985)                            Article 37.08 T.C.C.P
     FOOTNOTE

    12 Richarder.v.State,832 S.W. 2d at 171, ( Tex.Crim.App 1998 )
    13,even a pretrial failure of the charge to state the correct law of the offense to
       the facts of the case infringes on the accuseds federal and State Constitutional rights to
       due procass,due course of Law Newton.v.State,548 S.W. 2d 693,694 ( Tex.App 1983 )




                                                                         -12-
petitioner          claims         that     we,     the   Reviewing      Court should Reverse and Remand
the     decision of the 8th                 Court of Appeals          and its /.holding that the evidence
where legally sufficient to sustain his conviction,                              Although   no   specific
objection           was       made      ,The      8th court of appeals Erred in Not assigning Error
to     the     Erroneous           flaws       in   the   courts jury charge as part of its Judicial
Authoiritysuv:' granted power ,Barnas.v.State,644 S.W. 2d at 1, Rezac.v.State 782
S.W. 2d 869,870 ( Tex.Crim.App 1990 )in evalating his claim on appeal.

Since     the       evidence is measured for sufficiency; by looking at the indictment
as incorporated in the courts charges to the jury , Benavides.v.State,763 S.W.
2d     .587,588-89            (Tex.App         Corpus Christi 1988 pet Ref'd) The:ireviewing':GouifkK
examine        the       whole      charge and consider the workable relationship between the
abstrack part of abstract law to the facts of the case,                            Griffith.v.State 976
S.W. 2d 686,690 ( Tex.App.Tyler pet Ref'd ) and should ultimalely asks whether
a     nautral       review of           [ all ] the evidence both for and agains't           the finding
demonstrates             proof       of guilt is so obviously weak as to undermine confidence
in     the     jury's determination,as the fact finder^the jury may use common sence
and apply           common knowledge?observation, and experience gained,in the ordinary
affairs        of    life, when           giving      effect     to the inferences that may reasonably
                                           13
be drown from the evidence.

The     jury        is    Bound by the evidences and should therefore be limited to those
included       offenses            in     which a reasonable view of the evidence will sustain.,

as     such juror or no[t] to be free to pick and choose what offense the accused
should be found guilty of—and cannot be given the freedom to legally convict
the     accused          of    a    lesser included offense merely out of sympathy or for the
purposes of reaching a verdict , the charge here on /"Unlawful Restraint" only
invitated       juror          to more or less come to a compromise and Unwarranted verdict
after     reviewing            the evidence in the light must favorable to the verdict,This
court     should agree with petitioner that, Based on the charged error no rational
trier     of    reasonable              fact      finder could have found the essential elements of

Unlawful Restraint                 beyond       a reasonable doubt / even         if the proof of guilty
although       appears          adequate          , .if. taken alone it is greatly ouifc'. weight by the
contrary       proof          so that the beyond a reasonable doubt standard could not have
been met, Hopper.v.Evans,456 U.S.                         605,120 S.CT 2049,72 L.Ed.2d 367 (1982)

    FOOTNOTE

      Tbe due process requires that a jury only be instructed en a Lesser offense when the evidence
      raises the issue Article 36.14 V.C.C.P PLACES A DKTY on the trial judge to prepare a correct
       charge Lcyle.v.State,631 -S.W.2a.732-738( Tex.Crim.App 1982 )


                                                               -13-
when     the    state     fails       to    prove   each and every element beyond a reasonable
doubt ,if a challenge to the sufficiency of the evidences is sustained /petit
ioner would be entitled an Acquittal /Jordan.v.State,639                        S.W.    2d   at 477,478
( Texa.Crim.App.1982 ) Also See Burnks.v.United States,347 U.S,1, 96 S.CT,2141
57 L.Ed .2d.l (1978 )

In Brinage.v.State,918            -S.W.       2dat 644,475,76 ( Tex.Crim.App.1994 ) The court
of Criminal Appeals held that the state must prove that a Restraint was Comp
leted and that the petitioner evidenced a specific intent to prevent liberation
by either         secretion      or    deadly       force, grabbing the Complainant by the hair
and     pulling     her   back to prevent her from jumping out the moving vehicle ,in
an     efford     to   prevent        her    from possibility being hit ,ran over by another
vehicle      and Seriously hurt, and telling her to stay in the vehicle after that
reached his mother house              doesn't qualify as evidences preventing her liberat
ion by secretion or deadly forced

For     theses     reasons    delineated above petitioner would agpesj that the evidence
were leagally insufficient                 for the 8th court of Appeals to sustain his convi
ction



                                            PRAYER FOR RELIEF


Wherefore ,Premises Considered                 petitioners      prays    that   his    Judgment of the
120th District Court,and The Opinion of the                     8th Court of Appeal .V/be Reversed
and Remanded with an order for the trial court to enter a Judgment of Acquittal




                                                                        RESPECTFULLY Submitted



                                                                        Fernando Magalde
                                                                        TDCJ-ID NO 01828858
                                                                        McConnell Unit
                                                                        3001 S,Emily DR
                                                                        Beeville Texas 78102
                                                                        H/ [0 / 2015
FOOTNOTE

      14, in re winship 397 U.S 358,,90 S.CT 1068,25 L,Ed 368 ( 1970 ) Ths offense therefore must be
         proved beyond a reasonable doubt




                                                         -14-
                           CERTIFICATE OF    SERVICE




  I,Fernando Magalde ,hereby certify that a true and correct copy of the fore
going Petition for Discretionary Review     was mailed to the clerk of the Court
of Criminal Appeals   P.O.Box 12308 Captol Station Austin,Texas 78711,by place-
ing the same in the Mail Postage Box her at the McConnell Unit 3001 S,Emily DR
Beeville,Texas 78102 ,0n the dayi$fJ£LL_ and date of 10 2015




                                                        Respectfully. Submitted


                                                        #01828058
                                                        McConnell Unit
                                                         3001 S,Emily DR
                                                         Beeville,Texas 78102
                                                        4 / f0 /   2015




                                    15
                                   Case No.
                     (The Clerk of the convicting court will fill this line in.)


                   IN froCOURt OF-CRIMIN AL: APPEALS- OF TEXAS                          '

                    APPLICATION FOR A WRIT OF HABEAS CORPUS
                  SEEKING RELIEF FROM FINAL FELONY CONVICTION
             UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


i,.vi™. Fernando Magalde
NAME:        •—       _—


DATE OF BIRTH*

PLACED CONFINEMENT:                 McConnell Unit

tbCJ-PD;3StJMBER:- ;01828Q5{j ;/. -.                  :SID/NtJMBER::;              :.
(1)    This application concerns (check all thai/apply):

       D    a convictei: •                    •       parple;

       P    a sentence,                       •       ;)^n4ator^:rsuperivisidn'

       D    time credit                       0       out-of-time appeal or petition for
                                                      discretipnary review


(2)    What district court entered the judgment of the convictionypu/warit reiieffjppm?
       (Include the court number and county.)

       120th District Court,El paso County Texas



(3)    What was the case number in the^trial,court?

      20100D06141



(4)    What was the name t»f thfe trial judge?

       Maria Salas-Mendoza,




Effective: .January 1, :20M



                                                                                            Rev 01/14/14
(5)     Were you represented by counsel? If yes, provide theattorney'sijiame:

        Robert Riley & Jaime Gangara




(6)     What was thedate thai;the judgment was entered?

       January 25,2012




(7)     For what offense were you convicted and what was the sentence?

       Unlawful    Restraint                                         ___•'-

(8),    If you were sentenced on more than one count of an indictment in the/same cnurt at
        the same time, what counts were,you convicted of and what was the sentence in each
        count?



                                           N/A




$|      What was the plea ypu entered? (Check one.)

             O guilty-open plea             D guilty-plea bargain
             • not guilty                   Q nolo contenderelno contest:

        Ifypu entered different pleas to counts in a multi-count indictment, please;explain:
            ...      .                     N/A




(10)    What kind of trial did you have?

             • no jury                     H jiii^foi»guiltand punishment
                                           D jury for guilt, judge for punishment




                                                                                 Rev. 0:1/14/14;
(11)   Did you testify at trial? If yes, at what phase of the trial did you testify?

                                             N/A



(12)   Did you appeal from the judgment of conviction?

       EEJ yes-                             p. no


       If ypu did appeal, answer the following questions:

       (A) What court ofappeals did you appeal to?         8th Court of Appeals
       (B) What was the case number?          08-12-Q0064-CR         _       ;

       •(C): Wereypu representedby: counsel pn-appeai?; Ifyes, prpwde^the^attprney'fr
               name:

              M,Clara Hernandez & Penny Lee,Andersen


       (D) What was the decision and the date of the decision? Affirmed March 28,2014
(13)   DkI ypu file a petition for disCT^                       Court of CriminalAppeals?;

       HI yes                               P no;

       ifyon did file a petition for discletiohatyrwiew, answer the following questions:
                                                          N/A
       •(A) What was the case n umber?;

       •(B)    Whatwa® the decision andthe diatepf the-decision?      ,   ; N/A.


(14)   Have you previously filed an application for a writ of habeas corpus under Article
       11.07 of the Texas Code of Criminal Procedure challenging this conviction?

       fi ;yes                              .•; iio

       Ifyou answered yes, answer the following questions:

       (A) Whatwas the Court ofCriminal Appeals' writ number? WR 82-561-01




                                                                                       Rev. fit/14/14:
       •(B) Whatwa^the:decision ahd.^e,dateoftherdecisiori? January 2,2015,

       (G) Please identify the reason that the current claimsfwere not presented and could
           ript have been presented pn ypur previous: application.
        Because the Letter that was sent to the El Paso. Public defender office
         requesting     them to file for and extension of time was not transfered
         to the court of appeals ,due to a clerical error which caused the
         time period to expire, A Motion seeking out-of-time PRD was denied
        by the court of criminal appeals , Jfcine 16,2015 A Hebeas Corpus Applict-
          ion was gramted on Janua,ry,,,,,21;12015""'granting- petitioner* H'-TJrian'cir'to
          file this out-of-time petitioner for discretionary review now
          now before this Honorable Court




(15)   Dp ypu currently have any;petition: or appeal pending in any other state pr federal
       .court?-   .


       P:-yess                              Hi no;

       If you answered yes, please provide the name of the court and the case number:

                                              N/A                          J

(16)   If you are presenting a claim for time credit, have you exhausted your
       administrative remedies by presenting your claim to the time credit resolution
       system of the Texas Department of Criminal Justice? (This requirement applies to
       any final felony conviction, including state jail felonies)

       :• yes!                              B no.

       If you answered yes, answer the following questions:
       (A) What date did you present the claim?        . .           __

       (B) DidypnrjBcMve a decision and, if yes, what was the date of the decision?

                                                                     N/A


       Ifyou answered no, please explain why vou have notsubmitted your claim:




                                                                                Rev. 01/14/14
                                                   N/A




(17)   Beginning on page 6, state concisely every legal ground for your claim that you are
       being unlawfully restrained, and then briefly summarize the facts supporting each
       ground. You must present each ground on the form application and a brief
       summary of the facts. Ifyour grounds and brief summaryofthefacts have not been
       presented on theform application, the Court will not consideryour grounds.
       Ifyou have more than four grounds, use pages 14 and 15 of the form, which you
       may copy as many times as needed to give you a separate page for each ground, with
       each ground numbered in sequence. The recitation of the facts supporting each
       ground must be no longer than the two pages provided for the ground in the form.

       You may include with the form a memorandum of law ifyou want to present legal
       authorities, but the Cpurt will not consider grounds for relief set out in a
       memorandum of law that were not raised on the form. The citations and argument
       must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
       and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
       are challenging the validity of your conviction, please include a summary of the facts
       pertaining to your offense and trial in your memorandum.




                                             •5:




                                                                                Rev. 0M4-Z14
     GROUND'ONE*' Tne evidence                    is    insufficient     to support the jurys verdict
                         and finding of guilt for Unlawful Restraint




     FACTS SUPPORTING GROUND ONE:                         The   8th    court   of   Appeals    did not in
there Review of the sufficiency of the evidence to supporting the jurys finding
considerthe              Error in the courts jury charge on the Lesser included offense
that    was no[t]         warranted          by    or    from the evidences presented at the trial
of     this     cause     and        did not take into consideration that Unlawful Restraint
could     not     have    been        the    results when the complainant witness in this case
admitted that she was together with petitioner at a- friends house before
they all decided the leave and attend the festive ,The complainant rode with
petitioner in her truck to the festive, once they arrived there she refused
ta_ge£_au£_ner_r.ruckJ.pei:ir.ianer_srarted—vehicle In whichshe One 51 fjiere
doughter    rode   along in and begain driving off ,at some point complainant
truned away from petitioner and according to the complainant petitioner struck
her' on' the'side of her head, at which point she then decided she wanted to
give out the moving vehicle       , Once she attempted to do so ./petitioner in
and act to prevent complainant from being ran over or hurt by a passing vehicle
when petitioner begain to drive toward his mother"house the complainant stated
he continued pulling her by the hair, while driving to prevent her from exiting
once     that     arrived       at     his   mother house ,complainant stated petitioner told
her to stay put              , while          he: took their tour year old doughter inside, But
she     didn't     she     got       out the vehicle and begain running away ,But was stopped
petitioner mother came out the house and got betweeothe two of them to prevent
petitioner for assaulting her , at which point tne complainant-Went Inside
his mother house got a knift from her kitchen and returned ,then told petition
er to stay away from her , at which point petitioner simply got in the vehicle
-a/id drove it away , from this petitioner was charged in a three count indictment
 which    Robbery Count I Aggravate Kidnapping Count II And Unlawful use of
a    M<btor     Vehicle     Count       II    after argument          the jury was charged on the same
with     arid • additional - oftense               of    Unlawful     Restraint—ay a lessei included
     chairs^ of     the     aggravated Kidnapping                   ..the jury Acquitted him of Count
I,II and III, However the jury found him to be quilty only of a lesser offense
   Ondirect Appeal to the 8thcourt of Appeals /Petitioner asserted a
claim that alleged the evidence where insufficient to support ;the jurys verdict
the 8thc court of appeals disagreed with petitioner assessment of the claim
and in ah'd unpublished opinion affirmed tne judgment Of the trial courL ,
in this petition for discretionary review petitioner is asking the court
to look at the improper way that the jury charge instructs juror ,and the
way the 8th Court of appeal over looked this issue and Errenous flaws in
the court charge when conducting there review of the legal sufficieny at issue
now before this Honorable Court                           Se^ Memorandum at pages 1 -15




                                                                                              Rev. 01/14/14
