                                                                      ACCEPTED
                                                                 01-14-00593-CR
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                            1/26/2015 7:39:24 PM
                                                             CHRISTOPHER PRINE
                                                                          CLERK




       Case No: 01-14-00593-CR
                                                 FILED IN
                                          1st COURT OF APPEALS
                                              HOUSTON, TEXAS
IN THE TEXAS COURT OF APPEALS             1/26/2015 7:39:24 PM
                                          CHRISTOPHER A. PRINE
          FIRST DISTRICT                          Clerk


         HOUSTON, TEXAS


          TONY ESCOBAR
             Appellant

                  VS.

       THE STATE OF TEXAS
             Appellee


Appealed from the 338rn District Court
        Harris County, Texas

  Trial Court Cause Number: 1344348


   APPELLANT'S BRIEF

            WAYNE T. HILL
        Texas Bar No: 09656300
   4615 Southwest Freeway, Suite 600
          Houston, Texas 77027
Tel: (713) 623-8312 Fax: (713) 626-0182
            wthlaw@aol.com


     Oral argument is not requested
                      IDENTITY OF PARTIES AND COUNSEL


Presiding Judge at Trial
Honorable A. Reagan Clark
Sitting by Assignment
338th Judicial District Court
1201 Franklin
Houston, Texas 77002

Attorneys for the State of Texas

Trial attorneys for State
Justin K. Wood
Julie Fletcher
Assistant District Attorneys
1201 Franklin
Houston, Texas 77002

On Appeal:
Alan Curry
Assistant District Attorney
1201 Franklin
Houston, Texas 77002

Attorneys for Appellant

Trial Attorneys for Appellant
Sam Adamo
Sam Adamo, Jr.
3200 Travis, 4th Floor
Houston, Texas 77006

On appeal:
Wayne T. Hill
4615 Southwest Freeway, Suite 600
Houston, Texas 77027

The Appellant
Tony Escobar



                                     1
                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL               1

TABLE OF CONTENTS                            11

ISSUES PRESENTED                             111

INDEX OF AUTHORITIES                         lV

SUMMARY OF ARGUMENTS                          v
STATEMENT OF THE CASE                        Vl

RECORD CITATIONS                             Vl

STATEMENT REGARDING ORAL ARGUMENT            Vl

STATEMENT OF FACTS IN THE CASE                1
POINT OF ERROR# 1                            23
POINT OF ERROR #2                            23
POINT OF ERROR #3                            31
POINT OF ERROR #4                            34
POINT OF ERROR #5                            35
POINT OF ERROR #6                            37
POINT OF ERROR #7                            37
POINT OF ERROR #8                            37
POINT OF ERROR #9                            40
POINT OF ERROR #10                           41
POINT OF ERROR #11                           44
POINT OF ERROR#l2                            45
PRAYER FOR RELIEF                            46
CERTIFICATE OF WORD COUNT COMPLIANCE         47
CERTIFICATE OF SERVICE                       47




                                  11
                 ISSUES PRESENTED FOR REVIEW

POINT OF ERROR NUMBER ONE
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE
JURY'S VERDICT FINDING APPELLANT GUILTY OF CAPITAL MURDER
BEYOND A REASONABLE DOUBT WHICH REQUIRES THE ENTRY OF A
JUDGMENT OF ACQUITTAL (R-IV-VI)

POINT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR
INSTRUCTED VERDICT OF NOT GUILTY AT THE CLOSE OF THE STATE'S
CASE (R-VI-142,143)

POINT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED WHEN IT ADMITTED THE 911 TAPE INTO
EVIDENCE OVER APPELLANT'S OBJECTION (R-11-4,5) (R-IV-8,44)

POINT OF ERROR NUMBER FOUR
THE TRIAL COURT ERRED WHEN IT ADMITTED NUMEROUS AUTOPSY
PHOTOGRAPHS INTO EVIDENCE OVER APPELLANT'S OBJECTIONS (R-VI-
70-80; 82) (SX # 79,80,81,82,83,84,85,86,87,88,89,90,91,92,93)

POINT OF ERROR NUMBER FIVE
THE TRIAL COURT ERRED WHEN IT LIMITED APPELLANT'S CROSS
EXAMINATION OF SERGEANT CLOPTON REGARDING INFLUENCES AND
MOTIVES TO FABRICATE A STORY (R-V-12)

POINT OF ERROR NUMBER SIX
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
ESTABLISH WHAT QUESTIONS SERGEANT CLOPTON ASKED AMBER
THORNTONDURINGHERINTERVIEWWITHHIMONDECEMBER28,2011(R-
IV-278,279)(R-V-18)

POINT OF ERROR NUMBER SEVEN
THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
INTRODUCE AMBER THORNTON'S STATEMENT TO SERGEANT CLOPTON
IN EVIDENCE PURSUANT TO RULE 801(E)(l)(E) OF THE TEXAS RULES OF
EVIDENCE (R-IV-278,279)(R-V-12-17)

POINT OF ERROR NUMBER EIGHT
THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT AMBER
THORNTON'S STATEMENT TO SERGEANT CLOPTON UNDER THE RULE OF
OPTIONAL COMPLETENESS. (R-V-135-144)


                              111
POINT OF ERROR NUMBER NINE
THE TRIAL COURT ERRED WHEN IT PREVENTED APPELLANT FROM CROSS
EXAMINING AMBER THORNTON ABOUT HER HABIT AND ROUTINE OF
LYING TO LAW ENFORCEMENT TO AVOID RESPONSIBILITY FOR HER
ACTIONS. (R-V-159.160,193,194)

POINT OF ERROR NUMBER TEN
THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUESTED
JURY INSTRUCTION ON NECESSITY (R-VII-4) (SX # 59 & 60)

POINT OF ERROR NUMBER ELEVEN
THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUEST FOR
A JURY INSTRUCTION ON THE LESSER OFFENSE OF THEFT (R-VII-5,6)

POINT OF ERROR NUMBER TWELVE
THE TRIAL COURT ERRED WHEN IT COMMENTED ON THE WEIGHT OF THE
EVIDENCE IN THE INSTRUCTIONS GIVEN TO THE JURY CONCERNING THE
LAW OF CONSPIRACY (R-VI-4,5) (CR-1-240)
                             INDEX OF AUTHORITIES

CONSTITUTIONS
U.S. Constitution Fifth Amendment                         27
U.S. Constitution Sixth Amendment                         37
U.S. Constitution Fourteenth Amendment                    25

STATUTES
Texas Penal Code 6.01, 7.01 and 7.02                27,28,29
Texas Penal Code 9.22                                  42,43
Texas Penal Code 15.02                                    46
Texas Penal Code 19.03(2)                                 24
Texas Penal Code 31.03                                    44
Texas Code of Criminal Procedure -Article 36.15           42
Texas Code of Criminal Procedure -Article 38.05           46
Texas Code of Criminal Procedure - Article 38.14          30
Texas Code of Criminal Procedure -Article 44.25           27
Texas Rules of Evidence 107                            38,39
Texas Rules of Evidence 401                               32
Texas Rules of Evidence 402                               34
Texas Rules of Evidence 403                            32,34
Texas Rules of Evidence 404(b)                            41
Texas Rules of Evidence 406                               40
Texas Rules of Evidence 701                               36
Texas Rules of Evidence 702                               36
Texas Rules of Evidence 801                            38,39
Texas Rules of Appellate Procedure - 9 .4                 47
Texas Rules of Appellate Procedure - 43.2©                27

CASE LAW
Bachus v. State                                           46
Bignall v. State                                          44
Booth v. State                                            42
Brooks v. State                                           25
Burks v. U.S.                                             31
Castillo v. State                                         30
Clewis v. State                                           25
Comet v. State                                            43
Dowthitt v. State                                         30
Ex Parte Thompson                                         29
Flores v. State                                           35
Garza v. State                                            27
Gollihar v. State                                         25
Greene v. Massey                                          31
Guerrero v. State                                         41

                                          lV
Hightower v. State               25
Hill v. State                   29
Holiday v. State             44,45
Homes v. South Carolina         40
Hudson v. State                 27
Hughes v. State                 29
In Re: Winship                   25
Jackson v. Virginia       25, 26, 31
Jones v. State                   46
Jordan v. State                  37
Juarez v. State                  43
King v. State                    39
Laster v. State                  26
Mccullen v. State                25
Meadow v. State                  39
Montgomery v. State              33
Morrison v. State                28
Mullaney v. Wilbur               25
Narvaiz v. State                 26
Patrick v. State                 28
Perry v. State                   34
Rachel v. State                  32
Ransom v. State                  28
Rousseau v. State                44
Walters v. State              39,40
Weatherred v. State              36
Reese v. State                   35
Stobaugh v. State                31
Tillman v. State                 37
USv. Maceo                       37
Valdez v. State                  28
Webb v. State                    33
Winn v. State                    30
                              SUMMARY OF ARGUMENT


POINT OF ERROR #1
Where the evidence is insufficient as a matter of law to support a jury's verdict under any
theory of law, the Appellate Court must reverse and enter a judgment of acquittal.

POINT OF ERROR #2
Where the State's evidence does not meet the legal standard to overcome an instructed
verdict, the Appellate Court must reverse and enter a judgment of acquittal.

POINT OF ERROR #3
Where evidence from a 911 tape is irrelevant to any issue in the case and is highly prejudicial,
it should be excluded as evidence at trial.

POINT OF ERROR #4
Where autopsy photographs are highly prejudicial and gruesome and there is no issue
regarding the cause of death, the evidence should be excluded at trial.

POINT OF ERROR #5
Appellant is entitled to full and complete cross-examination concerning a witness' motive to
fabricate testimony.

POINT OF ERROR #6
Appellant is entitled to present inconsistent statements to impeach the credibility ofwitnesses.

POINT OF ERROR #7
Appellant is entitled to present substantive evidence of a co-conspirator's statement pursuant
to Rule 801 of the Rules of Evidence.

POINT OF ERROR #8
Appellant is entitled to present the full statement of a witness during cross-examination under
the Rule of Optional Completeness.

POINT OF ERROR #9
Appellant is entitled to present evidence of habit and routine of a State's witness where it is
critical to a credibility evaluation and determination.

POINT OF ERROR #10
Where evidence is raised that Appellant acted in accordance with Texas Penal Code, Section
9.22, he is entitled to a jury instruction on the defense of necessity.



                                               v
POINT OF ERROR #11
Where evidence is raised that Appellant is only guilty of the offense of theft, he is entitled to
a jury instruction on the lesser offense of theft.

POINT OF ERROR #12
The Trial Court is prohibitive from commenting on the weight of the evidence when
instructing the jury on the law of the case.
                              STATEMENT OF THE CASE

       Appellant was indicted for the offense of capital murder. (CR-I-8) The indictment

filed in this matter alleged that on or about December 20, 2011, in Harris County, Texas,

Appellant did then and there unlawfully, while in the course of committing and attempting to

commit the robbery of Russell Lopez, intentionally cause the death of Russell Lopez by

striking Russell Lopez with a deadly weapon, namely a hammer. A second paragraph of the

indictment alleged that on December 20, 2011, in Harris County, Texas, Appellant did then

and there unlawfully, while in the course of committing and attempting to commit the robbery

of Russell Lopez, intentionally cause the death of Russell Lopez by stabbing Russell Lopez

with a deadly weapon, namely a sword. (CR-I-8) A jury found Appellant guilty of capital

murder as charged in the indictment. (CR-I-258) Appellant's punishment was automatically

fixed at life in the Institutional Division of the Texas Department of Criminal Justice. (CR-I-

261) Appellant filed a Motion for New Trial on June 10, 2014. (CR-I-265) Appellant gave

Notice of Appeal on July 3, 2014. (CR-I-271) The Trial Court's Certification ofDefendant's

Right of Appeal was signed on July 7, 2014. (CR-I-272)

                                RECORD DESIGNATION

       Record citations are designated:

       Clerk's Record        (CR-vol-page)

       Reporter's Record (R-vol-page)

                  STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is not requested



                                              Vl
                      STATEMENTS OF FACTS IN THE CASE

       Amanda Shonte Made worked with the Complainant's wife at My Fit Foods. On the

evening of December 20, 2011, she and Marie Lopez (the Complainant's wife) closed the My

Fit Foods store and went to the Complainant's home located on Plantain Drive. (R-IV-39)

Upon arriving, Made noticed that the Complainant's black Tahoe was not in the driveway.

When Made and Marie Lopez entered the home, they found the Complainant (Russell Lopez)

lying on the floor in the entrance of the bedroom area. (R-IV-41) Made described the

Complainant's face as being distorted to the point that she could not recognize him. His face

was bloody and swollen. (R-IV-43)

       Made acknowledged that she suspected that Complainant was involved in the drug

business involving marihuana. (R-IV-49) The Complainant had confided in Made that he had

previous troubles with the law involving marihuana. (R-IV-49) Made noted that the last time

the Complainant was employed was approximately six months prior to this date. (R-IV-58)

Made agreed that she would not condone drug dealing out of a home because it could

endanger children. (R-IV-58)

       Dawn Disneau with the Westlake Fire Department declared the Complainant dead on

the scene. (R-IV-70) She observed that the Complainant had a sword laying across his left

chest and left arm. (R-IV-72)

       Artur Kuk with the Harris County Sheriffs Department responded to the Plantain

address and observed another officer carrying two children out through a window. (R-IV-80)

The entire house was ransacked. (R-IV-84) Kuk indicated that he learned the children had

been tied up with clothing and the Complainant's Tahoe had been stolen. (R-IV-89)

       Maurice Carpenter, a crime scene investigator with the Harris County Sheriffs



                                              1
Department, noted there was no signs of forced entry at the Plantain address. (R-IV-102)

Carpenter described the house as ransacked and noted that there were apparent blood stains

throughout most of the areas of the house. (R-IV-103) He noted that there was a large

concentration of blood near the pantry door and the bedroom door. (R-IV-104)            The

Complainant's body was located in the master bedroom. The area around the Complainant

was in disarray. (R-IV-105) Carpenter said it appeared that the body had been moved from

an area near the dining room entry area into the bedroom area. (R-IV-106) Carpenter noted

the appearance of numerous wounds on the Complainant's face and neck. (R-IV-106)

Carpenter also noted that there were shoe prints throughout the house. (R-IV-110) He also

noted the appearance of what appeared to be a gouge marknear the pantry room door. (R-IV-

126) Carpenter also observed a scabbard (sheath) that holds the sword, laying next to the

Complainant. (R-IV-130) He described the sword as an ornamental or collector type sword.

(R-IV-131) Blood evidence was found throughout the location including on the ceiling and

in the light fixture in the bedroom. (R-IV-132) When Carpenter searched in the bathroom

area, he located a box located inside a hollowed-out area on the bathroom cabinet. Inside the

box, Carpenter found what appeared to be jars ofMarihuana. (R-IV-135) The crime scene

was processed for latent fingerprints with negative results. (R-IV-139-141) The scene was

also processed for DNA evidence. (R-IV-141) Carpenter also photographed various shoe

prints within the house. (R-IV-146, 147) Carpenter recovered knotted clothing from the top

bunk bed in the children's room. (R-IV-154) On December 23, 2011, Carpenter became

aware of the fact that a vehicle belonging to the Complainant was found. (R-IV-155)

Carpenter processed the vehicle for fingerprints and DNA. (R-IV-156) The vehicle was found

partially submerged in water. The vehicle that was outside the water had been burned. (R-IV-



                                              2
157) A cell phone, shotgun shell, and a lighter were recovered inside. These items were

tested for DNA and processed for fingerprints. (R-IV-157)

       During cross examination, Carpenter opined that the beating with a blunt force object

appeared to have occurred in front of the pantry in the kitchen area. (R-IV-160) He was

unable to tell where the beating actually began. (R-IV-161) Although blood was found in the

couch area, Carpenter indicated that he did not believe the beating took place there. (R-IV-

162) He indicated that the blood on the couch could have been stains transferred from

someone having blood on their hands or other surface onto the couch. He agreed that may not

have been how the blood got there. (R-IV-162,163) While Carpenter indicated his opinion

would not be that the dragging occurred from the couch area past the pantry and into the

bedroom area, he admitted he could not positively state that it did not happen that way. (R-IV-

164) He said that from the drag marks it was possible that someone had taken the

Complainant by his feet and dragged him into the bedroom, and that it could have been done

by one person. (R-IV-164) Carpenter found a claw hammer at the scene which was tested for

blood with negative results. (R-IV-165) Carpenter described the sword having a fabric

wrapped around it, but he was unable to state whether DNA would be more likely to have

been found on that surface. (R-IV-166) He also acknowledged that if DNA was found on the

scabbard (the sheath) that would indicate that someone handled the scabbard. (R-IV-166) He

searched the home for fingerprints and found none belonging to Appellant. (R-IV-167).

When asked about the gouge mark on the pantry door, Carpenter was unable to state whether

it was caused by a sword, a hammer, or some other object. (R-IV-168) Carpenter opined that

the area of most trauma occurred in the pantry area, but he was unable to state whether the

Complainant had been clubbed or hit over the head at the couch area. (R-IV-172,176)



                                               3
      Marie Lopez, the Complainant's wife, testified she was working at My Fit Foods in

December, 2011. (R-IV-185) Her husband was doing some remodeling work at his uncle's

home, but he was also receiving unemployment. She indicated that he predominately took

care oftheir kids while she worked. (R-IV-186, 187) She acknowledged that her husband used

Marihuana. Leading up to the date of December 20, 2011, Marie Lopez indicated that she

became suspicious of one ofthe individuals her husband was hanging out with (not involving

any of the defendants in this case). (R-IV-191) At the time of her husband's death, she had

no idea that her husband was dealing drugs out of their home. (R-IV-191) Marie Lopez

indicated that had she known, she would not have been okay with his drug dealing. (R-IV-

191) She was unaware of a secret compartment underneath the bathroom counter in which

her husband stored dope. (R-IV-192) Marie Lopez indicated she did not know who Appellant

was. She also did not know Joseph Facundo. The only individual she knew was Amber

Thornton. (R-IV-193) She described Amber as just somebody that she had met. (R-IV-194)

On December 20, 2011, the Complainant was to watch the children while Marie Lopez was

at work. (R-IV-196, 197) Lopez was unable to reach her husband by phone throughout the

day. (R-IV-198) When she and the Complainant's cousin (Shonte) arrived at the home, Lopez

noted that their black Chevy Tahoe SUV was not in the driveway- this concerned her. (R-IV-

200) Upon entering her home, Lopez noticed that chairs were turned over and Julianne was

sitting on the couch by herself. Her husband Russell was laying on the floor in the bedroom

with blood everywhere. (R-IV-202) After attempting CPR on her husband, and not getting

a response, Lopez walked into the bedroom and found the children with their hands tied

behind their back. (R-IV-204) Lopez took the children out through a window so as not to

disrupt the scene. (R-IV-206) Lopez identified a photograph of a safe taken from their home



                                             4
and indicated that other property, including a TV, a game system, a jewelry box, and the SUV

were all missing. (R-IV-209) ·

       During cross examination, Lopez acknowledged that she only made $12.00 per hour

working at My Fit Foods, while her husband was on unemployment. (R-IV-211,212) After

detailing some ofher expenses, including a $700 payment on the Tahoe SUV, Lopez indicated

that she would be surprised to have heard that her husband had $3,000 to $4,000 cash on hand

on the night of his death. (R-IV-213) Lopez admitted that when she spoke with Sergeant

Miller she told him that she was surprised. She never saw the drugs and had a huge issue

with that. She also told Miller that she had been talking about leaving the Complainant

because ofthe drug issue. (R-IV-214) In her interview with Sergeant Miller, Lopez never told

him that her husband was working for his uncle doing a remodeling job. The incident that she

was concerned about involving another individual and her husband turned out to be where a

man gave Lopez money for a watch. Lopez told her husband that he was getting involved

with the wrong people. She described the man as scary, having a tattoo on his neck. (R-IV-

215) She gave Miller the names of several individuals that she found to be questionable,

including Mike T, Blake and Amber. (R-IV-215, 216) Lopez had not made the connection

between those people and her husband's drug use or drug sales. (R-IV-216) Additionally,

Lopez questioned whether or not an individual known as Jafar could have been involved in

something like murdering her husband. (R-IV-218,219) Despite her concerns about her

husband's drug use, and drug sales, Lopez still maintained that she did not believe that her

husband was putting the kids in harms-way because of it. (R-IV-219)

       Craig Clopton with the Harris County Sheriffs Department Homicide Division

testified that he was assigned this case. (R-IV-223) After describing the initial work at the



                                              5
scene on Plantain Drive, Clopton noted that a 2007 Chevy Tahoe was missing. (R-IV-226)

As part of his investigation, Clopton made arrangements for two of the children who were

found atthe crime scene to be taken to the Children's Assessment Center for interviews. (R-

IV-230) The children eliminated possible suspects that Clopton was looking into at the time.

(R-IV-233) Clopton's opinion was that robbery was the motive behind the killing. (R-IV-233)

Additional names were developed in his investigation, including Amber Thornton and Joseph

Facundo. (R-IV-236) On December 28, 2011, Clopton interviewed Amber Thornton when

she voluntarily came to the homicide department. (R-IV-23 7) Clopton described the interview

with Thornton as lengthy. Clopton indicated that an additional person (the Appellant) was

developed and that his focus sharpened on Joseph Facundo. (R-IV-237) After the statement

of Amber Thornton on December 28, 2011, Clopton made his primary suspects as Thornton,

Joseph Facundo, and Tony Escobar. (R-IV-238) Clopton put together a photo spread of this

various individuals and presented them to Caden Lopez, one of the children. (R-IV-240)

Caden identified the photographs of each of the individuals. (R-IV-241-243) Clopton then

took this information to the District Attorney's Office where he obtained capital murder

charges on all three of the suspects. (R-IV-244) Thornton was arrested when she was

walking down a street. (R-IV-246) Clopton, along with his partner Miller, went to Laredo,

Texas, where Joseph Facundo and Tony Escobar were in custody at the Webb County Jail. (R-

IV-248) At the Webb County Jail, Clopton took a statement from Appellant as well as DNA

samples. (R-IV-249) After his arrival in Houston from Laredo, Appellant initiated a

conversation with Clopton. On January 4, 2012, Clopton received a tip and went and spoke

with an individual named David Tillman. (R-IV-253) Clopton met with Tillman who

provided a small safe. (R-IV-254) Clopton also explained that he made efforts to locate the



                                             6
murder weapon or weapons in the case. He indicated that Escobar had told him that the

hammer that was used to kill Russell Lopez was thrown in the water not far from where the

Complainant's Chevy Tahoe was recovered. (R-IV-255, 256) This hammer was never

recovered by the Marine Division divers went looking for it. (R-IV-256, 257) Clopton then

went to Appellant's house and met with his mother who provided a cell phone to Clopton. (R-

IV-257)

       During cross examination, Clopton was asked how long it took him to determine that

it was a robbery home invasion after observing the scene. When pressed for a time line,

Clopton refused to provide any specifics. Clopton stated that the could not tell exactly when

he formed the opinion, but he would acknowledge that it was not more than a day later. (R-IV-

263) When asked if it was within 24 hours of the initiation of his investigation, Clopton

responded by saying, "Well, you 're trying to pin me down on an exact time frame, which I'm

not going to adhere to." (R-IV-263) When asked to acknowledge that he was investigating

capital murder, Clopton merely said, "At some point, yes." (R-IV-264)              Clopton did

acknowledge that he was able to determine that this was a drug related robbery murder. (R-

IV-264) When asked if that wouldn't have been within the first 24 hours, Clopton again

refused to answer directly by stating, "J just can 't - -, you 're trying to box me in on that. I

don't know at which point I made the determination it was robbery or drug related." (R-IV-

265) He went on to state, "You keep going back to the same time frame. I can't give you a

time frame." (R-IV-265) Clopton failed to investigate any burglaries within a five mile radius

of Russell Lopez's house as part of his investigation. (R-IV-267) When asked whether, in his

experience as a detective, Clopton found that drug dealers would buy stolen property from

customers who were committing burglaries and trade the property for drugs or money,



                                               7
Clopton acknowledged that was true. (R-IV-267, 268) Clopton also agreed that dealing drugs

out of a person's house is dangerous, not only to the individual but to their family members

in the house. (R-IV-270)

      When Clopton was questioned about interrogation techniques, including the Reid

technique developed by a former police officer in Chicago, Clopton acknowledged being

familiar with it. (R-IV-271) Clopton indicated that once he was in the homicide division he

went through the Reid technique process. (R-IV-271) Clopton was reluctant to acknowledge

his use of the Reid method or how it actually played a role in this case. Clopton denied that

once Amber Thornton began telling her story to him that his interview with her became an

interrogation. (R-IV-273,27 4) Although Clopton acknowledged having reviewed Thornton's

statement prior to testifying in court, he was unable to remember whether he had floated his

theme of how the murder took place to Amber Thornton when he was interrogating her. (R-

IV-274) Clopton acknowledged that as part of his interrogation technique he was allowed to

lie to an individual. He also indicated another technique when interviewing a suspect is to

offer them a way out. (R-IV-275)        When specifically asked whether, when he was

interviewing Thornton, he give her a way out, or did he direct her to make incriminating

statements in the case against Joseph Facundo and Tony Escobar, Clopton responded by

saying, "Did I do what?" (R-IV-27 5) When the question was repeated to him, Clopton merely

said, "J can't say I agree with that." (R-IV-276) When Appellant's counsel continued to

press Clopton asking him "Did you continually on more than one occasion - - on this occasion

during this interview with her, this interrogation, did you continue to float the theme to her

that this was a robbery murder and that it had been planned before going over there."

Clopton's response was, "!twas an interview." (R-IV-276) When questioned whether it was



                                              8
robbery murder that had been planned before going to the Lopez house, Clopton again refused

to give a direct answer, merely stating, "!twas an interview. !twas not an interrogation." (R-

IV-276) Once again, when counsel asked, "Did you float that theme to her." Clopton

responded, "You asked me that. I don't know        if I floated that to her." (R-IV-277) When
Clopton was asked whether he recorded his interrogation of Thornton, he indicated that he did

an audio recording and that he intentionally chose not to do a video. He then attempted to

explain that the Harris County Sheriffs Office was having problems with their video

equipment. (R-V-7) He acknowledged having listened to the recording after it was taken on

December 28, 2011. (R-V-8) Clopton finally admitted that after Caden Lopez made his

identifications, it was safe to say that Clopton' s theory was that it was a planned robbery that

resulted in a murder.(R-V-9) He qualified his response by stating that his theory was that the

Complainant was robbed and that it was planned. Clopton indicated that who exactly was

involved in it, and what exactly everybody's role was, he did not know. (R-V-9) He further

admitted that he had no direct knowledge that there was a conspiracy or a plan to rob Lopez.

(R-V-10) Clopton was asked whether he was aware of what Thornton's story was now after

accepting a plea bargain deal, to which he said, "J don't know what the parameters ofthat is. "

(R-V-10) Clopton did acknowledge that he considered Thornton a co-conspirator acting with

Joseph Facundo and Tony Escobar in the commission of the crime that resulted in the death

of Mr. Lopez. (R-V-12) Clopton determined that Frances Tillman had opened the safe which

belonged to Lopez and that Mr. Tillman knew Amber Thornton and Joseph Facundo. (R-V-

19) Clopton was aware that an individual in a white Honda brought the safe to Tillman.

Clopton never omitted the Honda or the driver of that vehicle. (R-V-20) When Clopton was

asked whether he spoke with an individual named James Wayland aka "Blinkie," he again



                                               9
became evasive. When asked whether he had taken a statement from Blinkie, Clopton said,

"!twas a statement. I didn't take a statement from Blinkie." (R-V-21) When asked how he

would categorize the conversation he had with Blinkie, he responded, "I don't know what you

mean how did I categorize it." (R-V-21) Clopton acknowledge that he surreptitiously

recorded "the conversation" and then differentiated a conversation from the statement because

he didn't tell the individual that he was "taking his statement from him." (R-V-22) When

Clopton went to Laredo to question Tony Escobar, he indicated that he took a recorded

statement. (R-V-23) Clopton once again indicated that he decided to take an audio recorded

statement. When asked whether the Webb County video equipment was broken, Clopton

responded, "I have no idea. I'm not required to video. It is strictly up to my option, I prefer

to audio it. "(R-V-24) Clopton did not ask the Webb County officials whether they had video

equipment. Interestingly, when Clopton was asked whether he would agree as a homicide

investigator that if you have a video of someone's statement, whether it was Amber

Thornton's or Tony Escobar's, or anyone, that it eliminates issues with whether or not the

statement was coerced or intimated or involuntary. Clopton responded, "No." And when

again asked "Wouldn't you agree with that?" Clopton again responded, "No." (R-V-25)

When asked whether it eliminates someone claiming it was involuntary, because you could

see them on the screen and see them on TV, Clopton stated, "I disagree with that." (R-V-

25,26) In an interesting revelation, Clopton went on to state "And that's through my

experience. I have had individuals say that we were on video, that I took them out of the

room and twisted their head and brought them back in and made them say things. So it

doesn't eliminate that." (R-V-26) Although Appellant voluntarily gave DNA swabs, Clopton

was not able to get voluntary swabs from Amber Thornton or Joseph Facundo. (R-V-26) On



                                              10
January 3, 2012, Clopton got word that Appellant wanted to speak with him. When Clopton

went to speak with Appellant, Clopton recorded his statement on audio. When Clopton was

asked whether he inquired whether or not the jail at the Harris County Jail had video

equipment, he indicated that he did not inquire about that. (R-V-27)         Clopton never

determined who the women were that drove Appellant and Facundo to the border. (R-V-29)

Once again, when Clopton was asked about the "statement" he took from Mr. Wayland aka

"Blinkie," Clopton again argued that it wasn't a statement but it was a report. (R-V-29) He

did, however, acknowledge that it was a conversation connected to his investigation of the

murder ofRussell Lopez. (R-V-30) Clopton' s investigation never determined what happened

to the jewelry which was taken from Russell Lopez's home on the night he was murdered. (R-

V-31)

        Raymond Campos, a crime scene investigator with the Harris County Sheriffs

Department, was called out to recover a vehicle that was involved in the investigation. (R-V-

40) The vehicle was found partially submerged in a body of water. (R-V-43) The portion

of that vehicle that was out of the water was totally burned. (R-V-44) Campos was able to

confirm that the vehicle belonged to Russell Lopez. (R-V-45) Campos noted that the keys to

the vehicle were still in the ignition when it was recovered. (R-V-47) Among the items

recovered near the scene of the vehicle were a disposable lighter, an Academy sports bag, as

well as a charcoal lighter bottle. (R-V-52)

        Amber Thornton who grew up in the Katy area, testified that she was 24 years of age

and had a five year old son. (R-V-55,56) After admitting that she had been convicted of theft

and sentenced to one year in the Harris County jail, Thornton admitted that she had been

involved in drugs, including cocaine, marihuana and pills such as Lorcet and Lortab. (R-V-59)



                                              11
                                                                                                  I
                                                                                                  I




When testifying, Thornton was housed in the Harris County Jail on medication for anxiety and

depression. Thornton acknowledged that she was charged with capital murder, along with

Appellant and Joseph Facundo. (R-V-60) Thornton also acknowledged that she learned she

could be facing either the death penalty or life without parole. After her arrest, Thornton was

appointed a lawyer (Charles Brown). (R-V-60) At some point after being charged with capital

murder, Thornton expressed an interest in wanting to cooperate, possibly testify against either

of her co-defendants. (R-V-61) Thornton told the jury that she had pled guilty to the reduced

charge of aggravated robbery. She claimed she had not been promised anything for her

cooperation. (R-V-63) Thornton testified that she was eligible for probation. (R-V-64) She

testified that she, Joseph Facundo and Appellant, would do drugs together. (R-V-66)

Thornton explained that in December of201 l, she was 22 years of age, Joseph Facundo was

18 and Appellant was 17. (R-V-67) She identified Blake Kramer as her boyfriend in

December of 2011. (R-V-67) In December of 2011, Blake was in jail on a burglary of a

habitation charge. (R-V-68)      Thornton indicated that she knew Russell Lopez (the

Complainant) because he was the neighborhood drug dealer. (R-V-69) She had known Lopez

for 5 or 6 months prior to his death. (R-V-69) Thornton admitted that the drugs purchased

from Lopez included cocaine, pills and marihuana. She also indicated that she observed

Facundo buy drugs from Lopez. (R-V-70) Thornton never saw Appellant buy any drugs from

Russell Lopez. (R-V-70) She indicated that as far as she knew Russell Lopez was Tony

Escobar's connection for drugs. (R-V-70) Thornton admitted that on occasion she would go

to Russell Lopez's house for drugs. (R-V-71) Thornton described a vacant house near where

her parents lived which they called "Vaco" where they would hang out and do drugs. (R-V-

73) She testified that she would go to the vacant house along with Joseph Facundo and



                                              12
Appellant. (R-V-76) Thornton described her relationship with Joseph Facundo as pretty close.

(R-V-78) None of the three (Thornton, Facundo, or Escobar) had a car. (R-V-79,80)

Thornton reconfirmed that Russell Lopez's relationship with Tony Escobar was not really that

much. Thornton stated that Lopez had a closer relationship with her and Joseph Facundo.(R-

V-82) Thornton explained that Joseph Facundo was mad at Russell Lopez over a gun that was

missing. (R-V-83) On December 20, 2011, Thornton explained that after getting off work

from Signature Dry Cleaners she went home, sat outside and smoke legal weed (Kush). She

indicated that at the time her son was in day care. (R-V-83, 84) After getting her son from day

care at around 8:00 p.m., Thornton went to the "Vaco" to get high. (R-V-84,85) Appellant

and Joseph Facundo were both at the house when Thornton arrived and they smoked

marihuana while Thornton smoked her "Kush." (R-V-85) She stated that she smoked her

"Kush" and not real marihuana because she was on probation. (R-V-86) During the 20 or 30

minutes that they stayed in the vacant house smoking, Thornton said that Joseph Facundo

came up with a plan to rob Russell Lopez to get money and drugs. (R-V-86) Thornton stated

that the plan had been discussed on a previous date by Facundo. She explained that the plan

was for them to go over to Lopez's house to sell Lopez a laptop for money that Thornton

owed to Lopez. (R-V-87) She was to sell the laptop to Lopez and get three 20's of coke,

which meant three bags of coke, each valued at $20.00. (R-V-87) Thornton explained that

the laptop belonged to Appellant and that it was at the vacant house when she arrived. (R-V-

88) Thornton explained that the "plan" was for them to go over to Lopez's house and then

Facundo was going to hit Lopez over the head with a hammer and Appellant was going to tie

up the kids. The three were going to steal all of Lopez's stuff and load it in the Tahoe and

leave. (R-V-88) Thornton indicated that she did not know whether kids would actually be at



                                              13
the house. She indicated that the hammer came from Facundo and that she saw it while they

were inside the vacant house. (R"'.'V"'.'89) Thornton claimed Facundo kept the hammer in his

pocket. (R-V-90) Thornton further explained that Facundo was upset and mad with Lopez

because he believed that Lopez had stolen a gun from him. (R-V-90,91) Thornton stated that

when she entered the house she observed Lopez sitting in a chair in the dining room feeding

his baby. (R-V-93) When they entered, they handed the laptop to Lopez and then put it on the

table and they grabbed three 20's of coke. (R-V-94) Thornton explained thatJ oseph Facundo

was standing behind Lopez as was Tony Escobar. She stated that when Lopez took the laptop,

Tony Escobar took the bags of cocaine. (R-V-97 ,98) Thornton then said that Facundo got the

hammer out and hit Lopez inthe back of the head over and over. (R-V-98) She stated that

Lopez then fell to the ground right next to the chair. (R-V-98) She described that the baby

was sitting in the high chair. Facundo told her to get the baby and to make the baby stop

crying. At this time, Appellant was in the room with the other children. (R-V-99) Thornton

said that at the very beginning when Facundo was striking Lopez, Appellant had already left

the dining room and went into the other back room. (R-V-99) She described Appellant being

gone for 3 to 4 minutes. (R-V-100) Thornton then described looking through cabinets,

opening drawers and finding jewelry and a gun and that they took those items and piled them

up. (R-V-101) Thornton explained that the whole time that Facundo was hitting Lopez with

the hammer, it was at one location. (R-V-102) Thornton explained that they found the car

keys and that Facundo and Appellant placed the items into the Tahoe. (R-V-102) She

explained that both Facundo and Appellant drug Lopez's body into his room. (R-V-103)

Thornton said that Facundo got a sword and was about to cut Lopez's throat or stab him with

it when he told her not to look. (R-V-104) She stated that Facundo and Appellant were both


                                             14
in Russell's room at that time. (R-V-104) Thornton did not see what happened inside the

bedroom. She explained that Joseph Facundo was the one who was responsible for using the

sword on Russell Lopez because he was holding it in his hand. (R-V-105) Facundo drove the

Tahoe and they went back to the vacant house where they unloaded the items taken from

Lopez's house. (R-V-107) They placed the items in the attic of the vacant house. (R-V-107)

Thornton acknowledged that she had blood on her feet, shoes and clothing. She explained

that she had to go home by 10:00 p.m. because she had a curfew placed on her by her mother

and father. (R-V-109) Thornton then explained that she took her clothing and placed them

in a bag and threw them away. (R-V-109) Thornton explained that the Tahoe was taken to

an area called "the Cliffs" where they would swim, have bonfires and smoke weed and party.

(R-V-110) She learned about what happened to the Tahoe when Joseph Facundo explained

things to her later. (R-V-110) She did not accompany Facundo to the Cliffs area. (R-V-110)

Thornton was still involved in the situation and planned to sell jewelry and she helped find

someone to open the safe taken from Lopez's home. (R-V-111) Thornton contacted her friend

David Tillman to open the safe. (R-V-111) She retrieved the safe from the attic in the vacant

house and, along with Joseph Facundo, went to David's house. (R-V-112) When Tillman

opened the safe, legal papers were found inside that included the name ofRussell Lopez. The

papers were thrown away. (R-V-115) The safe was left with David Tillman. (R-V-115)

Thornton claim she only received a couple hundred dollars. (R-V-115, 116) Thornton also got

jewelry which she sold. (R-V-116) She acknowledged that on December 28, 2011, she gave

a statement to Detective Clopton with Sheriffs Department. She indicated that between the

time of the killing and the time of her statement, she was staying high, doing a lot of cocaine

and selling some of the stolen property. (R-V-117) Thornton admitted that when she spoke


                                              15
with Clopton she did not tell him the truth. Thornton claimed because she was scared of her

involvement. (R-V-118) She indicated that she was not honest with the police because she

didn't want them to know about her involvement in the case. (R-V-119) She also admitted

that she was not honest with the police about the vacant house because she didn't want them

to know about it. There was still property in the vacant house so she was not honest with

them about it. (R-V-119) Thornton said that Facundo and Appellant received money as well

as property. (R-V-120)

       During cross examination, Thornton acknowledged that she was on mood stabilizers:

Thorazine, Klonopin and Mamictal. (R-V-121)            Thornton testified that she had been

continuously confined in the Harris County jail since her arrest on December 28, 2011. (R-V-

122) In cross examining Thornton regarding her motive for changing her testimony, by

testifying against co-conspirators to get out of jail and her desire to get out of jail, Thornton

stated that: she was basically being warehoused and contained. She testified that there were

no educational or learningjob skill opportunities while in jail. (R-V-124) She indicated that

she had had several problems with other inmates since being in jail. (R-V-124, 125) Thornton

stated that she had been disciplined and lost her commissary rights. (R-V-125) She testified

that the last time she saw her son was two and one-half years ago and that she wanted to see

her son again. (R-V-125) Thornton stated that if she got out ofjail, she would be able to have

a life with her son. (R-V-126) She also stated that she had gained 100 lbs since being

incarcerated. (R-V-127) She told the jury it had been very stressful for her being in jail,

Thornton indicated that she was made aware that she might have an opportunity to get out of

jail by cooperating with the prosecution about one month before testifying. (R-V-127) She

stated that the reason she had not pled guilty earlier was because the prosecution hadn't


                                               16
offered her anything. (R-V-128) Thornton explained that she was the moving force behind

the plea deal and that she had gone to the State, the State had not come to her. (R-V-128)

Thornton stated that she was asking for probation on her aggravated robbery case. She stated

that she was not going to know the outcome until she testified against Appellant and also

Joseph Facundo. (R-V-129) She agreed that she had a lot riding on the testimony. She further

agreed that she got off death row and she might be home with her son if everything worked

out right for her. (R-V-129) She acknowledged that she had met jointly with the prosecutor

and her defense attorney to prepare for her testimony in court against Appellant. (R-V-130)

She stated that between December 11, 2011 and December 28, 2011, she had not consulted

with an attorney but in fact was trying to sell the jewelry taken from Lopez. (R-V-131) She

denied asking David Tillman to chop up a truck or ifhe knew how to go about doing that. (R-

V-131) Thornton acknowledged that she wasn't sure whether she was going to be able to get

away with this case. (R-V-131) Thornton admitted that when she met with Clopton she told

him she was going to honest with him, but in fact was not honest. (R-V-133) She admitted

that she had lied during that statement. She claimed that she was going to be honest regarding

everything she testified to in court. (R-V-133) Thornton told thejurythatRussellLopezwas

the neighborhood drug dealer and in fact had sold to teenagers and other kids. She stated that

it wasn't just marihuana, it was across the board - cocaine and pills. (R-V-134) She also

acknowledged that some of those kids would take stolen property to Lopez and sell it to him,

just like she said they were trying to do on the night of Lopez's death. (R-V-134) While

Thornton professed to know the plan. She indicated that there was never any discussion about

Marie Lopez, or whether she would be there. Initially, Thornton said that they didn't know

whether the kids would be there but they had planned to tie them up if they were. (R-V-13 5)



                                              17
                                                                                                  'I
                                                                                                  I




She stated that no one had gotten any tape or rope or made plans to do that in order to tie up

the kids. (R-V-13 5) Thornton admitted that the story she told the jury on direct examination,

when questioned by the prosecutor, was different than the story she told Sergeant Clopton

back on December 28, 2011. (R-V-144) She admitted that on December 28, 2011, she told

Clopton there was no plan. In court she stated there was a plan. (R-V-145) Thornton

confessed that she never told Clopton that they had been at the vacant house because she

didn't want him to know the part that she played. (R-V-145) She also confessed that she

made up a completely different story about how they were walking down the street and ran

into Appellant and Appellant was taking a laptop over so they decided to go over with him.

(R-V-145) Thornton also agreed that although she told Clopton that she had a debt with

Lopez, and that is why they were using the laptop to pay the debt off, it was really true that

they were intending to rob and murder Lopez all along. (R-V-146) Additionally, Thornton

admitted that her story to Clopton on December 28, 2011, about how Joseph Facundo had

taken her straight back to her home after Facundo had murdered Lopez, was not true. (R-V-

146) She agreed that there were a lot of differences between what she said initially to

Clopton, explaining that she didn't have an opportunity to consult with a lawyer or prepare

a defense, and what she was saying in court. (R-V-14 7) She agreed that it was to her

advantage to be untruthful on December 28, 2011 because she didn't think she was going to

get in trouble with the story she told Clopton. (R-V-14 7) Thornton admitted that it was to her

advantage to lie to the police. (R-V-14 7) She also admitted and agreed that it was pretty bold

of her to stand up to two experienced homicide detectives - and that it took guts and willpower

to do so. (R-V-148) In further cross examination, Thornton agreed that she was smoking

marihuana while she was on probation and that this was a violation of probation. She agreed



                                              18
that she lied to the court and lied to a probation officer about following the rules of probation.

She went on to state that it was convenient for her to do because it served her purpose.

Thornton said if she wanted to smoke dope, she did so, and then just lie to everybody about

smoking. (R-V-152) Thornton denied telling anybody about the murder between the date of

the offense and her arrest date. She stated she spoke with Jim Weyland aka Blinkie and he

thought that she was acting strangely after the murder. (R-V-153) She stated she was buying

a lot of cocaine and the neighbors were talking about the murder that had happened. (R-V-

153) Thornton noted that even in talking with Blinkie she didn't want to tell nobody the truth.

(R-V-156) Thornton also admitted that she had some jewelry that she had taken over to David

Tillman's house. She stated that she had lied to Sergeant Clopton and told him she never got

any jewelry. Thornton never saw Joseph Facundo hand the scabbard with the sword to

Appellant. (R-V-158) During continuing cross examination, Thornton indicated that her

meetings with the prosecutor were recorded. (R-V-168,169)

       Frances David Tillman, who had been convicted of possession of a controlled

substance, testified that he knew both Amber Thornton and Joseph Facundo, but did not

know Appellant (Tony Escobar). (R-V-174) Tillman testified that four or five days after the

murder of Lopez, Thornton came to his house trying to sell (or get rid of) watches and a ring.

On a subsequent visit, Thornton came to Tillman's house only with Joseph Facundo. (R-V-

178) Tillman stated that later, when he had to open the safe, all three individuals were

present. (R-V-181, 182) The State and Appellant later entered into a stipulation that Sergeant

Clopton had reviewed his report and there was nothing in Frances Tillman's statement about

Appellant showing up later at the time the safe was opened. (R-VI-6) Tillman opened the safe

and found papers inside with the name Russell Lopez - he became suspicious. (R-V-182)



                                                19
Tillman ultimately turned the safe over to Sergeant Clopton. (R-V-183)

      During cross examination, Tillman said Thornton talked to him about trying to dispose

of a truck. Thornton asked Tillman about a chop shop and he indicated that he did not involve

himself with that. (R-V-186) Tillman described Joseph Facundo as acting like it was no big

thing to him. He even described Facundo grinning. On the other hand, Tillman described

Thornton as being real worried - she looked like something was up and she was real scared

and crying. (R-V-189) Tillman also confirmed that Appellant wasn't at the location when

there was talk about chopping up a truck. (R-V-189)

       Sergeant Clopton was recalled to testify. (R-V-195) Clopton described how he and

Sergeant Miller went down to Laredo to pick up Appellant and question him regarding this

case. (R-V-197) After warning Appellant of his legal rights, Clopton proceeded to question

the Appellant.

       Diana Wolfshohl, a DNA analyst with the Harris County Institute of Forensics

Sciences, testified that "touch DNA" is basically skin cells being left behind on an object and

testing whether there was DNA from those skin cells present on the objects. (R-VI-12)

Among the items she reviewed were a scabbard (State's Exhibit No. 76). Wolfshohl' s findings

and the work on the case were then passed on to DNA for their analysis. (R-VI-27)

       Christine Smejkal, a DNA analyst with the Harris County Institute of Forensics

Sciences, testified that her analysis revealed there was a mixture of DNA on the scabbard

which was collected as evidence in this case. She testified that Russell Lopez and Appellant

could not be excluded as possible contributors to the mixture of DNA. (R-Vl-42) She

testified that Marie Lopez, Joseph Facundo and Amber Thornton were excluded as

contributors to this mixture. (R-VI-4 2) Smejkal testified that of all the other items that were


                                              20
submitted for analysis, Appellants DNA did not appear on any of those items. (R-VI-4 7) She

testified that there was no DNA on the sword that was found on the body of the Complainant.

(R-VI-50) Ultimately, she testified that because Appellant could not be excluded as a

contributor to the DNA found on the scabbard, it's possible he touched the scabbard. (R-VI-

50) She agreed that the assumption could be made that Appellant wasn't wearing gloves

when he handled the scabbard, if he handled it. (R-VI-51) When questioned about the

absence of DNA on the sword handle, she stated that if an individual was not wearing gloves

there would be a pretty good chance of getting DNA. (R-VI-52)

       Roger Milton, Jr., Assistant Medical Examiner from the Harris County Institute of

Forensics Sciences, testified regarding his autopsy results. (R-VI-54) Milton explained that

the Complainant had extensive blunt and sharp force injuries primarily of his head and neck

region and some on the front of his chest. (R-VI-62) He also observed the presence of two

narrow objects penetrating into the soft tissue in what he referred to as potentially chop

injuries. (R-VI-63) Dr. Milton testified that the Complainant had sustained at least 16 distinct

blunt force injuries to the head. (R-VI-63) The injuries to the Complainant's face were

extensive and very destructive with fractures. (R-VI-64,65) Milton also observed perforating

wounds on the body of Russell Lopez, including a stab wound to the right upper chest that

went through his lung. (R-VI-68) Dr. Milton testified that a sword shown to him (State's

Exhibit No. 94) was capable of inflicting the type of injuries sustained by the Complainant.

He indicated that there was very little hemorrhage along the wound track indicating that the

injury was consistent with either a peri-mortem (around the time of death) or even postmortem

injury. (R-VI-100) Dr. Milton opined that the Complainant's cause of death was multiple

blunt and sharp force injuries of the head, neck and chest. He determined that the manner of


                                              21
death was homicide. (R-VI-107)

       Caden Lopez testified that on December 20, 2011, he was at home with his cousin

Mabel. He testified that his father had some friends over that afternoon. (R-VI-124) He

testified that his father was sitting at the kitchen table and that his sister was in a high chair.

(R-VI-125) A man walked into his room carrying his sister's clothes, and then the man said

that they were going to play cops and robbers. The man then tied them up and put them on

the bed. (R-VI-126) Caden was eventually able to loosen up the clothing that was tied around

him. He then helped his cousin Mabel. (R-VI-127) Caden described the process of being tied

up taking close to 8 minutes. (R-VI-128) He stated that the man who tied them up made no

threats at all. (R-VI-128) He also said he knew something bad was going on in the other room

and that he observed a women carrying his little sister. (R-VI-131) He was unable to make

out exactly what was being said in the other room, but testified that he heard two voices in his

dad's bedroom. (R-VI-134) Caden then identified Appellant as one ofthe individuals that had

been inside his home with his father on the day that he was murdered. (R-VI-141) The State

and Appellant rested and closed the case. (R-VI-141-143)

       The jury found Appellant guilty of capital murder as charged in the indictment. (R-VII-

57) Appellant to life in the Texas Department of Criminal Justice. (R-VII-60) The prosecutor

stipulated that Appellant, Tony Escobar, had a date of birth of August 15, 1994. The offense

occurred on December 20, 2011, making Appellant 17 years old at the time of the offense was

committed. The prosecutor confirmed that this would make Appellant eligible for parole on

his life sentence after 40 calendar years. (R-VII-61,62)




                                                22
                                                                                               !   -




                       STATEMENT OF FACTS IN THE CASE

                         POINT OF ERROR NUMBER ONE

THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE
JURY'S VERDICT FINDING APPELLANT GUILTY OF CAPITAL MURDER
BEYOND A REASONABLE DOUBT WHICH REQUIRES THE ENTRY OF A
JUDGMENT OF ACQUITTAL (R-IV-VI)

                          POINT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR
INSTRUCTED VERDICT OF NOT GUILTY AT THE CLOSE OF THE STATE'S
CASE (R-VI-142,143)

       The Statement of Facts and Argument and Authorities under these two Points of Error
are grouped together pursuant to Rule 38.l(t) of the Texas Rules of Appellate Procedure.

                               STATEMENT OF FACTS

       The full Statement of Facts appearing at the beginning of this brief is incorporated

herein by reference for all purposes. A short summary of the salient facts appear below:

       The State's evidence critically hinged on the testimony of Amber Thornton - a co-

defendant to Joseph Facundo and Appellant. Up until the eve of Appellant's trial, Thornton

was also charged with the offense of capital murder in the death of Russell Lopez - a person

Thornton described as the neighborhood drug dealer. Just weeks before Appellant's trial was

to begin , Amber Thornton was awarded a plea bargain in exchange for her testimony against

Appellant at his trial. Thornton's capital murder charge was dismissed by reducing it to the

offense of aggravated robbery. Thornton's punishment was to be fixed after she testified

against both Appellant and Joseph Facundo.

       When Thornton first discussed this matter with homicide Sergeant Craig Clopton on

December 28, 2011, her version of the events differed wildly from her trial testimony. From

claiming she had an innocent encounter with Appellant while she walked down the street to


                                             23
sell a laptop - to testifying about a pre-planned conspiracy to rob Russell Lopez, Thornton

provided the State with evidence that was otherwise non-existent. During cross examination,

Clopton admitted that he had been provided no direct evidence that there was a conspiracy or

plan to rob Russell Lopez when speaking with Thornton. (R-V-10)

       Other witnesses testified about the condition of Lopez when he was found laying on

the floor of his home. Others testified about the relationships between the individuals

involved, while others testified about scientific and forensic testing that was done. The sum

total of the evidence failed to establish little more than that Appellant's DNA was found on

a scabbard (sheath) at the scene. There was no evidence offered to establish that Appellant

ever used a sword or scabbard to assault the complainant. There was no evidence offered that

Appellant struck the complainant with a hammer or stabbed the complainant with a sword.

Thornton's testimony established that Facundo possessed a hammer and that he was holding

a sword and told her not to look just before stabbing the complainant. Thornton's testimony

that several days later Appellant was present with her and Facundo when she had a friend

open a safe taken from the complainant's home, was refuted by Sergeant Clopton' s statement

that Mr. Tillman did not confirm that Appellant was present.

       Appellant moved for an Instructed Verdict ofNot Guilty at the close of the State's

evidence, (R-VI-142,143) The trial court denied this motion. (R-VI-143)

                          ARGUMENT AND AUTHORITIES

       Section 19.03(2) of the Texas Penal Code, provides that a person commits an offense

if the person commits murder as defined under Section 19.0l(b)(l) and the person

intentionally commits the murder in the course of committing or attempting to commit

robbery. The State is obligated to prove beyond a reasonable doubt that Appellant had the



                                             24
specific intent to cause the death of Russell Lopez.

       The burden of proof is on the State to establish beyond a reasonable doubt that

Appellant committed the offense alleged. Hightower v. State, 389 SW2d 674 (Tex. Crim.

App. 1965); McCullen v. State, 372 SW2d 693 (Tex. Crim. App. 1964) This burden of

proof is on the State to prove each and every element of the offense beyond a reasonable

doubt. Mullaney v. Wilbur, 421 US 684 (1975) In re Winship, 397 US 358 (1970)

       In Texas criminal jurisprudence, the concept of "legal sufficiency" of the evidence is

based upon the law of due process. See: Gollihar v. State, 46 SW3d 243 (Tex. Crim.

App.2001) citing In re Winship, 397 U.S. 358, where the court expressed it as follows: We

expressly hold that the Due Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.

       Sufficiency of the evidence is measured by the standard enunciated by the United

States Supreme Court in Jackson v. Virginia, 443 US 307 (1979): whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

       In Brooks v. State, 323 SW3d 893 (Tex .Crim. App. 2010) this Court held there is

no meaningful distinction between a Clewis v. State, 922SW2d126 (Tex. Crim. App.1996)

factual sufficiency standard and a Jackson v. Virginia, 443 U.S. 307 (1979) legal sufficiency

standard. This Court announced that the Jackson v. Virginia legal-sufficiency standard is

the only standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt. The court noted that it bears emphasizing that a rigorous and


                                              25
proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a

standard as any factual-sufficiency standard (especially one that is "barely distinguishable"

or indistinguishable from a Jackson v. Virginia legal-sufficiency standard). Reversal and

acquittal are required under this standard of review, if, after considering all the evidence the

jury's finding of guilt is not a rational finding.

        In her concurring opinion in Brooks, Judge Cochran noted that the Jackson Court

 stated the correct standard must incorporate the prosecution's burden of proof - beyond a

 reasonable doubt - in a due-process review. The court noted that a reasonable doubt has

 often been described as one based on reason which arises from the evidence oflack thereof.

 A reasonable doubt might arise because the verdict is manifestly against the great weight and

 preponderance of the credible evidence or because there is nothing more than a mere scintilla

 of evidence to support some element of the offense. Judge Cochran, cited Black's Law

 Dictionary, which states that legal sufficiency of the evidence is a test of adequacy, not mere

 quantity. Sufficient evidence is "such evidence, in character, weight, or amount, as will

 legally justify the judicial or official action demanded." Judge Cochran went on to state that

 in criminal cases, only that evidence which is sufficient in character, weight, and amount to

 justify a fact finder in concluding that every element of the offense has been proven beyond

 a reasonable doubt is adequate to support a conviction. After giving proper deference to the

 role ofthe trier of fact, an appellate court must uphold the verdict unless a rational fact finder

 must have had a reasonable doubt as to any essential element. Laster v. State, 275 SW3d

 at 518, citing Narvaiz v. State, 840 SW2d 415 (Tex. Crim. App. 1992)

        The complete record in this case fails to establish beyond a reasonable doubt that

 Appellant intentionally and knowingly caused the death of Russell Lopez as alleged in the


                                                26
indictment.

       In the absence of proof beyond a reasonable doubt that Appellant was responsible for

the death of Russell Lopez, either individually or as a party, a conviction for the offense of

capital murder cannot withstand appellate review and the entry of a judgment of acquittal by

the reviewing court. The evidence offered by the State's witnesses did not enhance the

weight or sufficiency of the evidence on this issue. Viewing the evidence in the light most

favorable to the verdict, the appellate court determines whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.

         An appellate court must always address challenges to the sufficiency of the evidence.

Garza v. State, 715 SW2d 642 (Tex. Crim. App.) Such a review must be conducted when

a legal sufficiency challenge is raised, even if the conviction must be reversed on other

grounds, because a finding that the evidence is legally insufficient to support the conviction

prevents a retrial under the double jeopardy clause of the Fifth Amendment. Hudson v.

U.S., 522 U.S. 93 (1977) If this Court finds that the verdict is contrary to the evidence

presented at trial, this Court can reverse the conviction and enter a judgment of acquittal.

Texas Code of Criminal Procedure, Art. 44.25; Texas Rules of Appellate procedure

43.2©.

         An individual may be held criminally responsible for their own voluntary conduct as

well as for the criminal conduct of others. Texas Penal Code Section 6.01 and 7.01. One

may be criminally responsible for the acts of another as a party, or as a co-conspirator under

Texas Penal Code Section 7.02(a)(2) and 7.02(b). No evidence was offered at trial that

Appellant caused the death of the Complainant. The evidence submitted supports the

conclusion that Joseph Facundo took the life of Russell Lopez. The complaining witness


                                               27
died as a result of multiple blunt and sharp force traumas. The injuries were consistent with

the use of a hammer and a sword, both of which were observed in the possession of only

Joseph Facundo. Therefore, it can be reasonably concluded that Joseph Facundo took the

Complainant's life.

       To establish that Appellant was guilty as a party, the State must prove that Appellant,

while acting with the intent to promote or assist in the commission of the offense, solicited,

encouraged, directed, aided, or attempted to aid another person in the commission of the

offense. Texas Penal Code, Section 7.02(a)(2). Mere presence at the scene, either before,

during, or after the offense, or flight from the scene, without more, is insufficient to establish

party liability. Valdez v. State, 623 SW2d 317 (Tex. Crim. App. 1979). To be guilty as

a party, Appellant must have committed some culpable act before or during the course of the

offense. Morrison v. State, 608 SW2d 233 (Tex. Crim. App. 1980).

       The State must prove that at the time of the offense the participants were acting

together, each contributing toward the execution of a common purpose. Ransom v. State,

920 SW2d 288 (Tex. Crim. App. 1996). A defendant must know he is assisting in the

commission of the offense and that intent may be inferred from the accused's words and

actions. Patrick v. State, 906 SW2d 481 (Tex. Crim. App. 1995). There was no evidence

that would establish that Appellant acted with the requisite intent to carry out a common

purpose, i.e. the killing of Russell Lopez. Appellant submits that there was no credible

evidence to establish that Appellant and Joseph Facundo were acting together when Facundo

killed the Complainant.

       The evidence was insufficient to support Appellant's conviction for Capital Murder

individually or as a party according to Texas Penal Code, Section 7.02(a)(2) because he did


                                                28
not intend to promote or assist Joseph Facundo and/or Amber Thornton in the murder of the

Complainant. Capital Murder' is a result of conduct offense requiring the specific intent to

cause the death of the Complainant. Hughes v. State, 897 SW2d 285 (Tex. Crim. App.

1994).     The accused must not only intentionally engage in the act that causes the

Complainant's death, he must also specifically intend that death result from that act. Hughes.

To be held responsible under the party liability found in 7.02(a )(2) of the Texas Penal Code,

the accused must know of the co-actor's unlawful intent when they act to promote or assist

the other's conduct. Hill v. State, 883 SW2d 765 (Tex. Crim. App. -Amarillo, 1994). The

record in the instant appeal is devoid of any evidence suggesting or establishing that

Appellant knew of the "co-actors" unlawful intent as alleged by the State.

         An individual can be held responsible for the acts of another if that person conspires

to commit a felony offense with another person and that person commits an offense in

furtherance of the planned offense and that new offense should have been anticipated as a

result of carrying out the conspiracy. A person can be held responsible as a co-conspirator

under Section 7.02(b) if the accused should have anticipated the victim's murder as a

consequence of proceeding with the robbery and the victim's death occurred in the

furtherance of that offense. Ex Parte Thompson, 179 SW3d 549 (Tex. Crim. App. 2005).

Once again, there is simply no evidence in the record to establish that Appellant, (1)

conspired to commit a felony offense with either Joseph Facundo and/or Amber Thornton

and (2) that he should have anticipated the Complainant's murder as a consequence of

proceeding with Facundo and Thornton. Appellant could not have anticipated that Facundo

would murder Russell Lopez.

         Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction


                                               29
cannot be had upon the testimony of an accomplice unless corroborated by other evidence

tending to connect the defendant with the offense committed; and the corroboration is not

sufficient if it merely shows the commission of the offense. Amber Thornton was identified

by the court as an accomplice. (CR-I-250) The evidence offered by Amber Thornton failed

to establish that Appellant caused the death of Russell Lopez as alleged in the indictment.

Thornton's testimony did little more than place Appellant at the scene where Joseph Facundo

caused the death of Russell Lopez. Appellant's mere presence in the company of someone

identified as an accomplice before, during, and after the commission of the offense is

insufficient by itselfto corroborate accomplice testimony. Dowthitt v. State, 931 SW2d 244

(Tex. Crim. App. 1996) After this Court eliminates all of the accomplice testimony from

consideration and then examines the remaining portions of the record to see if there is any

evidence to connect the accused with the commission of the crime - it will find that

Appellant's conviction cannot stand. Castillo v. State, 221 SW3d 689 (Tex. Crim. App.

2007)

        Whether viewed individually, or collectively, the issues addressed in this Point of

Error require reversal based on legally insufficient evidence. Appellant submits that this

result will be reached after the Court conducts a rigorous and proper application of Jackson

and Brooks. The jury's verdict was not based on a rational review of the evidence. Winn

v. State, 871 SW2d 756 (Tex. App. - Corpus Christi 1993)

        Appellant submits that even though a jury is charged with the responsibility of

determining the credibility of witnesses and the weight to be given their testimony, in this

case, as a matter of Due-Process, this appellate court should find that the verdict is not right

or just, and therefore it cannot stand. Appellant submits that when this Court conducts its


                                              30
Due-Process review of the sufficiency of the evidence to support the conviction, even when

viewing the evidence in the light most favorable to the verdict, it must find that no rational

trier of fact could have found the essential elements of the crime of capital murder in this

case beyond a reasonable doubt. Stobaugh v. State, 02-11-00157-CR (Tex. App. - Fort

Worth, January 23, 2014) citing: Jackson v. Virginia.

       Where the evidence is insufficient to sustain a conviction on appeal, double jeopardy

bars a retrial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978);

Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

                         POINT OF ERROR NUMBER THREE

THE TRIAL COURT ERRED WHEN IT ADMITTED THE 911 TAPE INTO
EVIDENCE OVER APPELLANT'S OBJECTION (R-11-4,5) (R-IV-8,44)

                                STATEMENT OF FACTS

       In a pre-trial hearing, Appellant noted his objection that the 911 tape made in this case

was irrelevant. (R-II-4,5) The State responded that the tape was factual and, without

providing additional details, claimed it went to several of the elements that State was tasked

with proving beyond a reasonable doubt. (R-I-5,6)

       Appellant renewed his objection to the admissibility of the 911 tape and

accompanying business records affidavit at trial. (R-IV-8) In arguing against its admission,

Appellant further noted the prejudicial nature of the 911 recording. (R-IV-8)

       The trial court overruled Appellant's objections - the business records affidavit and

911 tape were admitted into evidence as State's Exhibits 1 & 2. (R-IV-44) The 911 tape was

published to the jury. (R-IV-44)

       Appellant urges this Court to listen to the content of the 911 tape in order fully

appreciate the nature of the error raised herein. (State's Exhibit# 2) The seven minute 911

                                              31
tape contains the voices ofAmanda Shonte Mabe and the 911 dispatcher. Mabe is extremely

emotional as the dispatcher tries to convince Mabe to perform CPR on the complainant. The

complainant's wife (Marie Lopez) can be heard sobbing and crying while she is trying to take

care of her babies. Amanda Shonte Mabe and Marie Lopez offered live testimony before the

jury in this case. (R-IV-34,177)

                         ARGUMENT AND AUTHORITIES

       Rule 401 of the Texas Rules of Evidence states that "Relevant evidence" means

evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.

       Rule 403 of the Texas Rule of Evidence provides that although relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.

       In reviewing the trial court's determination of the probative and prejudicial value of

evidence under Rule 403, a reviewing court will reverse the lower court's ruling upon a

showing of a clear abuse of discretion. Rachel v. State, 917 SW2d 799 (Tex. Crim. App.

1996) Reviewing for abuse of discretion requires more than deciding that the trial court did

in fact conduct the required balancing between probative and prejudicial values - the trial

court's determination must be reasonable in view of all the relevant facts. As a result, ifthe

record reveals that the probative value of the tendered evidence is substantially outweighed

by unfair prejudice, then the trial court acted irrationally in admitting the evidence and

abused its discretion.


                                             32
       While 911 tapes are sometimes admitted to provide a framework within which the

State's evidence may be developed, such a "framework" does not reveal itself when listening

to the 911 tape in the instant appeal. Webb v. State, 760 SW2d 263 (Tex. Crim. App. 1988)

       In the instant case, Appellant's explained to the trial court that the 911 tape depicted

the call made by individuals after finding the complainant's body. Appellant noted that the

tape was not relevant because the State had ample other evidence concerning the discovery

of the body and the police coming out to the scene. In light of that other evidence, the

evidence contained on the 911 tape was redundant and really not part of the dispute at trial.

Appellant objected to the inflammatory and prejudicial nature of the recording. Evidence is

unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an

improper basis. Montgomery v. State, 810 SW2d 372 (Tex. Crim. App. 1990)               I     n

listening to State's Exhibit # 2 (911 tape), this Court will discover that the evidence

contained on the tape [the 911 dispatcher urging Ms. Mabe to perform CPR on the

complainant and hearing the crying and sobbing of the complainant's wife as she tends to her

young children]. Appellant fails to se how this particular evidence was "relevant" (as

required by the Texas Rules of Evidence) to any issue of consequence in this case. The

evidence should have been excluded at trial.

       Appellant submits that because the record reveals that the 911 tape was not "relevant"

within the meaning of the Rules of Evidence and because the "probative value" of the

tendered evidence was substantially outweighed by unfair prejudice to Appellant, the trial

acted irrationally in admitting the evidence and abused its discretion. Rachel.




                                              33
                         POINT OF ERROR NUMBER FOUR

THE TRIAL COURT ERRED WHEN IT ADMITTED NUMEROUS AUTOPSY
PHOTOGRAPHS INTO EVIDENCE OVER APPELLANT'S OBJECTIONS (R-VI-
70-80; .82) (SX # 79,80,81,82,83,84,85,86,87,88,89,90,91,92,93)

                                STATEMENT OF FACTS

       During its presentation of the evidence, the State sought to introduce numerous color

autopsy photographs depicting the appearance ofthe complainant (Russell Lopez). (R-VI-70-

80,82) (SX # 79,80,81,82,83,84,85,86,87,88,89,90,91,92,93)

       Appellant objected that the color autopsy photographs were not relevant under Rule

402, especially in light ofthe fact that the injuries and cause of death were not even contested

issues. (R-VI-71-73) Amber Thornton, the State's key witness and who was identified as an

accomplice as a matter oflaw, provided no evidence to show that Appellant caused any of

the injuries depicted in the numerous color photographs allowed in evidence. Appellant went

on to state that if the trial court found the photographs to be relevant, he further objected

pursuant to Rule 403 that the probative value was substantially outweighed by the danger of

unfair prejudice, confusion of the issues and inflammatory nature of the photographs and

misleading the jury. The trial court overruled Appellant's objections and admitted State's

Exhibits 70 thru 93)

                           ARGUMENT AND AUTHORITIES

       An appellate court reviews a trial court's admission of photographs into evidence

under an abuse of discretion standard. Perry v. State, 903 SW2d 715 (Tex. Crim. App.)

cert. denied, 516 U.S. 977 (1995) A photograph is relevant only if it has any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. Rule 401 When the accused



                                              34
objects that the photographic evidence is more prejudicial than probative, the trial court must

conduct a balancing test under Rule 403. Evidence is unfairly prejudicial when it has a

tendency to suggest that a decision be made on an improper basis. Reese v. State, 33 SW3d

238 (Tex. Crim. App. 2000) citing Montgomery v. State, 810 SW2d 372 (Tex. Crim.

App. 1990) In conducting the balancing test, the trial court should analyze: (1) how probative

the evidence is; (2) the potential of the evidence to impress the jury in some irrational way;

(3) the time the proponent will need to develop the evidence; and (4) the proponent's need

for the evidence, i.e., whether other evidence is available and whether the fact of

consequence is related to a disputed issue. Montgomery.

       Appellant would show that unlike the case of Flores v. State, 299 SW3d 843 (Tex.

App. - El Paso, 2010 - pet. ref'd) where the court found no error because of the

overwhelming evidence of guilt, the admission of the color autopsy photographs constituted

error which had a substantial and injurious effect or influence in determining the jury's

verdict. Appellant submits that this Court cannot be left with the fair assurance that the error

did not influence the jury, or influenced the jury only slightly.

                          POINT OF ERROR NUMBER FIVE

THE TRIAL COURT ERRED WHEN IT LIMITED APPELLANT'S CROSS
EXAMINATION OF SERGEANT CLOPTON REGARDING INFLUENCES AND
MOTIVES TO FABRICATE A STORY (R-V-12)

                              STATEMENT OF FACTS

       In light of the fact that Amber Thornton changed her version of what took place on

December 20, 2011 between her first meeting with Sergeant Clopton on December 28, 2011

and the date of her trial testimony, Appellant's cross examination of Clopton focused on the

credibility of Amber Thornton. Clopton, a twenty-three year police veteran with nine years


                                               35
experience as a homicide investigator, was asked ifhe would agree that taking capital murder

off the table and offering aggravated robbery and possible probation could influence or be

a motive to fabricate a story. (R-V-12)

       The State objected on the basis of speculation and relevance.

\      Despite Appellant's assertion that Clopton was qualified to testify as an experienced

homicide investigator, the trial court sustained the objection. (R-V-12)

                          ARGUMENT AND AUTHORITIES

       Rule 701 of the Texas Rules of Evidence provides that a non-expert witness can

offer an opinion or inferences which are (a) rationally based on the perception of the witness

and (b) helpful to a clear understanding of the witness' testimony or the determination of a

fact in issue.

       Rule 702 of the Texas Rules of Evidence permits testimony in the form of opinions

or otherwise from individuals who possess specialized knowledge which will assist the trier

of fact to understand the evidence or to determine a fact in issue.

       In the instant case, the credibility of Amber Thornton was at the forefront of

Appellant's cross examination. It was thus critically important to educate the jury about any

circumstance which could provide a reason for Thornton to fabricate testimony at trial.

       The admissibility of evidence generally and the qualifications of a witness to testify

as an expert is within the sound discretion of the trial court. Weatherred v. State, 15 SW3d

540 (Tex. Crim. App, 2000) Under Rule 701 a non-expert witness can offer testimony in

aid of the jury's fact-finding role. In the instant case, Sergeant Clopton had personal

knowledge of Thornton's previous statement given to him on December 28, 2011. This fact,

along with his years of experience as a homicide investigator uniquely qualified him to share



                                             36
his insight and knowledge surrounding reasons for a witness fabricating a story or testimony.

Clopton was qualified to offer his opinion based on hypothetical questions posed to him.

Jordan v. State, 928 SW2d 550 (Tex. Crim. App. 1996) Appellant submits that the trial

court abused its discretion when it excluded reliable, relevant evidence from Clopton that

would have assisted the trier of fact by increasing the juror's awareness of biasing factors in

Thornton's testimony. Tillman v. State, 354 SW3d 425 (Tex. Crim. App. 2011)

       Appellant's right to cross examine witnesses against him, as guaranteed to him by the

Confrontation Clause of the Sixth Amendment, was violated when he was prevented from

questioning Clopton. Appellant submits that the trial court abused its discretion in limiting

his cross examination and that a reasonable jury might have had a significantly different

impression of the credibility of Thornton if Appellant had been allowed to pursue the

questioning. U.S. v. Maceo, 947 F2d 1191 (5th Cir. 1991)

                           POINT OF ERROR NUMBER SIX

THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
ESTABLISH WHAT QUESTIONS SERGEANT CLOPTON ASKED AMBER
THORNTON DURING HER INTERVIEW WITH HIM ON DECEMBER28, 2011 (R-
IV-278,279)(R-V-18)

                         POINT OF ERROR NUMBER SEVEN

THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO
INTRODUCE AMBER THORNTON'S STATEMENT TO SERGEANT CLOPTON
IN EVIDENCE PURSUANT TO RULE 801(E)(l)(E) OF THE TEXAS RULES OF
EVIDENCE (R-IV-278,279)(R-V-12-17)

                         POINT OF ERROR NUMBER EIGHT

THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT AMBER
THORNTON'S STATEMENT TO SERGEANT CLOPTON UNDER THE RULE OF
OPTIONAL COMPLETENESS. (R-V-135-144)




                                              37
       These Points of error are grouped together pursuant to Rule 38.1 (f) ofthe Texas Rules
of Evidence to avoid duplication of statement and argument. These Points of Error concern
the same subject matter.        · ·     ·

                              STATEMENT OF FACTS

       When Sergeant Craig Clopton was testifying, Appellant sought to introduce the

questions Clopton asked of Amber Thornton when she met with Clopton on December 28,

2011. (R-IV-278,279) The State objected that it constituted impeachment. (R-IV-278)

Appellant pointed out that he was just asking what questions Clopton asked, not the

responses. (R-IV-278) When Clopton continued his testimony, he confirmed that he

considered Amber Thornton a co-conspirator in the commission of the crime that resulted in

the death of Russell Lopez. (R-V-12) Appellant sought to introduce Thornton's audio

statement made to Clopton (Def. # 1) (Transcript as Def. # 2) submitting that her recorded

statement was admissible under Rule 801 (e)(l)(E) of the Rules of Evidence as a statement

of a co-conspirator. (R-V-13,15,16,17,18,135,136) Appellant also sought admission under

Rule 801 (e)(l)(b) to rebut an express or implied charge against the declarant of recent

fabrication or improper influence or motive. (R-V-13,138,139) Appellant made a bill of

exception documenting the requested statement. (R-V-17,18) (CR-I-Def. Ex. # 2 - transcript)

(CR-I- Def. Ex. #1 - audio recording) Appellant also argued that Thornton's statement was

admissible under Rule 107 - the Rule of Optional Completeness. (R-V-138) Throughout

the entire colloquy, the State argued against admission citing hearsay and that it was

improper impeachment. (R-IV-278)(R-V-14,17,18) The trial court sustained the State's

objections. (R-V-17,136,137,138)




                                             38
                          ARGUMENT AND AUTHORITIES

        Rule 801(e)(l)(E) of the Texas Rules of Evidence allows the introduction of a co-

conspirator's statement if made during the course and furtherance of the conspiracy.

        Rule 801(B) of the Texas Rules of Evidence authorizes the admission of a statement

which is consistent with testimony offered to rebut an express or implied charge of recent

fabrication or improper influence or motive.

        Rule 107 of the Texas Rules of Evidence provides that once a statement is given in

evidence by one party, the whole on the subject may be inquired into by the other party to

make it more fully understood or to explain the same.

        A co-conspirator's statement is admissible pursuant to Rule 801(e)(l)(E) when two

or more people take part in the commission of a felony, even though the substantive crime

of conspiracy is not charged. Meador v. State, 812 SW2d 330 (Tex. Crim. App.1991) This

rule is applicable to any offense. Meador In the instant appeal, Appellant offered Thornton's

statement as substantive evidence because in her statement to Sergeant Clopton she was in

furtherance of the conspiracy by trying to keep its existence from being discovered by law

enforcement. King v. State, 189 SW3d 347 (Tex. App. - Fort Worth 2006, no pet.)

Appellant submits that the jury should have been afforded the opportunity to understand how

Thornton went from claiming ignorance (with Clopton) to becoming the star witness for the

State at trial.

        When Thornton testified and gave testimony that was at odds with her statement made

to Clopton, the jury was entitled to the benefit of the whole of her statement under the Rule

of Optional Completeness. The rule permits the introduction of evidence when it is

necessary to fully and fairly explain a matter opened up by the adverse party. Walters v.

State, 247 SW3d 204 (Tex. Crim. App. 2007) The jury was deprived of the full flavor of

                                               39
the exchange taking place between Sergeant Clopton and Thornton on December 28, 2011.

The Court's rulings prevented Appellant from presenting a full and complete defense.

Homes v. South Carolina, 547 U.S. 319 (2006).

                           POINT OF ERROR NUMBER NINE

THE TRIAL COURT ERRED WHEN IT PREVENTED APPELLANT FROM CROSS
EXAMINING AMBER THORNTON ABOUT HER HABIT AND ROUTINE OF
LYING TO LAW ENFORCEMENT TO AVOID RESPONSIBILITY FOR HER
ACTIONS. (R-V-159.160,193,194)

                                STATEMENT OF FACTS

         During cross examination of Amber Thornton, Appellant sought to elicit testimony

that she had previously lied to law enforcement concerning a separate investigation. (R-V-

159) The State objected that it was improper impeachment by a specific act. (R-V-160)

Appellant's counsel offered a proffer and bill of exception setting forth a prior incident

where police investigated Joseph Facundo for theft and found stolen property. (R-V-192, 193)

Appellant noted that Thornton was questioned by police and lied to them about her

knowledge ofthe crime. (R-V-159, 160) Appellant's argument was that Thornton told a story

to get out of trouble, just like she did in the instant case. (R-V-160,192,193) The trial court

sustained the State's objections and did not allow Thornton to be questioned in the presence

of the jury. (R-V-160,192,194)

                           ARGUMENT AND AUTHORITIES

         Rule 406 of the Texas Rules of Evidence provides that evidence of habit of a person,

whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to

prove that the conduct of the person on a particular occasion was in conformity with the

habit.

         Amber Thornton's credibility was in question throughout this trial. Appellant's


                                              40
position was that Thornton would lie when it was in her best interest to do so. Appellant

sought to introduce evidence of Thornton's habit of lying by delving into her previous

interaction with law enforcement investigating none other than Joseph Facundo.

       See: Guerrero v. State, 2011WL680314 (Tex. App. - Houston [14th Dist.] 2011)

where habit evidence was found to be admissible even against a charge that its admission

violated Rule 404(b). Appellant submits that it was error to deny him cross examination

concerning Thornton's habit oflying to get out of trouble. This was evidence the jury needed

to hear as part of its credibility evaluation of Thornton.

                           POINT OF ERROR NUMBER TEN

THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUESTED
JURY INSTRUCTION ON NECESSITY (R-Vll-4) (SX # 59 & 60)

                                STATEMENT OF FACTS

       Appellant's statements given to Sergeant Craig Clopton on December 31, 2011 and

January 3, 2012, were introduced in evidence as State's Exhibits 59 & 60. In State's Exhibit

# 59, a tearful Appellant told Clopton that everything was "unexpected". He explained that

he did not know where Joseph Facundo obtained the hammer Facundo used to strike Russell

Lopez. Appellant said he was just shocked seeing the guy. He described being "frozen".

Appellant was scared and he didn't know what to do. Appellant noted that if Facundo could

do that to Lopez, why couldn't he just do it to him too. Appellant told Clopton he wanted to

run because he was afraid for his life. In State's Exhibit# 60, Appellant explained that he

didn't know where Joseph Facundo got the hammer. Appellant said that he just froze after

Facundo hit Lopez with the hammer. Appellant told Clopton how he was scared so he tied

up the kids as ordered by Facundo. Sergeant Clopton is heard on State's Exhibit# 60 talking

about the necessity defense when he says that he can understand if Appellant was doing


                                              41
things at his [Facundo's] command. Clopton told Appellant that he understood that he

[Appellant] didn't want him [Facundo] to kill him.

       After both sides rested and closed, the trial court asked the parties whether there were

any objections to the court's proposed jury charge. (R-VIl-4)

       Appellant objected to the absence of a jury instruction concerning the defense of

"necessity". Appellant specifically requested that a defense of necessity instruction be given

to the jury. (R-VII-4) The trial court denied Appellant's request. (R-VIl-4) The instructions

provided to the jury did not mention the defense ofnecessity. (CR-1-236-257) The jury found

Appellant guilty of capital murder, as charged in the indictment. (CR-1-258)

                           ARGUMENT AND AUTHORITIES

       Article 36.15 of the Texas Code of Criminal Procedure authorizes the submission

of special charges to the jury based on the evidence raised at trial. Long-standing precedent

provides that a trial judge must, upon a defendant's proper request, instruct the jury on every

defensive issue raised by the evidence without regard to its source or strength. Under this

doctrine, it is of no consequence whether such evidence or testimony was produced by the

prosecution or the accused, or whether such evidence or testimony might be strong, weak,

unimpeached, or contradicted. Booth v. State, 679 SW2d 498 (Tex. Crim. App.1984) As

the court noted in Booth, it is the trier of the facts, an no one else, who has the responsibility

to decide whether to accept or reject the defensive theory.

       Section 9.22 of the Texas Penal Code provides that conduct is justified if:

       (1) the actor reasonable believes the conduct is immediately necessary to avoid

imminent harm;

       (2) the desirability and urgency of avoiding the harm clearly outweigh, according to



                                               42
ordinary standards ofreasonableness, the harm sought to be prevented by the law proscribing

the conduct; and

       (3) a legislative purpose to exclude the justification claimed for the conduct does not

otherwise plainly appear.

       In reviewing the trial court's refusal to give a necessity instruction, this Court will

look to the facts set out in Appellant's statements to Sergeant Clopton (SX # 59 & 60).

Appellant submits that in the absence of any direct evidence establishing he actually

committed the specific acts set forth in the indictment, the only arguable claim for conviction

would be based on the law of parties. In admitting that he tied up the kids because he was

scared of Joseph Facundo and that he feared the same fate could await him ifhe didn't do

as ordered, Appellant provided evidence sufficient to warrant the submission of a necessity

instruction. The Court of Criminal Appeals has decided several cases involving the necessity

defense and the application of the confession and avoidance doctrine. Juarez v. State, 308

SW3d 398 (Tex. Crim. App. 2010) Cornet v. State, 359 SW3d 217 (Tex. Crim. App.

2012) In Juarez, the Court held that even though the appellant maintained he never

intentionally, knowingly or recklessly engaged in an assault against a peace officer, the jury

could reasonably infer that specific conduct from the self-described actions taken by the

appellant. On that basis, the Court found that the appellant had satisfied the requirements and

was therefore entitled to a jury instruction on necessity.

       The facts and circumstances confronting Appellant on December 20, 2011, resulted

in actions he reasonably believed were immediately necessary to avoid imminent harm.

Appellant submits he was entitled to a charge on necessity as set forth in Section 9.22 of the

Texas Penal Code.



                                              43
                        POINT OF ERROR NUMBER ELEVEN

THE TRIAL COURT ERRED WHEN IT REFUSED APPELLANT'S REQUEST FOR
A JURY INSTRUCTION ON THE LESSER OFFENSE OF THEFT (R-VII-5,6)

                                STATEMENT OF FACTS

       Appellant requested a jury instruction on the lesser-included offense of theft. (R-VII-

5) The trial court denied the requested instruction. (R-VII-5)

       During his custodial statement on December 31, 2011, Appellant informed Sergeant

Clopton that he had only received maybe less than $1,000.00 from the proceeds of what was

taken from Russell Lopez. (State's Exhibit# 59) (R-V-201) On January 3, 2012, while still

in custody, Appellant confirmed to Clopton that he never got anything other than $1,000.00.

(State's Exhibit# 60) (R-V-208)

                          ARGUMENT AND AUTHORITIES

       Section 31.03 of the Texas Penal Code states that a person commits an offense ifhe

unlawfully appropriates property with intent to deprive the owner of property. Theft of

property valued at $500.00 to $1,500.00 is classified as a Class "A" misdemeanor.

       To determine whether an instruction for a lesser included offense is required, appellate

courts apply a two part test. Rousseau v. State, 855 SW2d 666 (Tex. Crim. App. 1993)

First, the lesser included offense must be included within the offense charged. Second, there

must be some evidence in the record that would permit a jury rationally to find that if the

defendant is guilty, he is guilty of only the lesser offense. Appellate courts should review all

the evidence presented at trial in making this determination. Bignall v. State, 887 SW2d 21

(Tex. Crim. App. 1994)

       Theft may be a lesser included offense of capital murder. Holiday v. State, 14 SW3d

784 (Tex. App. - Houston [l8t Dist] 2000, pet ref'd) The first prong of the Rousseau test


                                              44
was satisfied in the instant appeal. For reasons stated below, there was evidence in the record

that would have permitted the juiy rationally to find that Appellant was guilty only of theft.

       As noted in the preceding Point of Error concerning the necessity defense instruction,

the State offered evidence through Sergeant Craig Clopton establishing that Appellant only

received $1,000.00 or less in this case. Additionally, there was evidence presented that

Appellant did not hit or stab the complainant. (SX # 59 & 60) (R-V-201,208)

       Although Amber Thornton testified at trial that there was a plan to rob Russell Lopez,

cross examination of Ms. Thornton also produced evidence that there was no such plan and

that she had only casually encountered Appellant on the street as he was going to the

complainant's home. (R-V-68)(R-V-145) Thornton stated that Joseph Facundo was

responsible for hitting the complainant on the head and using a sword on him. (R-V-88, 105)

       As this Court observed in Holiday, to be entitled to a jury instruction on the lesser

included offense of theft, there must be evidence proving Appellant committed a theft of

property, but did not injure or threaten the complainant in any way.

       Appellant submits that in light of the conflicting evidence presented at trial, he was

still entitled to the submission of a jury instruction on the lesser included offense of theft.

                      POINT OF ERROR NUMBER TWELVE

THE TRIAL COURT ERRED WHEN IT COMMENTED ON THE WEIGHT OF
THE EVIDENCE IN THE INSTRUCTIONS GIVEN TO THE JURY CONCERNING
THE LAW OF CONSPIRACY (R-VI-4,5) (CR-1-240)

                                STATEMENT OF FACTS

       The proposed jury instruction stated, in part: "By the term "conspiracy" as used in

these instructions, is meant an agreement between two or more persons with intent, that they,

or more than one of them, engage in conduct that would constitute the offense. An agreement



                                              45
constituting a conspiracy, if any, may be inferred from acts of the parties." (CR-1-240)

   Appellant objected that the instruction, as worded, constituted a comment on the weight

of the evidence. (R-VI-4,5) The trial court overruled the objection. (R-VI-5)

                         ARGUMENT AND AUTHORITIES

       Article 38.05 of the Texas Code of Criminal Procedure prohibits the trial judge, at

any stage of the proceeding previous to the return of the verdict, from making any remark

calculated to convey to the jury his opinion of the case.

       Texas Penal Code Section 15.02 includes as part of the conspiracy definition, that (2)

he or one or more of them performs an overt act in pursuance of the agreement.

       An impermissible comment in the judge's instructions to the jury is an especially

powerful message (whether intentional or not) to the jury about the court's view of the

evidence. In the instant appeal, the jury was free to find that because the parties may have

engaged in some conduct, that conduct alone was sufficient to establish the existence of a

criminal conspiracy. The jury was not charged in accordance with 15.02 (a)(2). Without a

more narrowly defined instruction, Appellant submits the trial court erred by commenting on

the weight of the evidence. As the court observed in Bachus v. State, 803 SW2d 402 (Tex.

App. - Dallas, 1991) jurors are prone to seize with alacrity upon any conduct or language of

the trial judge which they may interpret as shedding light upon his view of the weight of the

evidence, or the merits of the issues involved. Jones v. State, 788 Sw2d 834 (Tex. App. -

Dallas 1990, no pet.)

                                 PRAYER FOR RELIEF

       Appellant prays that after the Court consider the Points of Error raised herein, it will

reverse Appellant's conviction and order a judgment of acquittal. In the alternative, without



                                              46
waiving the foregoing prayer, Appellant prays for a new trial. Further in the alternative,

Appellant requests that this Court reform the verdict I judgment to reflect the offense of

aggravated robbery or theft and order a new punishment hearing.

                                                  Respectfully submitted,




                                                  w~
                                                  SBOT: 09656300
                                                  4615 Southwest Freeway, Suite 600
                                                  Houston, Texas 77027
                                                  Tel: (713) 623-8312
                                                  Fax: (713) 626-0182
                                                  wthlaw@aol.com

                                                  Attorney for Tony Escobar



                          CERTIFICATE OF COMPLIANCE

      I hereby certify that this Brief complies with Rule 9.4 of the Texas Rules of Appellate
Procedure. According to the computer program used to prepare this document, the word count
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                                                  Way    T.   11


                             CERTIFICATE OF SERVICE

      A true and correct copy of this Brief will be serv: d
Attorney's Office - Appellate Division.




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