                                               "It^'IS
                              NO   • PD-rmVlS                               ORIGINAL
                                           IN    THE

                               COURT OF   CRIMINAL      APPEALS

                                          OF    TEXAS   •




                                ARTURO SANCHEZ ALMAGUER,
                                                              Appellant/Petitioner
                                               VS.


                                   THE STATE OF TEXAS,
                                                              Appellee/Respondent




                 APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                                           PRO SE




                                                                      RECEIVED
                             In Appeal No. 13-14-00312-CR           ©OURT OFCRIMINAL APPEALS
                                          from the                        A(jg 2Q 2015
                                    Court of Appeals
                         for the Thirteenth Judicial District AB}©IAC
                           Corpus Christi - Edinburg, Texas

        FILED IN
COURT OF CRIMINAL APPEALS

       AUS 27 2315
                                                             Arturo Sanchez Almaguer
    Abel Acosta, Clerk                                       TDCJ#01918635

                                                             W.G.   McConnell   Unit

                                                             3001 S. Emily Dr.
                                                             Beeville,    Texas 78102
                                           LIST   OF   PARTIES




APPELLANT

Arturo Sanchez Almaguer

APPELLEE

The    State       of   Texas


DEFENSE       COUNSEL       AT    TRIAL

Rogelio Garza                                          Pam Alexander
310 W. University Dr.                                  4009 S. Sugar Road
Edinburg, Texas 78539                                  Edinburg, Texas 78539
(956) 316-1375                                         (956) 397-2754

STATESS       ATTORNEY       AT    TRIAL

Victoria       Muniz

Hidalgo County DA's Office
Asst.Criminal District Attorney
100 N.       Closner

Edinburg, Texas 78539

APPELLANT'S             ATTORNEY    AT    13th    COURT OF   APPEALS

Oscar       Rene    Flores

O.    Rene    Flores,       P.C.

1308    S.    10th      Avenue

Edinburg, Texas 78539

STATE'S       ATTORNEY       ON    APPEAL

Theodore       "Ted"       Hake

Hidalgo County DA's Office
Appellate Division
100    N.    Closner

Edinburg, Texas 78539

STATE'S       PROSECUTING          ATTORNEY

P.O.    Box    12405

Austin,       Texas 78711




                                                   n.
                                 TABLE OF CONTENTS



IDENTITY OF PARTIES                                                        ii

INDEX OF AUTHORITIES                                                       iv,v

STATEMENT REGARDING ORAL ARGUMENT                                          £g.l

STATEMENT OF CASE                                                          Pg.2

STATEMENT OF PROCEDURAL HISTORY                                            Pg.3

GROUNDS FOR REVIEW                                                         Pg.4


                                  GROUND NUMBER ONE


   Court of Appeals erred by not following established precedent in the

review to determine if the evidence was legally sufficient to support the

capital murder conviction.


                                 GROUND NUMBER TWO


   Court of Appeals was without applicable precedent to "test" proof

"beyond a reasonable doubt" on appeal.


ARGUMENT NUMBER ONE                                                        Pg-5

ARGUMENT NUMBER TWO                                                        Pg.9

PRAYER FOR RELIEF.                                                         Pg.14

CERTIFICATE OF SERVICE                                                     Pg.15

COA, MEMORANDUM OPINION. .(?^??!??^. !r°.?FJ9Jnf4. ?niY).. -Appendix "A"
                          (attached to original only)
APPELLANT'S BRIEF                                     •    Appendix "B"




                                         ill.
                                INDEX OF AUTHORITIES

Brown v. State,716 S.W.2d 939,944

(Tex. Crim.App. 1986)                                                  pg.4,5

Burks v. United States, 437 U.S.1,18,98 S.Ct.2141, 57 L.Ed.2d 1

(1978)                                                                 pg.8,14

Clayton v. State,235 S.W.3d 772,778
(Tex.Crim.App.2007)                                                    pg.7

Geesa v. State,820 S.W.2d 154,162

(Tex. Crim.App. 1991)                                                  pg.9

Goff v. State,931 S.W.2d 537,550

(Tex.Crim.App. 1996)                                                   pg.4,5,10

Guevara v. State, 152 S.W.3d 45,49-52
(Tex. Crim.App. 2004)                                                  pg.7

Hooper v. State,214 S.W.3d 9,15-16
(Tex.Crim.App.2007)                                                    pg.4,7,11

Jackson v. Virginia,443 U.S.307,318-19,S.Ct.2781,2788-89,
61 L.Ed.2d 560 (1979)                                                  pg.7,14

King v. State,29 S.W.3d 556,564-65
(Tex. Crim.App. 2000)                                                  pg.7

Langs v. State,183 S.W.3d 680,686
(Tex. Crim.App. 2006)                                                  pg.8

Moreno v. State,755 S.W.2d 866,867              , <V              ..
(Tex. Crim.App. 1988)                                                  pg.6,9

Paulson v. State,28 S.W.3d 570

(Tex. Crim.App. 2000)                                                  pg.9

Rodriguez v. State,96 S.W.3d 398,400-01
(Tex.Crim.App.2002)                                                    Pg-9

Taylor v. State,332 S.W.3d 485,486
(Tex.Crim.App.2011)                                                    pg.6

Threadgill v. State,146 S.W.3d 654,665
(Tex.Crim.App. 2004)                                                   pg.4,8

Tovar v. State,165 S.W.3d 785

(Tex.App. - san Antonio 2005)                                          pg.8,14


                                     iv..
Williams v. State,235 S.W.3d 742,750
(Tex.Crim.App.2007)                                               pg>7
In re Winship,297 U.S.358,377,25 L.Ed.2d 368,377, 90 S.Ct.1068,
51 Ohio Op.2d 323 (1970)                                          pg.9


                               RULES / STATUTES
Texas Code of Criminal Procedure Art.36.13                        pg.5
                       NO,   PD-o^-15

                              IN    THE

                    COURT OF CRIMINAL APPEALS

                             OF    TEXAS




                     ARTURO SANCHEZ ALMAGUER, PRO SE

                                           Petitioner/Appellant

                                  VS.


                        THE STATE OF TEXAS

                                           Respondent/Appellee


          APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

   Petitioner/Appellant respectfully submits this Petition for
Discretionary Review and moves that this Honorable Court grant
review of this cause and offers the following in support thereof:

                STATEMENT REGARDING ORAL ARGUMENT

   The Petitioner/Appellant DOES NOT request an oral argument
in this case because he believes the facts raised can be discerned
without further explanation or assistance.       '




                                  1.
                              STATEMENT OF CASE



   This is a capital murder case with a mandatory life sentence.    In 1988,

Wilda and Evan Squires were found murdered in their home.   In 2011, some

23 years later, Almaguer was introduced as a suspect based on DNA taken from

forensic samples of feces precerved from the time of the murders.   No other,

evidence linked Almaguer to the crime.    The State built a circumstantial case

regarding the fecal matter by unsupported speculation.   This case-revolves

entirely around the rationality of the inferences about the fecal matter.




                                     2.
                       STATEMENT OF PROCEDURAL HISTORY


   In Cause Number CR-1214-12-D Almaguer was charged with Capital Murder in

the course of burglary by theft.   The jury found Almaguer guilty and the Life

Sentence was imposed based on the guilty verdict.   The conviction was appealed.

On the 25th day of June, 2015, in an unpublished opinion, the Thirteenth Court

of Appeals Affirmed the judgement of the trial court.    A Motion for rehearing

was filed and subsequently denied on the 24th of July, 2015.   This Petition for

Discretionary Review was timely forwarded to the Court of Criminal Appeals for

filing pursuant to Rule 9.2(b), Texas Rules of Appellate Procedure.




                                   3.
                                 GROUND FOR REVIEW



                                         I.

   PETITIONER ASSERTS THAT THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE


EVIDENCE WAS LEGALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUPPORT A CAPITAL

MUDER CONVICTION.


A) The Court of Appeals erred in considering evidence under the "parties theory"
without a lawful jury charge on the elements of criminal responsibility. This
is contrary to this Court's rulings in: Goff v. State,931 S.W.2d 537,544 (1996);
and Brown v. State,716 S.W.2d 939,944 (1986). [see COA, Mem.Op.,pgs.6-7,sec.3
"Party to the Offense."; and Appellant's Brief pgs.19-27]

B) The Court of Appeals erred by not distinguishing whether the jury verdict
was based on reasonable inference supported by evidence, or speculation, in
determining that Almaguer "was the shooter" and therefore possessed the requisite
intent to kill.     This is contrary to this Court's rulings in Hooper v. State,
214 S.W.3d 9,13 (2007); and Threadgill v. State,146 S.W.3d 654,665 (2004).[see
COA, Mem.Op.,pg.6,sec.2 "Murder"; and Appellant's Brief pg.12,14-15]

                                        II.

WITH CONSIDERATION OF PREVIOUS ATTEMPTS TO DEFINE AND APPLY THE PROOF BEYOND


A REASONABLE DOUBT STANDARD,    PETITIONER RESPECTFULLY AND HUMBLY SETS FORTH


THREE PROPOSITIONS TO PERSUADE THIS HONORABLE COURT TO "SET NEW PRECEDENT."


A) Beyond a Reasonable Doubt can be clearly defined and applied.

B) Beyond a Reasonable Doubt is a "legal formula" which creates a threshhold
of proof and narrows the theories from which inferences may be drawn.

C) As a "formula" Beyond a Reasonable Doubt can be applied to "test" the
evidence, by a jury or in an appellate court sufficiency of evidence review.
                                GROUND ONE ARGUMENT


Petitioner asserts that the Court of Appeals erred because there is no "rational

inference" supported by evidence that proves "beyond a reasonable doubt" that

Almaguer, acting as principal, possessed the requisite intent to murder, with

the objective of committing or attempting to commit burglary by theft.

                             A). "Parties of Offense."

The Court of Appeals, and jury, erroneously considered evidence under the

"parties theory." The jury DID NOT recieve the ,aw on parties charge from court.

Texas Code of Criminal Procedure Art.36.13 states "the jury is the exclusive

judge of facts, but is bound to recieve the law from the court and be governed

thereby."     "The test for ascertaining whether a person is a party to an offense

by virtue of his own conduct or by conduct of another for which he is criminally

responsible [is]: 'the trial court should first remove from consideration the

acts and conduct of the nondefendant actor.    Then, if the evidence of the conduct

of the defendant then on trial would be sufficient, in and of itself, to sustain

the conviction, no submission of the law of principals is required—On the

other hand, if the evidence introduced upon trial of the cause shows, or

raises an issue, that the conduct of the defendant then upon trial is not

sufficient, in and of itself, to sustain a conviction, the State's case.rests

upon the law of principals and is dependant, at least in part, upon the conduct

of another.    In such a case, the law of principals must be submitted and made

applicable to the case." see Brown v. State,716 S.W.2d 939,944 (Tex.Crim.App.

1986).   "Under the law of parties, the State is able to enlarge a defendant's

criminal responsibility to acts in which he may not be the principal actor...

Where there is no charge on the law of parties a defendant may only be convicted

on the basis of his own conduct." see Goff v. State,931 S.W.2d 537,544 (Tex.

Crim.App.1996).
"The judge's duty to instruct the jury on the law applicable to the case

exists even when defense counsel fails to object to inclusions or exclusions

in the charge; this may require the judge to sua sponte provide the jury with

the law applicable to the case." see Taylor v. State,332 S.W.3d 483,486 (Tex.

Crim.App.2011).

   There is no question that the "parties theory" played a significant role in

how the Court of Appeals, as well as the jury, reached conclusions regarding

whether the evidence supported a finding of guilt as principal or accomplice.

The jury during deliberations at guilt/innocence, requested the Court to

clarify the law of parties. And it is clear that the Court of Appeals used the

law of parties to determine sufficiency.

   In this case^the parties theory was introduced during voir dire to influence

the inferences to be drawn from the evidence. The state vacillated between

Almaguer being the principal and accomplice to overcome the obvious lack of

evidence and did abuse the law of parties.   The only evidence linking Almaguer

to the crime was DNA obtained from fecal matter, which was not in the immediate

vicinity of the murders.   All inferences beyond a finding that the fecal matter

could reasonably be linked to Almaguer are purely unsupported speculation. There

is no direct or circumstantial evidence to support any speculations "created"

to make a finding of guilt.

                  B)."Reasonable Inference or Speculation?"

The Court of Appeals failed to distinguish between reasonable inference

supported by evidence and speculation, in determining whether there was rational

proof beyond a reasonable doubt, that Almaguer intentionally murdered the victims

of this offense. " The role of a reviewing Court is that of a due process safe

guard, ensuring only the rationality of the trier of fact's finding of essent

ial elements of the offense charged beyond a reasonable doubt." see Moreno v.

State, 755 S.W.2d 866,867 (Tex.Crim.App.1988).
The Court of Criminal Appeals has affirmed murder convictions based soley on

inferences raised by circumstantial evidence, see e.g. Clayton v. State,235 3d
772,778-782 (Tex.Crim.App.2007); Guevara v. State,152 S.W.3d 45,49-52 (Tex.Crim.

2004; King v.State>29 S.W.3d 556,564-65 (Tex.Crim.App.2000). An inference is a

conclusion reached by considering other facts and deducing a logical consequence
from them, see Hooper v. State,214 S.W.3d 9,15-16 (Tex.Crim.App.2007). Specu
lation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. A conclusion reached by speculation may not be completely
unreasonable , but it is not sufficiently based on facts or evidence to support
a finding beyond a reasonable doubt. Id. Each fact need not point directly and
independantly to the guilt of the appellant as long as the cumulative effect of
all the incriminating facts are sufficient to support the conviction. Id.at 13.
   Petitioner asserts that the fecal matter from which a DNA test that could not

exclude Almaguer, is circumstantial evidence, and the ONLY evidence from which

all inferences were drawn. Any inferences beyond a link between Almaguer and the
fecal matter is purely speculation. The state created an "imagery association"
between a bowel movement and the bathroom, to lead the jury to an unreasonable
inference that Almaguer was "in the bathroom" which was logically shown to be
the location of the shooter. It is irrational and illogical to use this imagery
association to infer that the person who deposited the fecal matter, is the same

person who was in the bathroom shooting the victims. Nor can it be rationally

inferred that Almagaguer; was criminally responsible for the actions of the person
in the bathroom based on fecal matter alone.

"The reviewing Court is required to ensure that the evidence presented actually

supports a conclusion that the defendant commited the criminal offense of which

he is accused."see Williams v. State, 235 S.W.3d 742,750(Tex.Crim.App.2007);

(citing Jackson v. Virginia, 443 U.S.307,318-19, 99 S.Ct.2781,2788-89, 61 L.Ed.

2d 560 (1979).
Additionally, "the element distinguishing capital murder from felony murder is

the "intent to kill". Felony murder is an unintentional murder committed in the

course of committing a felony while capital murder includes a intentional murder

committed in the course of robbery [burglary] see Threadgill v. State,146 S.W.

3d 654,665 (Tex.Crim.App.2004). [instant case emphasis]

   The underlying offense in this case -is burglary. Burglary itself has an

underlying element, see Langs v. State,183 S.W.3d 680,686 (Tex.Crim.App.2006).

In the instant case, the state alluded to "theft" as the underlying offense of

the burglary. To follow the logic of establishing the requisite "intent to kill",

it would require the state to prove that Almaguer had the intent to kill as the

primary means of obtaing property from the residence.     To support a capital

murder conviction, the murder would have to take place prior to, or simulataneously
with, the entering of the residence or the theft. If, the murder took place
"after" the initiation of the burglary or theft, it is at best a felony murder.

The sequence of events is the deciding factor between a felony murder and a

capital murder.   There is no evidence to make this determination in the instant

case.



   Accordingly, Petitioner moves this Honorable Court to reverse the Court of

Appeals judgement affirming the conviction, and enter a judgement of aquittal

based on the finding that the evidence is legally insufficient to support a

capital murder conviction, see Burks v. United States,437 U.S.1,18, 98 S.Ct.

2141,57 L.Ed.2dJ.l (1978). Holding, if the record evidence is legally insufficient

under the Jackson rule, the reviewing Court must render a judgement of aquittal.

see also Tovar v. State, 165 S.W.3d 785 (Tex.App.— San Antonio 2005).




                                     8.
                              GROUND TWO ARGUMENT


   Petitioner asserts' that the "Beyond a Reasonable Doubt Standard" is not

limited to a jury instruction at trial, but is a standard to be applied by an

Appellate Court to test evidence in a sufficiency review.

The Texas Legislature has not defined the term "reasonable doubt" and it was

not until 1991 that the Court of Criminal Appeals adopted a definition of the

term, see Geesa v. State,820 S.W.2d 154,162 (Tex.Crim.App.1991).    Geesa's

definition has now been overruled by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.

App. 2000). "Despite its early use in American jurisprudence, the phrase

'reasonable doubt' appears in neither our federal or state constitutions."

see Paulson v. State, 991 S.W.2d 907,911 (Tex.App.-[14th Dist.] 1999), rev'd

on other grounds, Paulson 28 S.W.3d 570; see also In re Winship,297 U.S.358,377

25 L.Ed.2d 368,377, 90 S.Ct.1068, 51 Ohio Op.2d 323 (1970) (Black J. dissenting),
We know, of course, that the due process clause of the Fourteenth Amendment

to the United States Constitution protects an accused against conviction except

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

crime with which he is charged. Winship, 397 U.S.at 364. Although the "beyond

a reasonable doubt" standard is a requirement of due process, the federal

constitution neither prohibits trial courts from defining reasonable doubt nor

requires them to do so as a matter of course. Victor v. Nebraska,511 U.S. 1,5,

127 L.Ed.2d 583, 114 S.Ct.1239 (1994). Moreover, the United States Constitution

does not require that any particular form of words:be used in advising the jury

of the prosecutor's burden of proof.-see (citing Rodriguez v. State, 96 S.W.3d

398,400-01 (Tex.App.-Austin[3rd Dist.] 2002). "The role of the reviewing Court

is that of a due process safeguard, ensuring only the rationality of the trier

of fact's finding of the essential elements of the offense [beyond a reasonable

doubt]'.' see Moreno v. State,755 S.W.2d 866,867 (Tex.Crim.App. 1988) [emphasis

added by petitioner].
   Petitioner proposes that the foundational purpose of the beyond a reasonable

doubt standard, is to give great weight to the presumption of innocence and
firmly attach a "heavy burden of proof" on the state.      If we view the standard

of proof as a "formula" used to find a solution to a specific type of legal
problem- we can then find a plausible definition and application of the proof
beyond a reasonable doubt standard at trail, or on appeal.

   This Court has recognized that individual jurors may require different levels
of "proof" in order to be convinced beyond a reasonable doubt, see Goff v. State,
931 S.W.2d 537,550 (1996) . Simply put, "proof" must be decided by the jury,
and "beyond a reasonable doubt" must be decided by rule of law.

   The term "beyond" is a transcendental legal term used in law, just like "pi"
in mathmatics. Pi is a constant number without definition. You cannot define
pi, but anyone can "apply it" to find a specific solution.      And so it is with
the term "beyond".    You cannot define it, but anyone can apply it as part.of an
equation to find a solution to the problem of reasonable doubt.

   The beyond a reasonable doubt standard is applied to any case involving
circumstantial evidence, which requires the jury to reach a verdict by drawing
inferrences from theory and evidence.      Since the burden is on the State, each

element must be proved from the "same line of reasonaing."     The inferrences

relied upon to prove the elements of the offense, must connect to a"single"
theory inferred from the evidence. Elements proved through 'multiple theories,*
would not meet the burden of proof. Each element must "track" the relied upon
theory, and interconnect with all other elements to be considered proved beyond
a reasonable doubt.   Evidence submitted to support a theory, "must" be directly

and unquestionably connected to the events and circumstances of the charged
offense. Evidence by theory alone does not meet the burden of proof.




                                     10-
                                PROPOSED DEFINITIONS


Circumstantial Evidence: evidence that tends to prove a factual matter based

on inference drawn from theory of events and circumstances.

Proof: parsuasion that a fact exists.

Beyond: a transcendental term that limits.

Doubt: question of proof based on "direct" evidence; resolved by jury.

Reasonable Doubt: a legal question of proof based on "circumstantial" evidence,

created when there is "more than one" equally compelling theory from which a

juror is to draw inferrences.

Beyond a Reasonable Doubt: a "legal formula" applied by rule of law to resolve

matters of reasonable doubt, i.e. (reasonable doubt + presumption of innocence

= aquittal).

Proof Beyond a Reasonable Doubt: a threshhold of proof from which no verdict may
fall below, created by applying a legal formula as rule of law, which gives great
weight to the presumption of innocence, and requires a verdict to rest on "one"

theory from which the jury reasonably inferred guilt. The inferrences must be

trackable to one theory regarding evidence relied upon to prove each element of

offense beyond a reasonable doubt.    Each element to be proved must be "traceable"

to a proving factor with a direct and undisputable connection to the charged

offense* Circumstantial evidence cannot exist on theory alone and must be

directly Inked and corroborated by "real" evidence, see Hooper v. State, 214 :~:

S.W.3d 9,13 (Tex.Crim.App.2007).

                           HYPOTHETICAL JURY CHARGE


The State has the burden of proving each element of the offense charged beyond

a reasonable doubt. This requires the State to narrow the evidence to a single

theory from which you may draw! inferrences in reaching your verdict.




                                       11.
  You are hereby instructed that the case before you involves circumstantial

evidence, requiring you to reach a verdict from inferrences drawn from the

evidence presented.     If, after careful and impartial consideration of all the

evidence in this case, you are faced with reasonable doubt as defined in these

instructions, regarding any element of this offense, you will apply the weight

of the preumption of innocence, giving the defendant the benefit of the doubt,

and enter your verdict as not guilty, by rule of law.

                      PROPOSED FORMULA APPLIED TO INSTANT CASE


   Petitioner relies on the instant case to demonstrate the ffectiveness of

applying a "formula" to determine if the evidence supports a finding of guilt

"beyond a reasonable doubt."     The evidence in this case fails on at least two

levels: 1) the inferrences were drawn from an uncorroborated theory that said

Almaguer "was the shooter" based on fecal matter linked by DNA test. 2) The

State presented "more than one theory" from which the jury was expected to

draw inferrences in reaching a verdicti.: Specifically, that Almaguer was the

principal "AND" accomplice. The state introduced the law of parties at voir

dire but did not give a charge on "which" theory to follow in reaching a verdict.

The Court of Appeals erroneously followed this UN-charged parties theory.

Stepl Question: Does the verdict rest substantially or entirely on circum

stantial evidence?     Answer: Yes,   therefore inference becomes a factor to be

considered.

Step 2 Question: Is the theory from which inferrences can be drawn, supported

by evidence rationally and directly linked to the offense. Answer: No, the

theory from which inferrences were drawn is puely speculation without support

of any "real" evidence. Evidence fails to meet the burden of proof.




                                      12,
Step 3 Question: Is there "more than one" equally compelling theory from which

to draw inferrences? Answer: Yes, the State presented Almaguer as the primary
actor and the accomplice. Evidence fails to move "beyond" reasonable doubt.

Step 4 Question: Is there a legal question of proof regarding reasonable doubt?

Answer: Yes, the theory is unsupported; and there is "more than one" theory
that is equally compelling from which to draw inferrences. Reasonable Doubt +

Presumtion of Innocence = Aquittal.     Evidence is legally insufficient to support
a captial murder conviction with an underlying offense of burglary.
   Petitioner has presented what he believes to be a strong proposition for
the necessity of a lawful Reasonable Doubt "Formula" and Definition. The

only burden put on the State by this formula is one that is reasonable and

worthy of creating a "high' standard of proof. The State must establish a

"single " theory from which a juror is to draw inferrences and each piece of
evidence   presented by the state to "lead" a juror to an inferrence "must"

be directly linked to the events and circumstances of the offense charged.
Extraneous evidence with only a theoretical connection does not meet the

threshhold of proof "beyond" a reasonable doubt. This is especially important
when the charged offense has multiple levels of elements to be proved. "Each"
element must be proved in and of itself. The greater offense is not proved
by the lesser offense in a capital murder offense.

   Accordingly, Petitioner humbly shows this Honorable Court that the current

precedent on the beyond a reasonable doubt standard is fundamentally flawed,

and humbly and respectfully moves this Court to "Set New Precedent" to restore

the weight of the presumption of innocence and re-establish the "heavy" burden
of proof on the state in proving it's case.




                                      13,
   Petitioner humbly asserts that the evidence is legally insufficient to
support.a finding "beyond a reasonable doubt" as proposed in this Petition

for Discretionary Review. Based on the .application of the propsed "formula"
Petitioner moves this Court to reverse the Court of Appeals judgement affirming
the conviction, and enter a judgement of aquittal based on the finding that the
evidence is legally insufficient to support a conviction. Burks v. United States,
427 U.S. 1,18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) . Holding, if the record
evidence is legally insufficient under the Jackson rule, the reviewing Court
must render a judgement of aquittal. see also Tovar v. State,. 165 S.W.3d 785

(Tex.App-San Antonio 2005).



                              PRAYER FOR RELIEF


   For -the reasons stated herein, it is respectfully submitted that the

Court of Criminal Appeals of Texas should GRANT this Petition for Discretionary
Review.




                                             Respectfully submitted,
                                    on this j^V day of ^JPyJ^V         ,2015

                                  By: Arturo
                                      Arturo Sanchez Almaguer #1918635,pro
                                                              #1918635,c   se
                                      3001 S. Emily Dr.
                                       Beeville, TX 78102




                                     14.
                            CERTIFICATE OF SERVICE


   The undersigned pro se Appellant/Petitioner hereby certifies that a true

and correct carboncopy [without a copy of the Memorandum Opinion]     of the

foregoing Petition for Discretionary Review has been mailed, U.S. mail,

postage prepaid, to the District Attorney, Appellate Division, Ted Hake,

100 Closner, Edinburg, Texas 78539, and the State Prosecuting Attorney, P.O.
Box 12405, Austin, Texas 78711, on this     /°\        day of Au^uSr ,2015.



                                            Arturo Sanchez Almaguer




                                    15,
                            CERTIFICATE OF SERVICE




I hereby certify that a carbon copy of the foregoing motion to suspend Rule
9.3 T.R.A.P. has been forwarded to the following parties by U.S.Mail postage
prepaid through the McConnell Unit mailroom.   District Attorney, Ted Hake,
Appellate Division, 100 Closner, Edinburg, Texas 78539, and the State Prosecuting
Attorney, P.O. Box 12405, Austin, Texas 78711, On this (*\ day of
ftuc^yf       ,2015.

                                                Arturo Sanch^fe Almaquer




                                     2.of 2.
COURT OF APPEALS MEMORANDUM OPINION

          •'APPENDIX "A"




                   APPENDIX "A"
                           NUMBER 13-14-00312-CR


                          COURT OF APPEALS /
                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


ARTURO SANCHEZ ALMAGUER,                                              Appellant,




THE STATE OF TEXAS,                                                   Appellee.


                  On appeal from the 206th District Court
                           of Hidalgo County, Texas.


                        MEMORANDUM OPINION

              Before Justices Rodriguez, Garza and Longoria
                Memorandum Opinion by Justice Longoria

      Appellant, Arturo Sanchez Almaguer, was convicted by a jury on two counts of

capital murder and sentenced to life imprisonment. See Tex. Penal Code Ann.

§ 19.03(a)(2) (West, Westlaw through Chapter 46 2015 R.S.). Appellant challenges his

conviction by two consolidated issues. We affirm.
                                   I.     Background


       On November 12, 1988, Officer Roberto Moreno of the Weslaco Police

Department responded to a report of shots fired at the Magic Valley Trailer Park in

Weslaco, Texas. Upon his arrival, residents of the trailer park directed him to the Squires

home. Inside the trailer, he discovered a male and a female body on the floor. Officer

Moreno identified the bodies as those of Evan and Wilda Squires. Both appeared to have

been shot and neither was responsive. Both died as a result of the gunshot wounds.

Officer Moreno and other investigators who were called to the scene observed a pile of

human feces on the carpet in one of the rooms, as well as a pair of jean shorts covered

in feces. They also observed a box of silverware lying on the floor, a machete on a chair,

and a radio that appeared to have been wrapped up. Officer Patsy Pemelton observed

a trail of clothes leading from the side door of the trailer down to a drain ditch some

distance away. At the end of the trail, she found a bag containing clothes as well as a

torn shirt that was also covered in feces. Officer Pemelton took these items into evidence.

       In 2005, the Texas Department of Public Safety ("DPS") DNA lab in McAllen,

Texas, obtained partial DNA profiles from the fecal stains on both the torn shirt found at

the end of the trail and the jean shorts found at the Squires' home. In 2012, the DPS

DNA lab received a known DNA sample from appellant. The lab compared the DNA

profiles from the shirt and jean shorts to appellant's DNA profile. DNA analyst Alejandro

Madrigal testified that appellant could not be eliminated as a potential contributor to the

DNA profiles found on the clothing. The State indicted appellant on three counts of capital

murder. See id. A jury convicted appellant on all three counts of capital murder. The
State elected to dismiss Count 1 after receiving the verdict, and appellant was

automatically sentenced to life imprisonment.1

                           II.     Legally Insufficient Evidence

       By his first issue, appellant asserts that the evidence is legally insufficient to

support a finding beyond a reasonable doubt that he intentionally caused the deaths of

Evan and Wilda Squires.

       A. Standard of Review and the Applicable Law

       The standard for reviewing the existence of legally sufficient evidence is whether

any rational trieroffact could have found all the essential elements of the charged offense

proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We

view the evidence in the light most favorable to the verdict. Id. The jury serves as the

exclusive judge of the facts, the credibility of the witnesses, and the weight given to the

witnesses' testimony. Williams v. State, 226 S.W.3d 611, 615 (Tex. App:—Houston [1st

Dist.] 2007, no pet.). The jury may believe all, some, or none of the testimony presented.

Id. In our review, we must uphold the jury's verdict unless it is irrational or if it is not

supported by more than a mere modicum of evidence. Gomez v. State, 234 S.W.3d 696,

702 (Tex. App.—Amarillo 2007, no pet.). Every single fact presented does not have to

point directly and independently to the defendant's guilt; it is sufficient if the conclusion is
reasonable by the cumulative effect of all the incriminating circumstances. Alexander v.

State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). The standard of review is the same

for both direct and circumstantial evidence. Frank v. State, 265 S.W.3d 519, 521 (Tex.

App.—Houston [1st Dist.] 2008, no pet.).


         1 Appellant was also indicted for murdering more than one person during the same criminal
transaction. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West, Westlaw through Chapter 46 2015 R.S.).
      We measure the legal sufficiency of the evidence against the elements of the

offense as defined by a hypothetically correct jury charge. Curry v. State, 975 S.W.2d

629 (Tex. Crim. App. 1998). A hypothetically correct jury charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the

State's burden of proof or restrain the State's theory of criminal responsibility, and

adequately describes the particular offense for which the defendant was tried. Triplett v.

State, 292 S.W.3d 205, 210 (Tex. App.—Amarillo 2009, pet. ref'd).

       Here, the State was required to prove that appellant murdered the Squires in the

course of committing or attempting to commit burglary. See Tex. Penal Code Ann.

§ 19.03(a)(2). Aperson commits murder if he "intentionally or knowingly causes the death
of an individual." See id. A person commits burglary if: (1) without consent of the owner,

(2) the person enters a habitation (3) with intent to commit a felony, theft, or assault. See
id. § 30.02 (West, Westlaw through Chapter46 2015 R.S.); Gardner v. State, 306 S.W.3d

274, 287 (Tex. Crim. App. 2009) (stating that appellant committed burglary when he

entered the victim's home without her effective consent and committed murder).

       B. Discussion

       Appellant argues that no evidence, circumstantial or otherwise, was presented to

show that he caused the death of either Mr. or Mrs. Squires. Although DNA evidence

was presented to show that appellant was at the crime scene, there was no evidence to

show that he was present at the time of the murders. Even though appellant does not

dispute that circumstantial evidence is sufficient to establish guilt, he contends that

convictions cannot be upheld if based solely on speculation. Appellant argues that the

only link to the offense was his DNA at the scene of the crime; that DNA alone is not
sufficient evidence to show he intentionally caused the death of the Squires; and that the

DNA evidence is also insufficient to show that he was in the course of committing or

attempting to commit a burglary.

              1. Burglary

       Here, the State was required to prove that appellant had entered the Squires' home

without their consent to commit a felony. See Tex. Penal Code Ann. § 30.02. The jury

heard evidence that the Squires appeared to have been awakened in the middle of the

night and at a time they were usually already in bed.         The evidence showed that

appellant's DNA was discovered at the Squires' home in the form of feces on the carpet

and on more than one article of clothing. An investigator testified that the feces appeared

to be fresh because the odor strongly permeated the scene when he arrived a few minutes

after the shots were fired.   Furthermore, silverware and other valuables were found in

what appeared to be odd places around the home and outside. A radio appeared to be

wrapped up as if in preparation of being moved elsewhere and a machete had been

placed on a chair. Appellant's DNA placed him inside the Squires' home and at the end

of the trail of clothing outside the home. Therefore, the evidence could have permitted

the jury to make a logical inference as to appellant's unlawful presence in the Squires'

home that night as well as his attempt to commit a burglary. See id.; Matamoros v. State,

901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (holding that the defendant committed

burglary because the evidence was sufficient to establish that the victim was sleeping in

his bed when the defendant entered the house without his victim's consent and the

defendant surprised and killed him).

              2.   Murder
      To prove the offense of capital murder, the State was required to show that

appellant intentionally or knowingly shot the Squires and caused their deaths. See id.

§19.03(a)(2). Appellant argues that no direct or circumstantial evidence was presented

that could prove he intended to cause the death of either Squires. Appellant contends

that the intent element for capital murder was not proven by the State because the State

did not present any evidence that he harbored ill will towards them and the record

contained no evidence of appellant's fingerprints at the crime scene or eye witnesses who

could place him near the scene.

       However, contrary to appellant's contention that the record is bereft of any

evidence to infer that he possessed the requisite intent to commit murder, the evidence

showed that the Squires were shot at a close range of between two and four feet. At such

close proximity to the victims, the law presumes an intent to kill. See Sholars v. State,

312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd.); Childs v. State,

21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd.). Furthermore, the

bullet that exited Mr. Squires' body was lodged into the wall opposite the bathroom, and

Mr. Squires fell forward into the bathroom. Such placement of the bullet and his body

indicates that the shooter was in the bathroom when he shot Mr. Squires. The jury could

logically infer from this evidence and the presence of his feces elsewhere in the house

that appellant was the shooter because he was unable to control his bowels that night

and was in the bathroom when he shot Mr. Squires.

              3. Party to the Offense

       The evidence also indicates that multiple parties participated in the burglary.

Under a hypothetically correct jury charge, the jury could convict appellant if it found that
he was present at the commission of the offense and he encouraged or aided another

person in intentionally causing the death of the Squires. See Tex. Penal Code Ann.

§ 7.02(a)(2); King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000). In reviewing the

sufficiency of the evidence to support appellant's participation as a party to the offense,

we may consider evidence occurring before, during, and after the commission of the

offense and may rely on his actions showing an understanding and common design to do

the prohibited act. Gross v. State, 352 S.W.3d 238, 240 (Tex. App.—Houston [14th

Dist.]), aff'd, 380 S.W.3d 181 (Tex. Crim. App. 2012).

       Appellant argues that while the evidence shows that someone intentionally and

knowingly caused the deaths of the Squires, the evidence does not prove that appellant

was present at the time the murders were committed. However, there were two sets of

footprints found in the Squires' home. Appellant's DNA establishes that he was there

shortly before the first police officer arrived because the fecal matter was still fresh. As
previously mentioned, his DNA was also found at the end of the trail leading from the

Squires' home to a ditch some distance away. The pajamas found outside on the trail
matched the pajamas of the victim left inside the home, further indicating a burglary was

being committed. Finally, neither Mr. nor Mrs. Squires owned any firearms. The jury

could reasonably inferfrom such evidence that appellant was present at the commission

of the burglary and that he or his accomplice brought a firearm with them with the intent

of murdering the inhabitants of the residence should they interfere with the burglary. See

Gardner, 306 S.W.3d at 287. Thus, considering the evidence of the events that occurred

during and after burglary, we conclude that the evidence presented was legally sufficient

to support appellant's conviction. We overrule appellant's first issue.
                             III.   Motion for a New Trial

      By his second, third, and fourth issues, appellant asserts that the trial court abused

its discretion by denying his motion for a new trial because the court unconstitutionally

applied Texas Rule of Evidence 606(b) and improperly excluded juror testimony. We

review these issues together.

      A. Standard of Review and the Applicable Law

      We review a trial court's denial of a motion for a new trial under an abuse of

discretion standard, and we reverse only when the trial judge's opinion was so clearly

erroneous as to lie outside the zone within which reasonable persons might disagree.

Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App. 2011). If there is no such abuse

of discretion, we are not justified in reversing the judgment. Id. We view the evidence in

the light most favorable to the trial court's ruling. Lopez v. State, 428 S.W.3d 271, 278

(Tex. App.—Houston [1st Dist.] 2014, pet. refd). We do not substitute our judgmentfor

that of the trial court, but will uphold the ruling if it was within the zone of reasonable

disagreement. Weadv. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
       Texas Rule of Evidence 606(b) provides that, during an inquiry into the validity of

a verdict or an indictment, a juror may not testify as to any matter or statement occurring

during the jury's deliberations, to the effect of anything on that juror's or another juror's
vote, or any juror's mental processes concerning the verdict or indictment. Tex. R. Evid.

606(b). The court may not receive a juror's affidavit or evidence of a juror's statement on

these matters. Id. However, a juror may testify under two exceptions: (1) as to whether

any outside influence was improperly brought to bear on any juror; or (2) to rebut a claim

that the juror was not qualified to serve. Id.



                                                 8
       B. Discussion2

       Appellant argues that he is entitled to a new trial because of juror misconduct that

occurred during voir dire proceedings and during jury deliberations at trial. He contends

that during voirdire proceedings, the State introduced and explained the law of parties to

the venire panel even though the law of parties was not authorized by the charge of the

court. According to appellant, this constituted an "outside influence" that was improperly

brought to bear on jurors under the first exception of Texas Rule of Evidence 606(b).

Furthermore, appellant argues that, according to juror Maribel Martinez's affidavit, the jury

found appellant guilty based on the law of parties and there was not enough evidence to

convict him of murder as a principal. To support this contention, defense counsel

introduced into evidence notes from the jurors asking for clarification on the law of parties.

Appellant further asserts that the trial court abused its discretion in denying his motion for

a new trial because he was not given the opportunity to develop the record on appeal and

because Rule 606(b) was applied unconstitutionally.

       The "outside influence" exception allows proof of external pressures that may

affect the verdict, and it is limited to those situations that occur both outside of the jury

room and outside of the jurors' personal knowledge and experience. See Tex. R. Evid.

606(b); Colyerv. State, 428 S.W. 3d 117,124 (Tex. Crim. App. 2014). The State brought

up the law of parties during voir dire, before the jury had even been selected. Maribel


        2 Appellant argues that Texas Rule of Evidence 606(b) is unconstitutional as applied to him.
Appellant does not dispute that Texas Rule of Evidence 606(b) has been deemed constitutional by
provisions of both the federal and state constitutions and he does not give a substantial reason as to why
it should be held unconstitutional in his particular case. Appellant does not cite to any authority to support
his contention that Rule 606(b) is unconstitutional as it pertains to his case. Under Texas Rule of Appellate
Procedure 38.1, appellant must provide specific arguments and authorities that support his argument to
effectively brief a constitutional issue. See Tex. R. App. P. 38.1; Hicks v. State, 15 S.W. 3d 626, 630 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref'd.). Thus, because appellant has not complied with the briefing
requirements of Rule 38.1, we hold that appellant has waived appellate review of his constitutionality issue.
Martinez had not yet been designated as a juror, and was merely a member of the venire

panel. The information about party liability that she obtained from the State was acquired

prior to being selected to serve on the jury. See Tate v. State, 414 S.W. 3d 260, 264

(Tex. App.—Houston [1st Dist.] 2013, not pet.) (stating that a jury's decision was not

affected when a member of the venire panel acquired information relevant to the case

prior to being selected to serve on the jury). Furthermore, information given to the venire

members by the parties during voir dire is not an outside influence because it was part of

normal court proceedings. See Franks v. State, 90 S.W.3d 771, 802 (Tex. App.—Fort

Worth 2002, no pet.). Texas courts have considered factual or legal information conveyed

to the jurors by an unauthorized individual who seeks to affect the deliberations as an

"outside influence." See Colyer, 428 S.W. 3d at 125. Appellant does not allege that the

State provided factual or legal information to the jury outside of the normal proceedings

of the trial. Thus, the jury's consideration of the law of parties was not an "outside

influence" improperly brought to bear against the jury. See Tex. R. Evid. 606(b); see also

Franks, 90 S.W.3d at 802.      The trial court did not abuse its discretion by denying

appellant's motion for new trial. We overrule appellant's second issue.

                                   III.    Conclusion


       Under the facts of this case, we conclude that (1) the evidence was legally

sufficient to uphold appellant's conviction; and (2) the trial court did not abuse its

discretion by denying appellant's motion for a new trial.




                                            10
We affirm the judgment of the trial court.




                                                  NORA L. LONGORIA
                                                  Justice



Do not publish.
Tex. R. App. P. 47.2(b).

Delivered and filed the
25th day of June, 2015.




                                             11
APPELLANT'S BRIEF ON APPEAL

       APPENDIX "B"




             APPENDIX "B"
                                                                              13-14-UU31i!-
                                                                 THIRTEENTH COURT OF APF
                                                                       CORPUS CHRISTI, Tl
                                                                         11/18/2014 3:37:39
'V
                                                                             DORIAN RAMI
                                                                                       CLI.

                       NO.   13-14-00312-CR




                In the Thirteenth Court^ of Appeals
                         Edinburg, Texas




                     Arturo Sanchez Almaguer
                            Appellant

                                  v.



                          State   of   Texas
                             Appellee




            On Appeal from Cause Number CR-1214-12-D
     206th Judicial District Court of Hidalgo County, Texas
                Hon. Rose Guerra Reyna Presiding



                        APPELLANT'S     BRIEF




     NO ORAL ARGUMENT REQUESTED        O.   RENE   FLORES
                                       State   Bar   Number    24012637
                                       O.   Rene Flores,      P.C.
                                       13 08 S.    10th Avenue
                                       Edinburg, Texas 78539
                                       (956) 383-9090 Telephone
                                       (956)   383-9050 Facsimile
                                       Counsel for Appellant




                                                            G COPY
                                                                                          i
V




                  IDENTITY OF   PARTIES   AND   COUNSEL


    Appellant                              Appellate Counsel
    Arturo Sanchez Almaguer                Oscar Rene        Flores
                                           0.     Rene Flores,     P.C.
                                            1308 S. 10th Avenue
                                            Edinburg, Texas 7 853 9

                                           Trial        Counsel
                                           Rogelio Garza
                                           310 W. University Dr.
                                           Edinburg, Texas 78539
                                            (956)       316-1375


                                            Pam Alexander
                                            4009 S. Sugar Road
                                            Edinburg, Texas 78539
                                            (956)       397-2754


    Appellee                                Trial       Counsel
    State   of Texas                       Victoria Muniz
                                            Hidalgo County DA's
                                            Office
                                            Asst.       Criminal
                                           District Attorney
                                            100    N.    Closner
                                            Edinburg,       Texas 7 8539

                                            Appellate Counsel
                                            Theodore       "Ted" Hake
                                            Hidalgo County DA's
                                            Office
                                            Appellate Division
                                            100    N.    Closner
                                            Edinburg, Texas 78539
                      TABLE   OF        CONTENTS


IDENTITY OF PARTIES    AND COUNSEL                         i


TABLE OF CONTENTS                                         ii


INDEX OF AUTHORITIES                                    iii


STATEMENT OF THE CASE                                     vi


STATEMENT REGARDING ORAL ARGUMENT                       vii


ISSUES PRESENTED                                       vi i i


I s sue One                                         vi i i, 7


I s sue Two                                        vi i i, 19

Issue Three                                        vii i, 19

I s sue Four                                          ix, 2 0


STATEMENT OF FACTS                                         1


SUMMARY OF THE ARGUMENT                                    6


ARGUMENT                                                  20


PRAYER                                                    36


CERTIFICATE OF SERVICE                                    39


CERTIFICATE OF COMPLIANCE                                 39




                                   in
                         INDEX   OF   AUTHORITIES


Cases


Burks v.    United States,       437 U.S.         1,    18,   98 S.Ct.   2141,
57 L.Ed.2d 1,        (1978)                                                   19

Charles v.    State,     146 S.W.3d 204,           210
(Tex. Crim.App. 2004)                                                         22

Clayton v.    State,     235 S.W.3d 772,           778
(Tex. Crim. App .2007)                                                           9

Davis v. State,        111 S.W.3d 355,        358       (Tex.App.-Houston
[1st Dist.]        2005, no pet.)                                             10

Guevara v.    State,     152 S.W.3d 45,           49-52
(Tex. Crim. App .2004)                                                        12

Hooper v.    State,     214 S.W.3d 9,        13
(Tex. Crim. App .2007)                                                        12

Jackson v.    Virginia,       443 U.S.      307,       318-19,   99 S.Ct.
2781,    2788-89,     61 L.Ed.2d 560        (197 9)                         8,19

Jaggers v. State,        125 S.W.3d 661,           672    (Tex.App.-Houston
[1st Dist.]        2003, pet. ref'd)                                          10

Jones v.    State,     815 S.W.2d 667,        669
(Tex. Crim. App .1991)                                                        27

King v.    State,     29 S.W.3d 556,        564-65
(Tex. Crim. App .2000).'.                                                     12

Losada       v.        State,         721          S.W.2d         305,       309

(Tex. Crim. App .1986) )                                                      10

Moreno        v.       State,         755          S.W.2d         866,       867

(Tex. Crim.App. 1988)                                                            9


                                      IV
Penagraph v.       State,     623   S.W.2d 341,       343        (Tex.Crim.App.

[Pane 1 Op. ] 1981)                                                            10

Riley v.      State,    378 S.W.3d 453,       457
(Tex. Crim. App .2012)                                                         21

State v.      Herndon,     215 S.W.3d 901,      905 n.       5
(Tex. Crim. App .2007) )                                                       22

Tibbs v.      Florida, 457 U.S.        31,   41-42,       102 S.Ct.    2211,
2218,     72 L.Ed.2d 652      (1982)                                            9

Tovar     v   State,    165   S.W. 3d 785     (Tex.       App.     San Antonio

2 0 05)                                                                        19


Walker v.      State,    823 S.W.2d 247,       248
(Tex. Cr im. App .1991)                                                        27

Williams v.       State,    235 S.W.3d 742,         750
(Tex. Crim. App .2007)                                                          8

Wyatt v. State, 23 S.W.3d 18, 30               (Tex. Crim. App. 2 000) ...10

Riles/Statutes

Texas Rule of Appellate Procedure Rule 21.3                              21,28

Texas Rule of Appellate Procedure Rule
21.3(g)                                                            31,35,36,37

Texas Rule of Appellate Procedure                   Rule 21.8(b)               22

Tex. R.    Civ.   P.   166a (c)                                            ..22

Tex. R. Evid.      606(b)                                             27,33,36

Constitution


Article I, section 15,            of the Texas Constitution                    19
Sixth Amendment of the United States Constitution                              19
TO    THE HONRABLE               JUSTICES           OF       THE    THIRTEENTH COURT              OF
APPEALS:


         Appellant,               Arturo           Sanchez             Almaguer,          files         this

brief        requesting               that       the         Court     reverse        and      render         a

judgment of acquittal or alternatively remand for a new

trial.          Appellant Almaguer respectfully shows:

                                    STATEMENT               OF   THE   CASE


Nature        of     the     Case                     Appellant             was      indicted             for

                                                      three            counts          of         capital

                                                      murder.            This        is      an     appeal

                                                      from         convictions          on     Counts         2


                                                      and        3.     The     State         Moved         to


                                                      Dismiss Count l.1 See TRAP 43;

                                                      TEX.         Penal.     Code     Ann.       Section


                                                      19.02(b)(1)and                  (3);          CR7-8;


                                                      132-137;          147


Course of Proceedings                                 Appellant               Almaguer            pleaded

                                                       'Not Guilty" and was tried by




1Note that the jury convicted Appellant Almaguer of all three counts in the indictment. The Statehowever elected
to dismiss count one of the indictment after the verdict.

                                                            VI
                               a         jury.           At     the         guilt-

                               innocence phase of                 the       trial,

                               the       jury returned verdicts of

                               guilty            as     charged         in       the

                               indictment             in counts        1,    2   and


                               3     for    the       offense     of    Capital

                               Murder.                  (CR7-8;        132-137)


                               (RR17@55-56)


Trial Court's Disposition After             having       found       Appellant

                               guilty        of       Capital     Murder         the

                               Court        assessed          punishment          at

                               LIFE         imprisonment               in        the

                               Institutional             Division           of   the


                               Texas        Department          of     Criminal

                               Justice.                The      trial        court


                               rendered               judgment         on        the

                               verdicts accordingly.

               STATEMENT   REGARDING       ORAL       ARGUMENT


Appellant Almaguer is not requesting Oral Argument at

this   time.




                                   VII
                          ISSUES   PRESENTED


ISSUE    NUMBER   ONE



The evidence in this case is legally insufficient to
support  a  finding beyond a   reasonable doubt  that
Appellant Almaguer intentionally caused the death of
Evan and/or Wilda Squires; the evidence in this case is
legally insufficient to support a finding beyond a
reasonable doubt that Appellant Almaguer was present at
the time that the killings took place; the evidence in
this case is legally insufficient to support a finding
beyond a reasonable doubt that Appellant Almaguer is
guilty of Capital Murder.


ISSUE    NUMBER   TWO


The Trial Court Unconstitutionally Applied Rule 606(B)
Of  The  Texas  Rules  Of  Evidence,  Resulting  In A
Violation Of Appellant Almaguer's Right To Trial By
Jury As Mandated By Article I, Section 15, Of The Texas
Constitution And Of His Right To A Fair And Impartial
Jury As Provided By The Sixth Amendment Of The United
States    Constitution.


ISSUE    NUMBER   THREE


The Trial Court Erred By Denying Appellant A Post-
Conviction Inquiry Of Juror Maribel Martinez Regarding
Whether The Jury Deliberated On The Law Of Parties In
Reaching A Verdict Of GUILTY When The Jury Charge Did
Not Authorize A Conviction Of Capital Murder As A
Party.   The Trial Court Reversibly Erred By Denying
Appellant Almaguer To Develop The Record To Show That
This Outside Influence Was Brought To Bear On The Jury
During Deliberations.




                                   VIII
ISSUE   NUMBER   FOUR


The Trial   Court Abused Its Discretion   By   Denying
Appellant's Motion For New Trial.




                         IX
                             STATEMENT        OF    FACTS


Responding Officer Roberto Moreno

  At     approximately        11:26       p.m.      on     November         13,       1988,

Weslaco     Police       Officer         Roberto         Moreno       responded            to

"shots     fired"      at    the      Magic        Valley       Trailer       Park         in

Weslaco,    Texas.          RR15019-22        Moreno was         directed to            the

trailer    belonging         to    the    victims          in   this       case       by    a

stander-by,       Eileen       Myer,      a    resident          of    the       trailer

park.      She     and      Mary      Nestle        gave    Officer          Moreno         a

description of the assailant and it was later given to

the    investigators         in the      case.          RR15O3 0,      31,       48    Upon

entry    into    the    residence,        Officer         Moreno      observed          two

bodies    located in the              hallway of         the mobile          home.         He

observed    a    male       and   a    female       -    they    had       been       shot.

Moreno checked them for pulse;                      they were unresponsive.

Moreno contacted EMS and called for investigators to be

dispatched to the            scene.       RR15@22,23, 50              While at          the

scene,    Moreno       observed       what     he    believed         to    be    "fecal

matter"    in one of the rooms.
Investigator Bruce Kennedy

     On    November       13,     1988,       Investigator       Bruce       Kennedy

had been an         investigator with Weslaco                   PD   for     about    a

year;     this      was     his        first     homicide        investigation.

Although not on duty that night,                       he was called in late

and told to bring his personal video recorder as the PD

did not have one of             its own.         Kennedy made a video of

the crime scene that night - he hasn't seen it                                since.

RR15@55,     58-59,78-79,         81


     While     Kennedy walked through the                   crime      scene      that

night,    he      observed what         he     believed was          fecal    matter

and some denim shorts covering the                        fecal matter,           both

of   which     were   collected         as     evidence.        RR15@66-67,          92

Kennedy      also     testified           that     at     the     time       of    the

investigation,            there        were      two     suspects,         yet       no

information was gathered from the crime scene "linking"

these      suspects        at      that        time.            RR15@78            The

investigation believed there were two suspects because

two sets of footprints were observed leaving the scene.

RR15085,     90
CSI    Pat   Pemelton


       This   witness        documented         the     scene       in photographs.

RR15@lll-ll2          In    one    of    the    rooms,       she    described        what

she    believed       to    be     feces       covered       with    denim        shorts.


RR15@140-142;          State's          Exhibit        62-66         Pemelton        also

testified describing               the     "trail      of    clothing"           dropped

outside the trailer and speculates that the person who

dropped       them     must've          been      in     a     hurry        to     leave.

RR150146-147,          149-150           Ultimately           Pemelton       confirmed

that    no    evidence       as    to    who this        clothing belonged              to

was     recovered.           RR150182           Nor     was     a    murder        weapon

recovered.          RR15@179,      205

Investigator Billy Pemelton

       Pemelton       first       became       involved        in    this        case   in


2011,    when       appellant      Almaguer       first        became    a       suspect.

RR15O2 09,      212         He    traveled       to    Michigan        to    obtain      a

warrant       for     the    DNA    sample       of     Appellant.               RR15@213

This    witness      admitted       that       there    was    no    other       evidence


other than the DNA profile that pointed to Appellant in

this    case.         RR16O102           Pemelton       further       admitted          "we
    don't       know whether he       killed     them     or not,"    when      asked
f
/   if    he     knew    that     Appellant      committed        these     murders.

    RR16@128


    Dr. Norma Jean Farley

           Testified that gunshot wounds to the left chest of

    Evan Squires and a gunshot wound to the chest of Wilda

    Squires were determined to be the cause of death to the

    victims      in this case.       RR15O239-240


    William Lawrence Jury

           This is Wilda Squires' son.                 Evan Squires was her

    second husband.             This witness described Evan Squires'

    son as having an estranged relationship with his father

    and Wilda.          Although he believed this was a robbery

    gone badly, he admitted that nothing was missing from

    the trailer.          RR16@7-13,      17

    Crime Lab Analyst Alex Madrigal

         This    witness   testified re:         the    forensic analysis          of

    DNA    and     about    the     forensic      samples     which       had    been

    preserved       from    the    time    of    the    murder.       There      were

    samples        submitted        for        analysis      in      this       case.
Specifically,           this    witness      identified        samples          of    the

clothing       found and found that              the DNA profile present

on those       items was consistent with the DNA profile of

Appellant Almaguer.                RR16O29-3 0, 35-36,         67

  Madrigal          testified       that   he    had    no   DNA      evidence         to

show   that         Appellant      Almaguer      committed      these       murders.

In fact,       Madrigal testified that he could not say that

the DNA on these             items belongs         to Appellant Almaguer.

RR16@51,       58



Lieutenant Robert Vallejo


  Testified that he'd had a conversation with a man by

the name of Paul Boychuck.                   After the murders,             Boychuck

went     and    told      Vallejo     that      three   days        prior       to    the

murders,       Wilda      Squires had shared with him she                        feared

for    her      life;       that     she   and    her    husband           had       been

threatened;          that    she    and    her    husband      had        been   given

"until Sunday"            to change the will            giving him half               the

money.          The       person     making      the    threats           was    never

identified          but     Evan    Squires'      son    was        the    only       one
identified as having an estranged relationship with his

parents.        RR16@156-159,         161


                            SUMMARY   OF     THE    ARGUMENT



       Appellant       argues         that      the       evidence         is      legally

insufficient          to    support       his      conviction         because         there

was no evidence presented that Appellant caused or even

intended to cause the death of either of these victims.

Further,       although there was DNA evidence presented to

show     that    Appellant's          DNA       profile        was    at     the      crime

scene,    there       was    no    evidence        to    show when         it   was    that


Appellant       was    there.         Even      the      investigators          in     this

case     admitted           they    did      not        know     whether         or        not

Appellant       committed          this     crime.         Nor       could      forensic

investigators testify when Appellant's DNA profile was

deposited       at    the     scene.         Appellant          avers       that      these

facts    conclusively establish a                       reasonable         doubt      as    to

whether    appellant          in    fact      did       commit       the    offense         of

which he was convicted.


       Texas          Rule          of          Evidence              606(b)               was

unconstitutionally applied in this case when the trial
court     denied         Appellant       Almaguer         a     post-conviction

inquiry    in order         to    develop       the    record    to       show Juror

misconduct      as       contemplated       by    Tex.    Rule       of    Appellate

Procedure 21.8(g).               In so doing,         the Trial Court failed

to recognize and admit evidence that the jury in this

case    reached      a    verdict       based     on   the    Law     of    Parties,

which they were unauthorized to do since the charge of

the    court   did        not    instruct       the    jury     on    the    law   of

parties.       Appellant Almaguer therefore,                    avers that the

trial      court         abused      it's        discretion           in     denying

Appellant's Almaguer Motion for New Trial.

                                ISSUE   NUMBER      ONE


  The Evidence In This Case Is Legally Insufficient To
    Support A Finding Beyond A Reasonable Doubt That
  Appellant Almaguer Intentionally Caused The Death Of
Evan And/Or Wilda Squires; The Evidence In This Case Is
   Legally Insufficient To Support A Finding Beyond A
Reasonable Doubt That Appellant Almaguer Was Present At
 The Time That The Killings Took Place; The Evidence In
 This Case Is Legally Insufficient To Support A Finding
  Beyond A Reasonable Doubt That Appellant Almaguer Is
                Guilty Of Capital Murder.


       Appellant         argues     that      the      evidence       is     legally

insufficient         to    support      his      conviction      because       there
was    no    evidence         presented           that      Appellant        intended        to

cause       the    death      of    either       of    these      victims.           Further,

although there was DNA evidence presented to show that

Appellant was at the crime scene,                             there was no evidence

to show when it was that Appellant was there.                                        Even the

investigators            in this          case admitted they did not know

whether       or       not    Appellant          committed          this    crime.          Nor

could       forensic         investigators             testify       when       Appellant's

DNA was deposited at                     the scene.              Appellant avers           that

these       facts      "conclusively establish a reasonable doubt

as     to    whether          [appellant]             in     fact     did       commit      the

offense of which he was                    convicted."


       The    legal          sufficiency          of       the    evidence       should      be

reviewed          by    considering             all    of     the    evidence         in    the

light       most        favorable          to     the       verdict        to     determine

whether any rational trier of fact could have found the

essential         elements         of     the    offense beyond a                reasonable

doubt.        Williams             v.     State,           235      S.W.3d       742,       750

(Tex.Crim.App.2007)                     {citing       Jackson       v.     Virginia,       443

U.S.    307,       318-19,         99    S.Ct.        2781,      2788-89,       61    L.Ed.2d
560    (1979)).     Evidence is           legally insufficient when the

"only proper verdict"               is    acquittal.        Tibbs       v.    Florida,

457    U.S.   31,    41-42,       102     S.Ct.    2211,      2218,      72       L.Ed.2d

652   (1982). The          role of a reviewing Court is that of a

due process safeguard,              ensuring only the rationality of

the trier of         fact's       finding of       the essential              elements

of    the offense charged beyond a                     reasonable        doubt.         See

Moreno        v.           State,         755          S.W.2d           866,            867

(Tex.Crim.App.1988).              In     doing    so,    deference           is    to    be

given    to    the        responsibility          of    the      fact        finder      to

fairly resolve conflicts                 in testimony,           weigh evidence,

and   draw    reasonable       inferences         from     the    facts.          Id.   The


reviewing      Court        should       defer     to     the     fact        finder's

resolution          of      conflicting            evidence            unless           the

resolution     is     not    rational.       See       Clayton     v.    State,         235

S.W.3d 772,         778    (Tex. Crim. App. 2007) . But            the reviewing

court is required to ensure that the evidence presented

actually      supports        a     conclusion          that      the        defendant

committed     the    criminal          offense    of    which     he    is    accused.


See Williams,        235 S.W.3d at 750.
      Jurors     are the exclusive                    judges of             the    facts,       the

credibility       of     the      witnesses,                and       the    weight        to    be

given the witness's testimony.                             Penagraph v.            State,       623

S.W.2d    341,        343        (Tex.Crim.App.                  [Panel       Op.]         1981);

Jaggers v.      State,       125 S.W.3d 661,                    672    (Tex.App.-Houston

[1st Dist.]       2003, pet.           ref'd). And,               they may choose to

believe     or        disbelieve            any            part        of     a     witness's

testimony.       See     Davis        v.     State,             111    S.W.3d           355,    358

(Tex.App.-Houston [1st Dist.]                         2005, no pet.).               Likewise,

"reconciliation of               conflicts            in    the   evidence          is    within


the exclusive province of the jury." Wyatt v. State, 23

S.W.3d    18,    30     (Tex.Crim.App.2000)                       (quoting          Losada       v.

State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986)).

      Ordinarily,           to    sustain         a        conviction             for    capital

murder as charged in this indictment,                                 the evidence must

demonstrate       that:          1)     the       accused              intentionally             or

knowingly       caused      the       death       of       an    individual             and    that

the   accused         was    then          and        there       in        the    course        of


committing       or     attempting               to        commit       the       offense        of

burglary of a habitation;                   and further that the victims



                                             10
were the owners of said habitation.                               Tex.      Penal       Code    §§

19.02(b)(1),            19.03(a)(2).           Testimony             from    the        several

witnesses          presented           in     this        case       showed        the       only

evidence          linking      Appellant            to    this       crime       was    a    "DNA

profile"          "consistent"          with         Appellant's            DNA        profile.

Note       that    Alex    Madrigal          from        the    crime       lab    testified

that       he   could not        say that           the DNA submitted in this

case       even    belonged       to        Appellant.               RR16@58.           DNA     is

durable;          it    does   not     evaporate           or    dissipate,            and     the

time at         which it was deposited on a surface cannot be

directly          determined.                Evidence           of     a     DNA        profile

consistent with Appellant,                     without more,               could not have

led    a    rational       person       to     believe          beyond       a    reasonable

doubt that Appellant caused the death of these victims

or    that      Appellant        was    in    the        course       of    committing          or

attempting to commit the burglary alleged here.

       What        about       circumstantially?                           Circumstantial

evidence           is     as     probative           as        direct        evidence           in

establishing the guilt of an actor,                               and circumstantial

evidence          alone    can    be        sufficient          to    establish          guilt.



                                               11
Hooper v.       State,    214 S.W.3d 9,             13     (Tex.Crim.App.2007).

The     Court    of     Criminal        Appeals          has        affirmed          murder

convictions        based        solely        on        inferences             raised        by

circumstantial evidence.               See,     e.g.,         Clayton,         235 S.W.3d

at     778-82;    Guevara        v.    State,           152    S.W.3d           45,      49-52

(Tex.Crim.App.2004) ; King v.                 State,          29 S.W.3d 556,              564-

65    (Tex.Crim.App.2 000).            An     inference             is    a     conclusion

reached     by     considering          other       facts           and        deducing       a

logical     consequence         from     them.          Hooper,          214    S.W.3d       at

16.    Speculation       is     mere    theorizing             or    guessing            about

the    possible meaning of              facts      and evidence presented.

Id.    A   conclusion         reached       by, speculation                   may     not    be

completely       unreasonable,          but        it     is    not        sufficiently

based on facts or evidence to support a finding beyond

a     reasonable       doubt.     Id.       Each        fact        need       not       point

directly        and    independently               to     the        guilt          of      the

appellant,       as long as the cumulative effect of all the

incriminating          facts     are        sufficient           to        support          the

conviction.      Id.    at 13.




                                         12
       In this case,          it was undisputed at trial that Wilda

and Evan       Squires       died as           a    result    of    gunshot     wounds;

that    sometime       after        11:00       p.m.      on November        13,    1988,

each    was     shot    in    the     chest.           State's      witness     Roberto


Moreno    testified           that    he        responded         to   the     scene    at

11:26    p.m;     that       he     arrived          and     observed     two      bodies

located in the hallway, unresponsive; that these bodies

had     been    shot.          RR15@22-23              Dr.    Norma     Jean       Farley

testified       that    the    cause       of       death    of    both victims        was

gunshot        wounds    to         the        chest.          RR15@239-240          This

evidence       inarguably           supports          a    finding      that    someone

intentionally and knowingly caused the Squires'                                     death

and that the deaths were the result of having been shot

with a firearm. Appellant argues that in examining the

record to determine whether the evidence,                              viewed in the

light     most     favorable              to        the    verdict,      is     legally

sufficient       to     support        a       finding       that      appellant       was

responsible,       there       is    insufficient            evidence        to sustain

this conviction.




                                               13
       There was       no    evidence upon which a                   rational     trier

of     fact     could        have     relied          in     finding         beyond     a

reasonable doubt that Appellant Almaguer was present at

the     crime    scene       at     the    time       that     the     murders      were


committed.       Nor    was       there    any        circumstantial          evidence

from which a         rational       trier of      fact could have drawn an


inference       that    Appellant         Almaguer          was    present     at     the

crime     scene        at     the     time        that       the       murders      were

committed.


       There was no evidence upon which a rational                                trier

of     fact     could        have     relied          in     finding         beyond     a

reasonable doubt that Appellant Almaguer fired a weapon

on the night of November 13,                     1988.        Nor was there any

circumstantial         evidence       from which a            rational        trier    of

fact     could       have    drawn        an    inference          that      Appellant

Almaguer      fired a        weapon       on    the    night      of   November       13,

1988.     Pat Pemelton testified that there was no weapon

recovered       in    this    case.        Nor        was    there     any    forensic

analysis/evidence             presented            regarding            the      bullet

fragments found that affirmatively linked Appellant to



                                           14
the     weapon    used       in     this       case.        Nor    was       there    any

ballistic        evidence          upon    which        the     jury     could       have

relied     in    drawing           an     inference         that      Appellant       was

linked     to    the    weapon          used     to    commit      these      murders.

RR15@205


      There was no evidence upon which a rational                                 trier

of    fact      could        have        relied        in     finding        beyond     a

reasonable       doubt       that       Appellant       Almaguer         intended      to

cause    the     death of          Evan and/or Wilda               Squires      on    the

evening of November 13, 1988 or that Appellant Almaguer

even harbored any ill-will toward either of them.                                     Nor

was     there    any    circumstantial                evidence        from    which     a

rational       trier    of    fact       could    have        drawn    an    inference

that Appellant Almaguer intended to cause the death of

Evan and/or Wilda Squires on the evening                                 of November

13,   1988     or that Appellant Almaguer even harbored any

ill-will     toward either of              them.        There was        no evidence

upon which a       rational             trier of       fact    could have relied

in    finding     beyond       a    reasonable          doubt      that      Appellant

Almaguer       intended       to    burglarize          and/or     rob       either   of



                                            15
    the     victims         that         night.         Nor        was         there       any

    circumstantial         evidence       from which          a    rational        trier    of



I   fact

    Almaguer
            could     have

                  intended
                                  drawn

                                  to
                                            an

                                        burglarize
                                                      inference

                                                             and/or
                                                                      that

                                                                         rob
                                                                                  Appellant

                                                                                either      of

    the victims that night.

           Simply,        the     only     evidence           purporting           to     link

    Appellant       Almaguer       to     the        crime    scene      was      his     "DNA

    Profile."        Investigator           Billy       Pemelton         admitted         that

    the    DNA    was       the    only         evidence          they      had      linking

    Appellant to this crime.                     Even so,         although he had a

    "belief that Appellant was responsible," neither he nor

    his    investigators knew whether Appellant                             killed Wilda

    and    Evan   Squires         or     not.         RR16@89,        102      128        Even

    assuming arguendo that the DNA profile was "consistent"

    with that of Appellant Almaguer,                         there was no evidence

    upon which a          rational       trier of        fact     could have            relied

    in    finding    beyond        a    reasonable           doubt    that        Appellant

    Almaguer was present at the time that the Squires were

    murdered.       Nor    was     there        any     circumstantial             evidence

    from which a rational trier of fact could have drawn an



                                                16
inference        that       Appellant     Almaguer       was       present       at   the

crime      scene        at     the      time     that        the        murders       were


committed.       If, as will          likely be argued by the State,

Appellant's           DNA     profile     is    from     a     place       where      the

defendant should not have been,                   the DNA,          by itself,        can

confirm only that he was there at some time and cannot,

by itself,       prove conclusively that he was there at the

time of the crime.               What's more,           the record on appeal

is   devoid      of     any    evidence        upon which          the    jury could

have      relied       to     even      "corroborate          the        presence      of

Appellant        at    the    crime     scene    during        the       time    of   the

murder."          For        example,     there     were       no        fingerprints

belonging to Appellant found at the crime scene;                                   there

were no eye-witness accounts placing Appellant Almaguer

at   or   near    the    crime    scene    at    the    time       of    the    murders.


In fact,     as Roberto Moreno testified,                     the two standers-

by who directed him to the crime scene upon his arrival

also provided him with a description of the assailant.

While that description was shared with those associated

with this investigation, no evidence was presented that



                                          17
Appellant Almaguer fit the description given.                                  RR15@3 0,

31, 48      There's no confession by Appellant inculpating

himself     in    these murders;             there was           no    murder weapon

found that        was     linked to Appellant                in       any way.     While

DNA analysis is a powerful tool in determining guilt or

innocence,       usually there          is other evidence that                     links

the defendant          to the offense.          We must          remember that DNA


analysis is performed by humans and is not                                   foolproof,

nor are the conclusions drawn from the analysis always

correct.         State's witness and "expert" on DNA analysis

Alex Madrigal           not     only admitted during                   his   testimony

that   some DNA labs have been shut down for mistakes                                 and


that people have been known to be released for mistakes

made   regarding          DNA    testing        but    further          acknowledged

that   he    could        not    say     that        the    DNA        on    the   items

submitted        for      testing       in      this       case        was    that     of

defendant.         RR16@52,58          Only     if    all    the       prerequisites

for    reliability—true                match,         correct           source,       and

presence     at     the       crime    scene     in        the    applicable         time

frame—are        satisfied       can    society        have       confidence         that



                                         18
the DNA evidence is,            in and of itself,               strong enough to

support a conviction.                 Lastly,       Alex Madrigal         testified

that    he    has    no DNA evidence               that    Appellant      committed

these murders.          RR16@51.


       Accordingly,          Appellant    prays          that    the   judgment be

reversed,         and a judgment of acquittal entered.                     Burks v.

United       States,     437    U.S.      1,       18,     98    S.Ct.    2141,    57

L.Ed.2d      1,     (1978)     (holding       if    the    record evidence         is

legally       insufficient         under           the     Jackson       rule,    the

reviewing court must             render a judgment of acquittal).

Tovar v.      State,     165 S.W. 3d 785             (Tex.      App.   San Antonio

2005).


                               ISSUE    NUMBER       TWO


The Trial Court Unconstitutionally Applied Rule 606(B)
    Of The Texas Rules Of Evidence, Resulting In A
 Violation Of Appellant Almaguer's Right To Trial By
Jury As Mandated By Article I, Section 15, Of The Texas
 Constitution And Of His Right To A Fair And Impartial
 Jury As Provided By The Sixth Amendment Of The United
                             States    Constitution.


                              ISSUE    NUMBER      THREE


  The Trial Court Erred By Denying Appellant A Post-
Conviction Inquiry Of Juror Maribel Martinez Regarding
 Whether The Jury Deliberated On The Law Of Parties In
 Reaching A Verdict Of GUILTY When The Jury Charge Did

                                         19
    Not Authorize A Conviction Of Capital Murder As A
   Party.  The Trial Court Reversibly Erred By Denying
  Appellant Almaguer To Develop The Record To Show That
 This Outside Influence Was Brought To Bear On The Jury
                                  During Deliberations.

                                      ISSUE       NUMBER        FOUR


       The Trial Court Abused Its Discretion By Denying
                      Appellant's Motion For New Trial.


     Appellant respectfully asks the reviewing Court to
       consider Issues Number 2 through 4 together.

                               ARGUMENT          AND      AUTHORITIES


Motion        for New Trial:               Standard of Review


        Appellant complains on appeal that his right                                               to a

fair       trial        was      violated           when       the       jury       in      this    case

reached          a     guilty          verdict.                Specifically,                the     jury

charges          in     this        case       instructed             the      jury         that    they

could          convict           if       they         were         convinced               beyond     a

reasonable doubt that Appellant Almaguer was guilty of

Capital Murder as a primary actor.                                     That is to say, the

jury was NOT instructed on the Law of Parties.                                                    CR119,

1261         Appellant            however          in his Motion                  for New Trial

alleges           that         the       Jury         engaged            in      misconduct           as

1Appellant refers the Court only to Counts Two andThree here, as Count One was dismissed.


                                                     20
contemplated                by      Texas          Appellate               Rule          21.3.

Specifically,           Appellant          avers       that       the     jury     in     fact

relied on the Law of Parties in reaching its verdict of

guilty on these respective counts.                                Said verdicts were

not   authorized by the               Charge          of    the     Court.        Further,

Appellant         complains          that       the     trial           court     erred     by

refusing         to    allow       post-verdict             inquiry        in     order     to

develop      the        record       on     appeal          for     review.          CR172;

RR20@18-21


      Appellate courts review a trial court's denial of a

motion      for       new    trial        under       an     abuse        of    discretion


standard,        reversing it only if it was clearly erroneous

and   arbitrary.            .Riley    v.     State,         378     S.W. 3d       453,     457

(Tex.Crim.App.2 012).               The     trial          court's       denial     of     the

motion      is        arbitrary       if     no       reasonable           view     of     the

evidence      could         support       the     ruling.         Id.     This     standard

requires      that      the appellate             court       review the          evidence

in    the    light          most     favorable, to                the     trial     court's

ruling.     Id.        Appellate      courts          do    not     substitute           their

own   views       for    those       of    the     trial      court;           instead,     an



                                             21
appellate         court        must    affirm         the     ruling         of     the    trial

court       if     it      was        within          the        zone       of     reasonable


disagreement.            Id.      "Where          there       are       two       permissible

views    of      the evidence,             the    factfinder's              choice between

them cannot be clearly erroneous." Id.

      The     same      deferential          review applies                  to historical

facts.      Id.    The     appellate          court         is    free       to    disbelieve

the      statements             in     an        affidavit,             especially           one

unsupported          by        live        testimony.            Id.        The     Court     of

Criminal Appeals cited the Rules of                                Civil Procedure in

holding       that      "affidavits          from an          interested party may

establish a fact for summary-judgment purposes only if

that evidence is 'clear, positive and direct,                                       otherwise

credible,            and          free           from         contradictions                 and

inconsistencies,                 and         could           have           been      readily

controverted.'             "    Id.      {quoting           Charles         v.    State,     14 6

S.W.3d 204,          210       (Tex.Crim.App.2004),                superseded in part

on     other       grounds            by     Tex.R.App.                P.        21.8(b),     as

recognized in State v.                     Herndon,         215 S.W.3d 901,               905 n.

5    (Tex.Crim.App.2007));                 see Tex.R.            Civ.       P.    166a(c).    It



                                                 22
further      held,        "The   phrase          'could    have     been    readily

controverted'           means    'the       testimony      at     issue    is    of    a

nature which can be              effectively countered by opposing

evidence.'          "     Id.    By        contrast,        "[s] tatements            in

affidavits of interested witnesses concerning their own

state      of     mind     are      'uncontrovertible'              because          'the


mental      workings       of    an    individual's         mind     are    matters

about      which        adversaries        have    no     knowledge        or   ready

means of        confirming or controverting.'                   " Id.     The trial

court      has    discretion          to    disregard       statements          in    an

affidavit that do not meet this test.                       Id. ;    Charles,        146

S.W.3d at        210.


The    Indictment


         Count Two of the indictment in this case alleged:

         THE GRAND JURY,         for the Count of Hidalgo,                 State of

Texas,      duly        selected,      empaneled,         sworn,     charged         and

organized as         such at the January term A.D.                   2 012 of the

13 9th    Judicial        District         Court    for said County,             upon

their oaths present              in and to said Court at                  said term

that       Arturo        Sanchez       Almaguer,          hereinafter           styled



                                            23
Defendant,       on or about the 13th day of November, A.D.,

1988,     and before the presentment of this indictment,                     in

Hidalgo County,          Texas,   did then and there intentionally

cause the death of an individual,                     namely Evan Squires,

by shooting him with a              firearm,      and the defendant      was

then       and   there      in    the        course    of   committing       or

attempting         to    commit   the    offense       of   burglary    of    a

habitation of           Evan Squires,        who was    the owner of     said

habitation.


         Count Three of the indictment in this case alleged:

       THE GRAND JURY,        for the Count of Hidalgo,             State of

Texas,      duly    selected,       empaneled,        sworn,   charged    and

organized as        such at the January term A.D.              2012 of the

13 9th    Judicial       District    Court      for    said County,      upon

their oaths present           in and to said Court at            said term

that       Arturo       Sanchez     Almaguer,         hereinafter      styled

Defendant,       on or about the 13th day of November, A.D.,

1988,     and before the presentment of this indictment,                     in

Hidalgo County,          Texas,   did then and there intentionally

cause the death of an individual,                 namely Wilda Squires,



                                        24
by shooting her with a                   firearm,            and the defendant was

then     and     there           in     the        course        of      committing             or

attempting        to    commit          the    offense            of     burglary         of     a

habitation of          Evan Squires,               who was        the owner of             said

habitation.         CR7-8


The Jury Charges


The application paragraphs of the court's charge to the

jury in count two provided:

             Now,      if    you       find   from       the      evidence        beyond         a

       reasonable           doubt      that        on    or      about    November             13,

       1988,     in     Hidalgo          County,         Texas,        the    Defendant,

       Arturo       Sanchez            Almaguer          did       then      and          there

       intentionally             cause    the       death         of   an    individual,

       namely,        Evan        Squires,         by        shooting       him      with        a

       firearm,       and        the   defendant         was      then    and     there         in

       the   course         of    committing            or    attempting        to    commit

       the     offense       of     burglary        of       a   habitation          of    Evan

       Squires,       then you will find the Defendant guilty of

       Capital Murder.




                                              25
          Unless you so find,                  from the evidence beyond a

    reasonable       doubt         that    the       Defendant         is    Guilty       of

    Capital Murder,            as defined herein,                   or if you have a

    reasonable          doubt       thereof,             you    will        acquit       the

    defendant        of       capital          murder          and    say        by    your

    verdict, Not Guilty.                  CR121

The application paragraphs of the court's charge to the

jury in count three provided:

          Now,     if     you      find    from      the       evidence          beyond    a

    reasonable          doubt      that        on    or       about    November          13,

    1988,     in     Hidalgo          County,        Texas,          the     Defendant,

    Arturo       Sanchez           Almaguer          did        then        and        there

    intentionally             cause    the      death          of    an     individual,

    namely,        Wilda       Squires,         by       shooting          her    with     a

    firearm,       and       the   defendant         was       then    and       there    in

    the     course      of    committing            or       attempting      to       commit

    the   offense        of     burglary        of       a    habitation         of   Wilda

    Squires,       then you will find the Defendant Guilty of

    Capital Murder.




                                          26
                     Unless you so find,                from the evidence beyond a

                 reasonable       doubt    that    the     Defendant          is     Guilty    of

                 Capital Murder,         as defined herein,             or if you have a

                 reasonable       doubt        thereof,      you       will        acquit     the

                 defendant       of     capital         murder        and     say     by    your

                 verdict, Not Guilty.             CR12 8

                 In order for a jury to be authorized to convict a

           defendant   as     a       party,     the" la'w       of    parties        must     be

           included -in. the -application                paragraph          of 'the charge.

           Walker      v.    %* state,            823        S.W.2d                247,       248

          . (Tex.Crim.App.1991);          Jones     v.     State,       815    S.W.2d        667,

           669   (Tex.Crim.App. 1991) .           The     indictment          in    this    cas.e
•&&
  (k!\-   .alleged appellant" committed these offenses as a primary

           actor.   Because       the     jury     charge        did    not        include     an

           instruction      on     the     law     of      parties,         the      jury     was

           entitled to convict appellant only on the basis of his

           own conduct.      Walker,      823 S.W.2d at 248.

           Texas Rule of Evidence 606(b)


           Texas Rules of Evidence 606(b) provides as follows:




                                                   27
          Upon an inquiry into the validity of                             a verdict or

          indictment,         a        juror   may    not     testify       as    to    any

          matter    or     statement           occurring      during        the    jury's

          deliberations,           or to the effect of anything on any

          juror's    mind         or    emotions      or mental        processes,        as

          influencing any juror's assent                      to or dissent            from

          the     verdict         or     indictment.        Nor      may     a    juror's

          affidavit      or       any statement         by a      juror concerning

          any matter about which the juror would be precluded

          from testifying be admitted in evidence for any of

          these purposes.              However,      a juror may testify:               (1)

          whether     any          outside          influence        was     improperly

  hi
(9&^pf\   brought to _kea.r-_upon any_juror; or (2) to rebut a
          claim that        the        juror was      not   qualified        to    ser,ye.

          Tex.R.    Evid.     606(b).


      Texas Rule of Appellate Procedure Rule 21.3


          Texas     Rule          of     Appellate       Procedure          Rule       21.3

          provides    that         a    Defendant      must     be    granted      a   new

          trial "when the jury has engaged in such misconduct




                                               28
           the defendant did not receive a fair and impartial

           trial." Tex.R.App. P. 21.3(g).

    Analysis

           Appellant      Almaguer        insists     that    the       trial    court

    erred by overruling             his    motion     for    new    trial      because

    the    jury engaged in          jury misconduct           resulting         in   the

    denial of a fair and impartial trial. In his motion for

    new trial, /Appellant             urged that            the    jury received
7 "other       evidence"            that         constituted        an      "outside
f
    influence"      that was brought to bear in that the jury

    considered the application of the Law of Parties to his

    case,   contrary to the jury instructions in the charges

    in counts two and three} Appellant Almaguer asserted in

    his    motion   and   in   an    affidavit       attached      to    the    motion

    that    jurors     stated       that    there     simply       wasn't       enough

    evidence to convict him as the one who actually did the

    killing. RR14@53-59

           During voir dire proceedings,                the State voir dire

    on the principles associated with the Law of                            Parties.

    The panel was given a bank robbery example involving


                                            29
    a shooter,         a lookout and a getaway driver.                             During the

    discussion,             the     jury        panel        was      educated           on     the

    principle          of    law        known    as     the     law        of     parties       and

    further      advised          that    although           only    the     gunman       in    the

    example      actually          committed           the    hypothetical              shooting,

    that all three are equally responsible for the shooting

    of    the    bank       teller.        RR14053-59               Now,     it    is    unclear

yd^X/ whether the State requested a gartie,s chargel since the
    record on appeal               is     silent with respect                   to a request

    for such a charge.                   At the close of              the evidence,             the

    parties agreed to exchange proposed charges                                       and bring

    any specific requests                  to the        Court       if they could not

    agree.        RR16@164-166             The        next     morning,           the    parties

    announced         they        had    received        copies        of       the     proposed

    charges and neither party lodged any objections to the

    charges.          RR17@4        what        is clear is that no charge on

    the    law    of    parties          was    incorporated           into       any     of    the

    Court's charges,              Counts 1, 2 or 3.                 CR113,      119,     126.

          The     State       objected           to     Appellant's             affidavit        in

    support      of     his       motion       for     new    trial.            CR212     In    the



                                                  30
affidavit,      defense      counsel       discussed     the   deliberations

of the jurors.         CR176-178       Although Appellant attempted

to present evidence to support his allegation of                             jury

misconduct during deliberations,                  the trial court denied

any post-conviction inquiry as such, thereby sustaining

the State's objection couched in Texas Rule of Evidence

606(b).    RR20@18-21


       The Texas Supreme Court has                found that Texas Rule

606(b)    violated neither federal due-process principles

nor    the     right    to     a     fair       trial    under    the       Texas

Constitution. And several Texas courts of appeals have

upheld the Rule's constitutionality under provisions of

both    the   United   States        and    Texas   constitutions.           But


Appellant     urges    this    Court       to   review whether        the    rule

was applied unconstitutionally in this case.                          Appellant

contends      that     this        application      of    Texas       Rule     of

Evidence      606(b)   was    unconstitutional           in    this   case    and

this    unconstitutional           application      prevented         Appellant

from establishing the jury misconduct that,                       under Rule

21.3(g), mandates a new trial.



                                       31
      Finally,    Appellant contends that his allegation of

juror      misconduct          was        further            corroborated           and

substantiated by a |jury question to the court during
its deliberations             in the guilt/innocence phase. £The
jury's     question     to     the    trial       court      was   a   request       to

clarify the Law of Parties.                    CR172-207;      RR20O24;       Defense

Motion for New Trial Exhibit 7


     The    State      will    surely          argue    at     this    point     that

there     is no   "admissible"            evidence of          juror misconduct

such that would show that the jury convicted Appellant

Almaguer on       any other principle                  other    than what        they

were authorized to do.                Therein lies            the quandary and

another     complaint         of    Appellant          Almaguer.            Appellant

recognizes      Rule    606(b)       of   the Texas          Rules     of    evidence

provides    that upon an inquiry into the                          validity of       a

jury's verdict a juror may not testify as to any matter

or statement occurring during the jury's deliberations

or   to   the   effect    of       anything       on    any    juror's       mind   or

emotions or mental processes as influencing any juror's

assent to or dissent               from the jury's verdict.                  TEX.   R.



                                          32
     EVID.   606(b).       The rule further provides that a juror's

     affidavit concerning such matters would not be admitted

     into evidence         for any of          those purposes.            Id.    However,

     Appellant Almaguer also understands that the rule does

     provide    that       a    juror    may    testify       as    to    whether       any

     outside influence was               improperly brought to bear upon

     any juror.       Tex.R. Evid. 606(b).

          Appellant            urges     this        Court     to     consider          the

     discussion       had       during    voir       dire     about       the     Law    of

     Parties    as    an       "outside    influence"         as    contemplated by

     Texas     Rule    of       Evidence        606(b)       and     Texas       Rule    of


     Appellate        Procedure         21.3        RR14053-59;          Tex.R.     Evid.

tr^K^J 606 (b) • TRAP 21.3(g) ^At the hearing on the motion for
     new trial,       defense counsel was prepared to rely on his

     affidavit       and call      a    witness,      Juror Maribel             Martinez,

     to   testify      to       the     alleged       misconduct.          The     State,

     anticipating          that    the    appellant          would       call     jurors,

     objected     under         Rule     606(b),       which        prohibits       juror

     testimony on       matters         concerning       jury deliberations             or




                                               33
affecting       a   juror's        decision-making.                   The    trial       court

sustained the objection.

       Counsel      also     introduced              into      evidence           the    notes


from    the    jurors,       which       the       motion        for       new    trial    and

defense       counsel        had      purported             to     include         comments

regarding       "the       jury's      desire        to     hear       a    clarification

regarding       the    law       of     parties."              Defense           Motion    for

Pretrial Exhibit 7.                At the hearing,                counsel explained

that the jurors'            notes were quite clear that the jury

was     deliberating             on      the         law         of        parties        when

unauthorized          to    do     so        by    the      Court's          Charge,       and

therefore        offered         the         notes       for      purposes          of     the

appellate review.            RR20@23-25

       The    trial    court     further           allowed       defense         counsel    to


make    a proffer of           evidence            in support          of    his    motion.

Defense counsel            stated:


       Your Honor,         if Maribel             Martinez       had been called to

       the witness stand,               it    is    the defense's belief that

       she would have testified accordingly,                                to wit:        The

       jury found the defendant guilty based on the law of


                                              34
       parties,      and they wanted clarification on the                                law

       of    parties.            There       were     a    lot        of     unanswered

       questions,        and     there      was     nothing      to        say    that    he

       actually did it, and there was not enough evidence

       to    convict     him     of    murder       but    he    might       have       been

       working       with      someone       else.         She    also           discussed

       other concerns she had such as money being left and

       the     jewelry      on    the       body     being       left.             I    also

       believe,      had she been allowed to testify here this

       afternoon,         Your        Honor,        that        she        would        have

       testified accordingly, and I offer that proffer for

       purposes of appellate process.                      RR2 0@2 9-3 0

       Appellant         Almaguer           asserts        that        an         "outside

influence"         was   improperly           brought       to    bear           upon    the

jurors,       the Law of Parties discussed during voir dire.

The Court erred by denying Appellant a post-conviction

inquiry       into    whether         the    "outside       influence"             was    in

fact brought          to bear on            the   jury during deliberation

such        that   would       violate           Texas     Rule       of         Appellate

Procedure section 21.3(g).                   Because the Court sustained



                                            35
the State's objection couched in Texas Rule of Evidence

606(b),    Appellant         was   not    afforded          an   opportunity     to

develop the record on appeal in order for this Court to

review whether in fact a violation of 21.3(g)                            occurred

such that would entitle Appellant a new trial based on

jury     misconduct.         Appellant        asserts        Rule   606(b)      was

applied unconstitutionally in this case and operated to

violate        the         appellant's         constitutional             rights.

Appellant      asserts          that   the     trial        court   abused      its

discretion in denying the appellant's motion for a new

trial.


                                         PRAYER



       Appellant      Almaguer         prays     that        this   Court      make

findings       that        the     evidence       in         this      case     was

insufficient         for    a    rational      trier        of   fact     to   find


beyond     a    reasonable         doubt       that        Appellant     Almaguer

intended to cause the death of Evan and Wilda Squires.

Further,       Appellant         Almaguer      prays         this   Court      make

findings       that        the     evidence           in     this       case    was

insufficient for rational trier of fact to find beyond



                                         36
a reasonable doubt             that Appellant Almaguer was present

at   the time that        the murders             occurred.          Further still,

Appellant Almaguer prays that this Court make                                   findings

that    the   evidence        in    this    case       was   insufficient         for   a


rational      trier     of     fact     to       find       beyond    a     reasonable

doubt that Appellant Almaguer actually caused the death

of Evan and Wilda Squires.                       Appellant prays this Court

make the aforementioned findings and render a judgment

of acquittal accordingly.

       Subject     to     a        ruling        and    without       waiving        the

foregoing,       Appellant           prays         that       this        Court     make

findings      that       the        trial        court       erred        in     denying

Appellant a post-conviction inquiry into whether or not

the jury engaged in misconduct as contemplated by Texas

Rule    of    Appellate        Procedure           21.3(g)      when        the    trial

court unconstitutionally applied Texas Rule of Evidence

606(b). As such,         Appellant further prays that the trial

court     abused        its     discretion             by     denying          Appellant

Almaguer's       Motion        for     New       Trial.         In     so       finding,




                                            37
Appellant requests this finding cause this matter to be

reversed and remanded for a    new trial.


                         Respectfully submitted,

                         0.        Rene Flores,   P.C.
                         1308 S. 10th Ave
                         Edinburg, Texas 78539
                         Telephone No. (956) 383-9090
                         Facsimile Nq^—^95,61 383-9050




                                    O.   Re
                                    State            24012637


                              ATTORNEY        FOR APPELLANT




                              38
                      CERTIFICATE       OF   SERVICE


    I hereby certify that a true and accurate copy of

the foregoing Appellate Brief was served in accordance

with the rules on the following persons:

    Theodore     "Ted"   Hake
    Assistant District Attorney
    Hidalgo County District County Attorney
    Appellate Division
    Hidalgo County Courthouse
    100   N.   Closner
    Edinburg, Texas 78539
    By: Hand delivery

    TDCJ #01918635
    Arturo Sanchez Almaguer
    Texas Department of Corrections
    Connally Unit
    3001 South Emily Drive
    Beeville,     Texas 78102                          v"




                                0. Rene ^3



                      CERTIFICATE       OF   COMPLIANCE


    Pursuant     to   TRAP   9.4     (3),      I   hereby   certify   this

Brief contains 7028 words.                          "7^S    "\



                                O.      Rene




                                   39
