                          IllhfS                         ORIGINAL
                     CASE NO.   PD-1111-15                 COUnflUFQI^'Al APPEALS
                       IN THE "COURTOOF
                                                                OCT 29 2015
                 CRIMINAL APPEALS OF TEXAS"
                                                           Afe@i iK'^U^i^,, Ci(T:



            CRISTOPHER DANIEL MARQUEZ, Appellant                FILED IH
                                vs                     C0URT 0F CRIMINAL APPEALS
                THE STATE OF TEXAS, Appellee                  QCT 29 225

                                                           Abel Acosta, Clerk

                  ****************************



From the l;18th District Court of Howard County, Texas,Cause No.
  13644 and the Eleventh Court of Appeals No. 11-13-00192-CR
                  ****************************




              PETITIION FOR DISCRETIONARY REIEW




                                         CHRISTOPHER DANIEL MARQUEZ
                                          TDCJ NO.   1865294 Appellant Pro se
                                          Telford Unit

                                          3899 State Highway 98
                                         New Boston,     Texas 75570
             IDENTITY OF JUDGE, PARTIES,! AND COUNSEL

     1. The Hon. Timothy Yeats
          Judge of the 118th District Court
          P.O.   Box    528
          Big Spring,) TX 79721
     2. The Hon. Hardy Wilkerson
        118th District Attorney
          P.O.   Drawer       149
          Big Spring, TX. 79721
     3. Wayne Frost
          Trial Counsel
          203 W. Well
          Suite 205
          Midland,      TX 79701
     4. Amos W. (Trey) Keith, III
        Counsel for Appellant
          P.O.   Box    37
          Sweetwater,) TX 79556
     5.   Lisa C.      McMinn
          State Prosecuting Attorney
          209 W.    14th St.        Rm.   202
          Capitol Station, Austin, TX 78711
     6. Christopher Daniel Marquez
          Appellant
          TDCJ #01865294
          Barry B.     Telford Unit
          3899 State Highway 98
          New Boston,        TX 75570

          *Note: Petitioner has had mail returned to sender at the
Two P.O. Box numbers listed for the State Prosecuting Attorney
P.O. Box :13046 and 12405, Austin, TX 78711-3406 and 78711- 2308.




                                          li
                        TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel                  ii
Table of Contents                                        iii

Index of Authorities                                     iv

Statement Regarding Oral Argument                        :1

Statement of the Case                                    \

Statement of Procedural History                          22
Ground One for Review                                    2

     THE ELEVENTH COURT OF APPEALS, AT EASTLAND, TEXAS
     ERRED IN FINDING THAT THE EVIDENCE WAS LEGALLY
     SUFFICIENT TO SUSTAIN THE VERDICT OF GUILTY ON
     COUNT II (MURDER), BECAUSE NO RATIONAL TRIER OF
    FACT COULD HAVE FOUND BEYOND A REASONABLE DOUBT
    THAT APPELLANT INTENDED TO CAUSE SERIOUS BODILY
    INJURYTO LUIS ADOLFO PENA1, JR., SINCE THERE IS
    ONLY A MODICUM OF EVIDENCE THAT PENA WAS AN
     INTENDED VICTIM

Argument                                                      2-14

Prayer for Relief                                             15
Certificate of Sirvice                                        15
Appendix




                               iii
                       INDEX OF AUTH0RTIES
CASES


Brooks v State, 323 S.W. 3d 893, 899
(Tex. Cr. App. 2010)                                3
Brown v State, 381 S.W.   3d 565,   573
(Tex. App. - Eastland 2012, no pet)                 3
Gear v State,   340 S.W. 3d 743, 746
(Tex. Cr. App. 2011)                                3
Isassi v State, 330 S.W. 3d 633, 639
(Tex. Cr. App. 2010)                                2, 3, 14
Jackson v Virginia, 443 U.S. 307, 99 S.Ct. 2781,)
61 L. Ed. 2d 550 (1979)              ^              2, 3, :14
Tibbs v Florida, 457 U.S. 31, 41
(1982)                                              2,   3, :14




                              iv
                       IN THE COURT OF

                  CRIMINAL APPEALS OF TEXAS




            CHRISTOPHER DANIEL MARQUEZ,1 Appellant
                              VS

                 THE STATE OF TEXAS,) Appellee



->
              PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS :c

     COMES NOW CHRISTOPHER DANIEL MARQUEZ,) appellant in pro se,)
and respectfully submits this Petition for Discretionary Review.
              STATEMENT REGARDING ORAL ARGUMENT

     Appellant believes the issue presented can be determined

upon written briefs and authorities presented and does not
request oral argument in this case.

                    STATEMENT OF THE CASE

     In a single,) three-count indictment,) Appellant was accused
of Aggravated Assault, Murder, and Unlawful Possession of a Firearm

by a Felon. (Reporters Record Volume 5, pages 105-108, hereafter
for example RR 5 ps 105-108) Appellant pleaded "not guilty" to all
counts. (RR 7 p 153) Appellant was sentenced by the Judge who
assessed concurrent terms of incarceration of fifteen years,
forty years, and ten years in Counts I-III,) respectively. (RR 8 p 13)
Appellant appeals his conviction in Count II murder and forty years.
                              1
                   STATEMENT OF PROCEDURAL HISTORY

        (1) The opinion of the Eleventh Court of Appeals was handed
down on July 31, 2015 by Memorandum Opinion, (see Appendix with
opinion attached)
                                                                    't

       (2)   There was no motion for rehearing filed in the Eleventh
Court of Appeals.

        (3) The case was disposed of in the Eleventh Court of Appeals
by Memorandum Opinion on July 31, 2015 without any rehearing or
rehearing enbanc. There is nothing pending so Petition is appropriate
                       GROUND ONE FOR REVIEW

THE ELEVENTH COURT OF APPEALS,) AT EASTLAND,) TEXAS ERRED IN
FINDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUSTAIN
THE VERDICT OF GUILTY ON COUNT II (MURDER), BECAUSE NO
RATIONAL TRIER OF FACT COULD HAVE FOUND BEYOND A REASONABLE
DOUBT THAT APPELLANT INTENDED TO CAUSE SERIOUS BODILY INJURY
TO LUIS ADOLFO PENA1,) JR. , SINCE THERE IS ONLY A MODICUM OF
EVIDENCE THAT PENA WAS AN INTENDED VICTIM.

       The Court of Appeals decided      an important question of
State and Federal law in a way that conflicts with the applicable
decisions in the United States Supreme Court, namely Jackson
v Virginia, 443 U.S.307, 309 (1979) and the Court of Criminal

Appeals, namely Isassi v State,) 330 S.W. 3d 633, 638 (Tex. Cr.
App.   2010)
           '                  ARGUMENT
       This Honorable Court applies Jackson v Virginia,) 443 U.S.
307, 99 S.Ct. 2781, 61 L. Ed. 2d 550 (1979) as the standard for

reviewing sufficiency of evidence. "In determining whether the
evidence is legally sufficient to support a conviction, a
reviewing Court must consider all of the evidence in the light
most favorable to the verdict and determine whether based on the

                                 2
 evidence and reaonable inferences there from,) a rational fact

 finder could have found the essential elements of the crime

 beyond a reasonable doubt." Id.; see also Gear v State, 340

 S.W. 3d 743, 746 (Tex. Cr. App. 2011)(citing Jackson,v Virginia,
 443 U.S. at 318-19) This Honorable Court in Brooks v State, 323

 S.W. 3d 893, 899 (Tex. Cr. App.2010) determined that when viewing
 the evidence in the light most favorable to the verdict, "the
 reviewing Court   is required to defer to the jury's credibility
 and the weight determinations because the jury is the sole judge
of the witnesses credibility and the weight to be given their
testimony." Brooks, 323 S.W. 3d at899, (citing Jackson, supra at
319 and 326.) Evidence is insufficient under this standard in
four circumstances, (1) the record contains no evidence probative
of an element of the offense;    (2) the record contains a mere

"modicum" of evidence;probative of an element of the offense; (3)
the evidence conclusively establishes a reasonable doubt; and (4)
the acts alleged do not constitute the criminal offense charged.
Jackson, 443 U.S. at 314, 318 n. :11, 320; Brown v State, 381 S.W.

3d 565, 573 (Tex. App. Eastland 2012, no pet); see also Isassi v
State, 330 S.W. 3d 633, 638 (Tex. Cr. App. 2010)(citing Jackson v
Virginia, 443 U.S. at 319-20)

     If an appellate court finds that evidence insufficient under

this standard, it must revers the judgment and enter and order
of acquittal, see Tibbs v Florida, 457 U.S. 31, 41 , :102 S. Ct.
2211, 72 :Ii.Ed. 2d 652 (1982)

                                 3
     Appellant was indicted in Count II (Murder) in the following
language, (Clerk's Rgcord at 7, hereafter CR 7) :
                              II.


     CHRISTOPHER DANIEL MARQUEZ, on or about the 27th day of
October, 2012, and anterior to the presentment of this indictment,
in the County of Howard and State of Texas, did then and there,
withaintentito cause:serious bodily injury to an individual,
namely Luis Adolfo Pena Jr., commit an act clearly dangerous to
human life that caused the death of said Luis Adolfo Pena Jr.,
by shooting him in the head with a handgun, and did then and there
use or exhibit a deadly weapon, to-wit: a firearm, during the
commission of said assault.

     The relevant evidence established that: Late October 26, 2012
a Halloween party was in progress at the VFW in Howard County,
TExas. (Reporters Record Volume 6, pages 20-21,) 72, hereafter as
example, RR 6 ps 20-21,) 72) At around 2:15 am on October 27, 2012,
Raul Mendez initiated a fight by going over to Appellant's brother,
Ramiro Cleo Marquez, hereafter referred to as Cleo, and having
words with him and punching him first, because of what essentially
was a dispute over a woman. (RR 6, ps 21T23, :152) Three other
males came to the aid of Cleo, but Appellant Christopher Marquez,
hereafter Chris, hit Raul Mendez so hard he dropped to the floor.
(RR 6 ps 23, 24; see Exhibit 56 Video Chris admits to dropping
Raul Mendez; and Exhibit 62 letter by Chris stating "he cocked
it back all the way to Arkansas and dropped the guy.", RR 7 p 150
State injecting into final closing argument)
                              4
     Raul Mendez,   hereafter refered to as Raul,   chased the

four combatants outside into the parking area (RR 6 ps 23,24),

where a shooter aimed a firearm at Mendez,     and fired at least

two rounds, striking Raul twice. (RR 6 ps 29-30, 56). Another

man, Luis Adolfo Pena Jr., hereafter Luis, was struck in the head

by a bullet, which caused his death. The bullet that caused

Luis death was of a small caliber, consistent with the injuries
observed in Raul.   (RR 5 p 139)

     Two witnesses- Cynthia Trevino, hereafter refered to as

Cynthia, and Raul gavetestimony which established that the shooting
was precipitated by a two-sided dispute between Raul and Cleo and

that Chris joined the dispute against Raul. (RR 6 152-153) The

testimony of Cynthiaoand Raul identified Chris as the person who
shot Raul, and their testimony further established that Chris

intended to shoot Raul, because Cynthia and Raul both saw Chris

aim the gun at Raul and shoot him twice. (RR 6 26, 29, :155-156)
     Another witness, Michael Vanderbilt,) hereafter refered to as

Michael, testified that he saw a gun, but he could not identify
the person who was holding the gun. Michael gave an inconsistent

testimony regarding what he had seen. He testified that he saw a

gun, and that he imediately turned away. (RR 6 p 93) He testified

that he did not see Luis outside the VFW until after Luis had been

shot. (RR 6 p 96) HOwever, Michaelacknowledged that he had signed
a statement, in which hedescribed the shooter as having pointed
a gun at both RAul and Luis.   (RR 6 p 119).

                                   5
        No witness saw Chris fire a weapon at Luisi No witness sav<

Luis get shot.

        The Court's Charge on Count II contained no instruction

regarding "transferred intent'.' or "self defense." (RR 7 97-98)

        Because a sufficiency analysis is fact-intensive and

case specific, Appellant Christopher DAniel Marquez, hereafter

again referred to as Chris presents the following survey of the

relevant testimony.

        Cynthia testified that the decedent was her boyfriend; she

had been dating Luis since about August 2012.    (RR 6 10) On the

evening of October 26, 2012 Cynthia and Luis went to a couple

of bars to celebrate the finalization of her divorce. (RR 6, p 11)

Sometime after 2:00 am, Cynthia and Luis went to the VFW, where

they were joined by Felicia CAnales and David MOrales, hereafter

refered to as David Sr. Immediately after, Raul and his girlfriend

Anel arrived.    (RR 6 ps 19,20)

        A Halloween party was in progress at the VFW, complete

with a DJ, alcoholic beverages, and dancing. (RR 6 ps 20-21, 72)

After getting some drinks and proceeding to the dance area (RR 6 ps

20,21), Cynthia noticed that Raul ;was looking across to the other
side of the room, making eye contact with Chris's brother Cleo.

Raul and Cleo were staring at each other, "staring each other

down because of Anel". (RR 6 ps 2:1,22) Cynthia explained that

"Anel" (who arrived with Raul) was a former girlfriend of Cleo.

Raul went across the room"toconfront Cleo,) and they just started

fighting". (RR 6 p 23) They were "throwing fists at each other." (RR 6
P 23)
     The fight was joined by Chris, David Morales Jr. hereafter
refered to as David Jr., and a third person, all three of whom
were assisting Cleo. (RR 6 ps 23,24) Cynthia testified that
several people intervened to break up the fight, including
herself and Luis. The fight was stopped, and Cleo ran outside,
along with the others. Raul ran after them. (RR 6 p 24). "Everybody"
ran outside, including Cynthia, who was trying to stop everything".
(RR 6 p 25). Luis ran outside, behind Cynthia. (RR 6 p 25) Later
testimony by Raul Mendezsand Michael Vanderbilt stated that they
did not see Cynthia ,Luis, or anyone else until after the shooting.
No one was seen coming behind Raul or Michael until Raul saw Cynthia
by Luis and Anel picked him up, after the shooting. (RR 6 99-100;
RR 6 155-156, :168, :177)

     Cynthia described the events that followed: "Raul chases them
outside, andl run after Raul. Luis kind of stayed behind. And
when Raul got to the back of their car (a white Cadillac), there
was the first shot. (RR 6 p 26). And we both ducked down behind the
car." (RR 6 p 26) "AMd when [Raul] tries to make a run for it,
he was shot again in the back." (RR 6, p 26)
     Cynthia identified Chris as the person who shot Raul: " when
me and Raul ran up to the car, I seen [Chris] go to the back door
of that Cadillac on the driver's side and pull out that gun and point
it at Raul". (RR 6 ps 29, 56) Cynthia saw the gun discharge at Raul.
(RR 6 ps 29-30,56)   However, on Cross examination she describes
Chris as pointing his right arm and gun in his right hand straight
out. And Cleo in the drivers seat behind the wheel. (RR 6 65-66)
                              7
 This testimony by Cynthia TRevino was in spite of the fact that

 Christopher Daniel Marquez, the appellant in this instant case, has

 been left handed all his li-fe and even signed his waiver of Miranda

 on the video lefthanded. (see RR 7 ps 26-30 Exhibits 56 and 57

 the video showing Chris signing the miranda warnings left handed
 and the actual miranda document signed by Chris and Ranger Hanna as
 a witness; and testimony from Chris's mother Felicia Valencia that

 Chris is left handed, RR 7 ps 74-75)       Also there is ample testimony
 that Christopher DAniel Marquez, the Appellant in this instant

 cause is a small and short man, from about 5 ft. to reaching to
 estmate 5 ft. 5 inches in the testimony of Raul Mendez and Ranger
 Hanna. (RR 6 p6166, RR 7 p 34 states 5'7" 150 to 160 lbs and is

 impeached by Chris standing up in court romm and then Ranger Hanna
 changes his testimony to about 5'5", see RR 7 p 35) Cynthia
 continued to testify that when Raul wfeafc down from the first shot

 she went down and on her butt she scooted back across the parking
 lot. .(>RRi6i 26-27V .57-58)   Cynthia testified that "as I watch

 Raul go down, I hear another shot to my right,) and then a car
 takes off. The white cadillac takes off, and I seen someone fall

 to the ground. ANd as the car leaves and I run across the parking
 lot , I lean over, and I seen that it was [Luis]." (RR 6 p 27)
 Cynthia did not see whther Chris fired in the direction of Luis pena."
 (RR 6, p 30) Cynthia was asked whether Pena knew the Marquezs,
(Chris and C3.$o)aatod she answered, "No, I don't think so". (RR 6 p 35)
l                                  8
        Michael Vanderbilt,   hereafter refered to as Michael,    was

outside the VFW when he saw "four or five Hispanic males come

running outside, and RAul Mendez was after them.." (RR 6 p 117)

        I seen RAul. I seen a group of other people run out. I seen
        Raul run out behind them. So my first intincts was to go and
        chedk on Raul to see what was going on with him. ONce I got
        out of the car, there was a van parked in front of the white
        car that they say that the people that did the shooting were
        in. Once I got around the van, the only thing I seen was a
        gun. When I seen the gun, I turned rightuback a split second.
        It was dark out there. A split second. I turned right back
        around, heard gun shots, hit the ground, heard a car spin
        off and got up." (RR 6 p 93)

The defense attorney later asked,      "And did you see Luis out there

any where before you saw him laying on the ground.?" VAnderbilt

replied,    "No. I had seen Luis probably about approximately an hour

and a half before that at another bar, which he was having a good

time..And I didn't even know that Luis was out there until        it was

all over with." (RR 6 p 96) The defense attorney later asked

Michael VAnderbilt, hereafter, Michael, "Was anyone with Raul?",

to which Michael responded,      "Not that I can recall.   I mean, after

the fact, it was just supposed to be Mr. Pena." (RR 6 p 100)

        The prosecutor asked Michael,    "So you saw him point the gun

at [Pena and Mendez] Luis and RAul? and Michael replied "No, I didn't".

(RR 6 p 119). The prosecutor further questioned Michael by reading

a portion of his written statement (signed November 29th);        "As I

ran around the CAdillac,      I saw a Hispanic male pointing a .22 -

a black ;22 revolver toward Raul and Luis Pena". The prosecutor

asked "is that accurate?" Michael Vanderbilt answered,        "Yes.   I

mean,   Raul Mendez and Pena,   those were the dudes they were fighting.

                                  9
 Of course, it was them he was pointing the gun to". (RR 6 p :119)
       Raul Mendez, hereafter refered to as RAul, testified that he
arrived at the VFW with Anel Salas sometime after 2:00 am on
October 27, 2012. (RR 6 p .143, 147). After 10 or 15 minutes,
according to Raul, a group of males arrive, comprised of Cleo,
Chris, and two others unknown to RAul. (RR 6 148-150) Rauljcrossed
the room to confront Cleo. "So me and him had words, and I threw
a punch.. When I threw the first punch and me and him started fighting,
[the other two guys and Chris got in]". (RR 6, 152-153) The scuffle
did not last long. RAul fell to the ground, but he got up quickly,
and he saw the other four conbatants running out. Raul chased them
outside to a car, and Cleo ran to the passenger side of that car..
Raul did not know that anyone had gone outside behind him. RAul
did not know where luis Pena was. (RR 6, 168, 185) RAul ran to the
passenger side of the car to settle his issues with Cleo" but Cleo
ran around to the other side.. That's when I turned anduikooked,
and I had a gun pointed at me and I got shot". (RR 6 153-154).
Appellant Chris, was holding the gun. (RR 6 155). RAul was struck
first in the neck, causing him to fall. RAul got up and took off
running, but he was knocked down by a second shot which struck
Raul in the back. (RR 6 155-156) RAul Remained on the ground
until he was helped up by Anel, who took RAul to the hospital.
While lying^there, Raul saw Luis Pena some distance away, also
on the ground. (RR 6 156,169,176,:177) Raul was immediately
hospitalized after the shooting, where he was treated for gunshot
wounds to the neck and back. (RR 6 ps 157-162) While hospitalized
                              10
Raul learned that the bullet wound in his back yielded not trace
of the offending projectile, yet there was no apparent exit
wound. (RRC6 ps 161-162)

       Cynthia testified that she heard three shots in total. '

(RR 6 p 32) RAul testified he also heard three shots. (RR 6 p 159)
Michael VAnderbilt said that he heard approximately three shots.
(RR 6 p 95) Donald VAnderbilt recoiled hearing four shots total
two from the NOrth and two from the South. Donald VAnderbilt said
he never saw a gun. (RR 6 ps 106-108)

       A .40 caliber shell casing was recovered at the scene by
Celeste Valle, who was employed by the Big Spring Police Dept.
(RR 6 p 194) Valle also described a bullet fragment that was
recovered from the rear deck area of the suspect CAdillac. (RR 6 p
205)

       On October 31, 2012, Chris, Cleo,) and Gomezindo Diaz were
arrested together in SAn Angelo, TExas. (RR 6 ps 266-273) DEtective
Chris Chapa of the SAn Angelo Police DEpartment recovered a .40
caliber handgun from Cleo Marquez at the time of his arrest. (RR 6
ps 270-271)

       The firearms expert, Joseph Mata,i conducted comparison tests
on the .40 caliber shell casing found at the scene, and the
Springfield Armory .40 caliber pistol that was recovered from Cleo
at the time of his arrest. Mata concluded that the .40 caliber
casing found at the scene appeared to have been fired from the
.40 caliber pistol seized from Cleo Marquez at the time of his arrest,
(RR 7ps 63-65) Mata also examined the fragments recovered from the
                              11
autopsy,   and concluded that those fragments were from a small

caliber weapon, like a .22. (RR 7 p 65) The fragment recovered

from the rear deck of the CAdillac was to badly damaged for Mata

to determine the caliber of the original round. At best, the

"copper wash" feature of the fragment found in the CAdillac

indicated that the fragment was consistent with a .22 caliber

bullet.    (RR 7 ps 55-56)

       In general the evidence at trial demonstrated that Chris

Marquez, the Appellant,      intended to harm Raul Mendez, because

Chris was involved in a fight against Raul,      and because Chris was

seen pointing a fun at RAul, and shooting RAul twice. But Luis

Pena was not involved in the dispute inside the VFW.

      Viewing the evidence in light most favorable to the verdict

Appellant acknowledges that Michael VAnderbilts testimony provides

an arguable basis from which a rational jury could have infered

Appellantf's specific inrwnt to harm Luis Pena. IN particular^

Michael acknowledged his written statement, which said;      "As I

ran around the CAdillac, I saw a Hispanic male pointing a .22

—   a black .22 revolver toward RAul and Luis Pena." INdeed pointing

a gun at someone -by itself-constitutes evidence of intent to

cause harm to the person at whom one points the gun. The brief

reference to Michael    VAnderbilts written statement constitutes"

a mere modicum of evidence from which a jury might have inferred

Appellant Chris Marquez specific intent to harm Luis Pena.       Several

factors conspire to undermine the probative value of Michel

VAnderbilts reference to his statement.

                                  12
         First Michealr's testimony at trial described his opportunity
to observe as a "split second." (RR 6 p 93)

Second, Michael, denied that he had seen Luis Pena outside the

VFW until after the shooting. (RR 6 p 96); He denied seeing anyone
point a gun at RAul or Luis. (RR 6 p 119) He denied having seen
anyone with RAul outside the VFW. (RR 6 100) And he acknowledged
that he came to believe "after the fact" that Luis Pena had been with
Raul.    (100)

         Third, the written statement the prosecutor refered to was
executed a full month after the event. It appears that the statement
was influenced by information Michael obtained "after the fact",
(see RR 6 119) There was no evidence that Luis Pena was ever
involved in the fight and RAul was unaware that anyone had followed
him out of the VFW, and RAul made no mention of any involvement of
Luis    Pena.


         Fourth, the significance of the passage read from Micheal's
statement is entirely ambiguous, because the question itself was
ambiguous.

        Fifth, during the investigation of the shooting, SEargent
Brian Gordon of the Big Spring, Police DEpartment was contacted by
Michael and Donald VAnderbilt on the morning of October 27, 2012.
(RR 6 p 298) Based on    Gordonr's discussion with the VAnderbilts
Officer Gordon did not believe the VAnderbilt brothers had seen who
fired the shots. (RR 6 ps 300-301)

        Sixth, even if it were true Michael had seen a Hispanic
pointing a .22 gun he did not know who he might have seen. There
were two Hispanic men with weapons that night. Cleo had a .40 caliber.

                               :13
         Seventh, if it were true Michael saw a Hispanic pointing
a .22 gun toward Luis, toward does not constitute pointin at, aiming
at of shooting at, someone. RAul was aimed at, pinted at, and shot

at, Luis location may have placed him accidently in the line bf fire.
         Eight, Michael's testimony does nothing to minimize the likely
possibility that Luis was an unintended victim. Assuming, Cynthia,
RAul, and Michael were all correct that there were three shots,

two were accounted for by RAul's injuries, and one could have been

accounted for by a discharge from the .40 caliber later recovered

from Cleo that matched the discharged casing at the scene or the

fragment projectile missing from Raul's back or the fragment

projectile missing from the fragment in the rear back glass either
of which could have ricochet and caused the head wound to luis Pena

as there were two fragments in the wound that caused serious injury
and death to Luis Pena.

         Because there is only a modicum of evidence that Chris   ;

DAniel Marqez, had intent to harm Luis Pena in particular, and
the freat weight of evidence implies that Appellant intended to

harm RAul Mendez instead, the evidence is legally insufficient to
prove beyond a reasonable doubt that Appellant had the requisite

intent to harm Luis Pena in the manner which his intent was alleged
in the indictment. Jackson v Virginia, 443 U.S. 307, 309 (1979);
Isassi v State,    330 S.W. 3d 633, 638 (Tex. Cr. App.2010)(Evidence
is insufficient in relevant part because (2) the record contains
a mere "modicum of evidence probative of an element of the offense")
namely    in the instant case intent to cause serious injury causing

death. PLease GRant acquittal, Tibbs v Florida, 457 U.S 31,40-41(1982)
                                14
                      PRAYER FOR RELIEF

     WHEREFORE,> PREMISES CONSIDERED,) Appellant prays that
this Petition for Discretionary Review be Granted, and after
further review, the judgment of conviction in Count II (Murder)
be Reversed, and that a judgment of ACQUITTAL be entered.

                                    Respectfully submitted,

                                    iJ^Jkih^^L^.
                                    Christopher Daniel
                                                Dani<  Marquez
                                    TDCJ No. 1865294
                                    Telford Unit
                                    3899 State Highway 98
                                    New Boston,   Texas 75570

                    CERTIFICATE OF SERVICE

     This is to certify that on October 20, 2015 the Original
Petition for Discretionary Review was executed and mailed for
copying by Appellant's mother and after copying, the Original
and 11 copies were sent to the Clerk of this Court for filing
on Monday, October 26, 2015 and should be recieved on or before
the deadline for filing October 30, 2015, and on October 26, 2015
a true and correct copy was served by U.S. Mail pre-paid postage
attached to Hon. Hardy Wilkerson, :118th District Attorney, at P.O.
Drawer 149, Big Spring, Texas 79721,) and a correct and true copy
of the Petition for Discretionary REview was served to the State
Prosecuting Attorney, Lisa McMinn, at 209 W. :14th St. Rm 202, ;
Capitol Station, Austin, Texas 78711,; pursuant to TRAP 68.11.


                                       Christopher
                                                 r Daniel
                                                   Daryfel   Marquez
                                       Appellant Pro-se

     This document was executed on October 20, 2015.



                              15
           APPENDIX

OPINION BY THE COURT OF APPEALS
                                                                                           J
                                        <*&?*•/?•.




                               11TH COURT OF APPEALS
                                  EASTLAND, TEXAS
                                      JUDGMENT



Christopher Daniel Marquez,                          * From the 118th District
                                                      Court of Howard County,
                                                      Trial Court No. 13644.


Vs. No. 11-13-00192-CR                               * July 31, 2015

The State of Texas,                                  * Memorandum Opinion by Wright, CJ.
                                                       (Panel consists of: Wright, C.J.,
                                                       Willson, J., and Bailey, J.)

      This court has inspected the record in this cause and concludes that
there is no error in the judgment below. Therefore, in accordance with this
court's opinion, the judgment of the trial court is in all things affirmed.
Opinion filed July 31, 2015




                                       In The



        eiebenty Court of ganeate
                                No. 11-13-00192-CR



           CHRISTOPHER DANIEL MARQUEZ, Appellant

                                          V.

                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 118th District Court
                                Howard County, Texas
                              Trial Court Cause No. 13644



                      MEMORANDUM                OPINION

       The grand jury returned a three-count indictment against Christopher Daniel
Marquez.     In Count I, the grand jury charged Appellant with the offense of
aggravated assault causing serious bodily injury to Raul Mendez; in Count II, it
charged him with the offense of murder of Luis Adolfo Pena, Jr.; and in Count III,
it charged him with the offense of unlawful possession of a firearm by a felon. After
a trial, thejury found him guilty on all three counts,1 and the trial court then assessed
his punishment at confinement for fifteen years, forty years, and ten years
respectively. The trial court ordered that the sentences were to run concurrently.
We affirm.

       Appellant presents us with one issue: the evidence is insufficient to show that
Appellant intended to cause serious bodily injury to Luis Adolfo Pena, Jr., the
murder victim. Appellant has not challenged his convictions under Count I and
Count III.

       We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.
App.—Eastland 2010, pet. refd). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We defer to the jury's role as the sole judge of the
witnesses' credibility and of the weight to be afforded to that testimony. Brooks,
323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting
inferences, we will presume that the factfinder resolved any conflicts in favor of the




        "Before the testimony began, and without objection, the State struck the word "serious" before
"bodily injury" in Count I of the indictment. The charge in Count I of the indictment then became
aggravated assault causing bodily injury; the offense of which the jury ultimately found Appellant guilty.
However, inthejudgment, thetrial court recited thattheconviction was fortheoffense ofaggravated assault
causing serious bodily injury. But there has been no appeal from thatjudgment.
                                                    2
prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.

      When viewed in the light most favorable to the verdict, the evidence showed
that around 10:00 p.m. on Friday, October 26, 2012, Cynthia Trevino and
Luis Pena, Jr. went to a club together to celebrate the fact that her divorce had
become final. Cynthia and Luis had known each other for about fifteen years, but
had only become romantically involved in August 2012.
      Cynthia and Luis first went to a couple of different clubs in Big Spring. At
each ofthe places, they had drinks with several people, including Raul Mendez, who
was Cynthia's cousin, and Raul's date, Anel.
      Friday night turned into Saturday morning, and eventually, sometime after
2:00 a.m., Cynthia and Luis ended up for more drinks at a Halloween party at the
VFW hall in Big Spring. According to Cynthia, Raul and Anel got to the VFW
"right after" she and Luis did. Not long thereafter, Cynthia noticed that Raul was
looking across to the other side of the building; he was looking at Ramiro "Cleo"
Marquez, Appellant's brother.     Raul and Cleo were "staring each other down
because of Anel." Anel was Cleo's former girlfriend.
       Raul walked across the room to confront Cleo, and when he got there, they
began to fight. Four others, including Appellant, joined Cleo in the fight against
Raul. Cynthia, Luis, and other "random people" broke up the fight. Cleo and the
others who were fighting with him ran outside. Raul ran after them. "Everybody
ran. Everybody ran."
      When Raul ran to the back of "their" vehicle (a white Cadillac), Appellant
shot him. At that time, Appellant was on the driver's side of the vehicle toward the
back. Raul was behind the vehicle, close to the trunk. As Raul tried to "make a run
for it," Appellant shot him again, this time in the back. As Cynthia watched Raul
fall, she heard another shot to her right. After the shot was fired, Appellant and the
                                          3
others "[took] off in the vehicle. It was at this point that she found Luis lying on
the ground with a bullet hole in his head. Cynthia told the jury that it was there on
that parking lot that Luis took his last breath.
          Appellant was the only person that Cynthia saw with a gun that morning, and
she watched him point it at Raul and fire. Raul and Cynthia both testified that Raul
was shot twice. At the time, Appellant was on the driver's side of the vehicle, and
Raul was on the passenger's side. Appellant fired the first shot across the roof of
the vehicle.     Appellant shot Raul the second time as Raul was running away;
Appellant shot him in the back. Raul continued to run and ultimately ended up
hiding behind Anel's vehicle, which was located on the south side ofthe parking lot.
As he was taking cover there, Raul heard a third shot.
          Other witnesses testified that they were on the parking lot at the time of the
shootings and heard gunshots. Michael Vanderbilt said that he heard approximately
three shots, but that he could not identify who the shooter was and that, when he saw
a gun, he immediately turned away. He also testified that he did not see Luis outside
until after Luis had been shot. However, in an earlier statement that he had made,
Michael said that the shooter pointed a black .22 revolver toward Raul and Luis.
The expert testimony in the case indicated that Luis's wound was "consistent with a
soft lead, small caliber projectile, such as would be commonly seen in a .22 long
rifle."

          Another witness, Donald Vanderbilt, testified that he heard about two shots to
the south side of where he was in the parking lot and two shots to the north side of
where he was in the parking lot. Raul's blood was found on the ground on the south
side of the parking lot—the passenger's side of the vehicle—behind Anel's vehicle
where he was hiding. Luis's body was found on the north side of the parking lot.
          Appellant's position on appeal is that the evidence constitutes no more than
"a modicum of evidence that Appellant intended to harm" Luis rather than Raul. He
                                             4
claims the evidence "overwhelmingly implied" that, "at best," Luis was an
unintended victim and that Raul was the intended victim. Further, Appellant
contends that the jury charge did not contain an instruction on transferred intent.
Therefore, argues Appellant, even though the evidence would have supported a
conviction under that theory, the jury was not authorized to convict under a theory
of transferred intent.

       The State counters that it was not relying on a theory of transferred intent to
support the conviction. The State maintains that there was more than a "mere
modicum" of evidence from which a rational jury could have found beyond a
reasonable doubt that Appellant intentionally shot Luis.
      A person commits the offense of murder if that person intentionally or
knowingly causes the death of an individual or intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual. Tex. Penal Code Ann. § 19.02(b) (West 2011). An inference that a
person acted with the requisite intent may be drawn from his acts, words, and
conduct. Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim. App. [Panel Op.] 1982);
Griffith v. State, 315 S.W.3d 648, 651 (Tex. App.—Eastland 2010, pet. ref d).
Further, an intent to kill may be inferred from the use of a deadly weapon. Jones v.
State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
      When we view the evidence in the light most favorable to the verdict, we agree
with the State that a rational trier of fact could have found the essential elements of

the crime charged beyond a reasonable doubt. As far as any alleged conflicts in the
evidence, the jury was free to resolve them. See Mosley v. State, 983 S.W.2d 249,
254 (Tex. Crim. App. 1998). We assume that the jury resolved any conflicts in favor
of the verdict. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996).
      When viewed under the appropriate standard of review, the evidence shows
that Luis had intervened in the fight between Cleo and Raul—a fight in which

                                          5
Appellant was involved. Witnesses testified that Appellant fired two shots at Raul,
hitting him both times. Next, as the State argues, the evidence shows that there were
two different lines of fire and that those lines of fire were in two different directions.

The shots that hit Raul were fired in a different direction than the shot that killed

Luis. Luis was shot on the same side of, and near to, the place where Appellant was
standing. Raul was shot on the opposite side from where Appellant was standing.
There was testimony from witnesses that three shots were fired. That testimony
conforms to the evidence that Appellant shot Raul twice and shot Luis once. The
bullet that caused Luis's single wound to the head was consistent with wounds
caused by small caliber bullets like a .22. Testimony showed that Appellant was
holding and aiming a black .22 revolver. Witnesses saw Appellant with a gun, a
black .22 revolver; no one saw anyone else with a gun during the incident.
      From this evidence, and the reasonable inferences to be drawn from it, we
believe that a rational jury could have found beyond a reasonable doubt that
Appellant intended to cause serious bodily injury to Luis and that Appellant was
guilty ofthe offense ofmurder as charged in Count II ofthe indictment. We overrule
Appellant's sole issue on appeal.
      We affirm the judgment of the trial court.




                                                JIM R. WRIGHT

                                                CHIEF JUSTICE


July 31, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
