                                                                                            ACCEPTED
                                                                                         13-14-00530-cr
                                                                        THIRTEENTH COURT OF APPEALS
                                                                               CORPUS CHRISTI, TEXAS
        FILED                                                                      8/26/2015 3:38:52 PM
IN THE 13TH COURT OF APPEALS                                                     CECILE FOY GSANGER
        CORPUS CHRISTI                                                                           CLERK

          8/26/15                NO. 13-14-00530-CR
DORIAN E. RAMIREZ, CLERK
BY Delia S. Rodriguez                 IN THE
                                                             RECEIVED IN
                                                       13th COURT OF APPEALS
                          COURT OF APPEALS FOR THE CORPUS CHRISTI/EDINBURG, TEXAS
                                                        8/26/2015 3:38:52 PM
                    THIRTEENTH SUPREME JUDICIAL DISTRICT CECILE FOY GSANGER
                                                                Clerk
                               CORPUS CHRISTI, TEXAS

              ______________________________________________________

                                ROBERTO CARDENAS GARZA

                                        VS.

                                 THE STATE OF TEXAS

              ______________________________________________________

                                 ON APPEAL FROM THE

                          206th JUDICIAL DISTRICT COURT

                          EDINBURG, HIDLAGO COUNTY, TEXAS

                               IN CAUSE NO. CR-4064-11-D

              ______________________________________________________

                         APPELLANT’S AMENDED BRIEF
              ______________________________________________________


                                                      ALFREDO MORALES, JR.
                                                      ATTORNEY AT LAW
                                                      P.O. BOX 52942
                                                      MCALLEN, TX 78505
                                                      (956) 536-8800 TEL
                                                      (956) 381-4269 FAX
                                                      EMAIL: amjr700@gmail.com
                                                      APPELLANT’S COUNSEL


                                ORAL ARGUMENT WAIVED
              IDENTITY OF PARTIES AND COUNSEL

    The undersigned counsel of record certifies that the

persons listed below have an interest in the outcome of

this case.   This representation is made so that the judges

of this court may properly evaluate said information to

determine whether there exists any reason requiring his/her

disqualification or recusal from the case at bar.

    A. Parties

        Appellant:               Roberto Cardenas Garza

        Appellee:                State of Texas

    B. Counsel at Trial

        For Appellant:            Rogelio Garza
                                  Attorney at Law
                                  310 W. University
                                  Edinburg, TX 78539

        For Appellee:             Joaquin Zamora, ADA
                                  Hidalgo County Dist. Atty.
                                  100 N. Closner
                                  Edinburg, TX 78539

    C. Counsel on Appeal

        For Appellant:           Alfredo Morales, Jr.
                                 P.O. Box 52942
                                 McAllen, TX 78505

        For Appellee:            Ted Hake, ADA
                                 Hidalgo County Dist. Atty.
                                 100 N. Closner
                                 Edinburg, TX 78539


                          i
                   TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iii - vi

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1

APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . 1 - 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . 2 - 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . 3

ARGUMENT UNDER POINT OF ERROR NUMBER ONE . . . . . . 4 - 11

ARGUMENT UNDER POINT OF ERROR NUMBER TWO . . . . .     12 - 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . 25

PRAYER . . . . . . . . . . . . . . . . . . . . . . .    26

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . 27

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 27




                         ii
               INDEX OF AUTHORITIES

                    CONSTITUTIONS

United States Constitution

    5th Amendment . . . . . . . . . . . . . . 4, 5, 8, 11

    6th Amendment . . . . . . . . . . . . . . . . . 10

                     STATUTES

Texas Penal Code

    Section 6.03(a) . . . . . . . . . . . . . . . . 14

    Section 6.03(b) . . . . . . . . . . . . . . . . 14

    Section 7.02 . . . . . . . . . . . . . . . . . . 20

    Section 19.03(a)(2) . . . . . . . . . . . . . . . 14

                      CASES

United States Supreme Court

    Arizona v. Robinson, 108 S.Ct. 2093 (1988) . . . . 10

    Davis v. U.S., 114 S.Ct. 2350 (1994) . . . . . . . 11

    Edwards v. Arizona, 101 S.Ct. 1880 (1981) . . .   9, 11

    Jackson v. Virginia, 116 S.Ct. 717 (1996) . . . . 12

    Miranda v. Arizona, 86 S.Ct. 1602 (1964) . . . . . 8

    Rhode Island v. Innis, 100 S.Ct. 1682 (1980) . . . 10

    Stansbury v. California, 114 S.Ct. 1526 (1994) . . 8

Texas Court of Criminal Appeals

    Adames v. State, 353 S.W.3d 854 (Tex. Crim. App.
    2011) . . . . . . . . . . . . . . . . . . . . . . 21


                             iii
Brooks v. State, 323 S.W.3d 895 (Tex. Crim.
App. 2010) . . . . . . . . . . . . . . . . . . . 12

Burden v. State, 55 S.W.3d 608 (Tex. Crim.
App. 2001) . . . . . . . . . . . . . . . . . . . 12

Denton v. State, 911 S.W.2d 388 (Tex. Crim.
App. 1995) . . . . . . . . . . . . . . . . . . . . 12

Dohitt v. State, 931 S.W.2d 244 (Tex. Crim.
App. 1996) . . . . . . . . . . . . . . . . . . . 8

Fuentes v. State, 991 S.W.2d 267 (Tex. Crim.
App. 1999) . . . . . . . . . . . . . . . . . . . 13

Gross v. State, 380 S.W.3d 181 (Tex. Crim.
App. 2012) . . . . . . . . . . . . . . . . . . 20, 21

Haggins v. State, 785 S.W.2d 827 (Tex. Crim.
App. 1990) . . . . . . . . . . . . . . . . . . . 15

Herrin v. State, 125 S.W.3d 436 (Tex. Crim.
App. 2002) . . . . . . . . . . . . . . . . . . . 24

Janenka v. State, 739 S.W.2d 813 (Tex. Crim.
App. 1987) . . . . . . . . . . . . . . . . . . . 9

Johnson v. State, 68 S.W.3d 644 (Tex. Crim.
App. 2002) . . . . . . . . . . . . . . . . . . . 5

Johnson v. State, 414 S.W.3d 184 (Tex. Crim.
App. 2013) . . . . . . . . . . . . . . . . . . . 8

Montanez v. State, 195 S.W.3d 101 (Tex. Crim.
App. 2006) . . . . . . . . . . . . . . . . . . . 5

Montelongo v. State, 681 S.W.2d 47 (Tex. Crim.
App. 1984) . . . . . . . . . . . . . . . . . . . 9

Malik v. State, 953 S.W.2d 234 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . . . . 13

McDuff v. State, 939 S.W.2d 607 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . . . . 13


                      iv
    Patrick v. State, 906 S.w.2d 248 (Tex. Crim.
    App. 1995). . . . . . . . . . . . . . . . . 14, 16

    Pecina v. State, 361 S.W.3d 68 (Tex. Crim.
    App. 2012) . . . . . . . . . . . . . . . . . 11

    Rodriguez v. State, 146 S.W.3d 674 (Tex. Crim.
    App. 2004) . . . . . . . . . . . . . . . . . . 14

    Salazar v. State, 86 S.W.3d 640 (Tex. Crim.
    App. 2002) . . . . . . . . . . . . . . . . . . . 16

    State v. Ortiz, 382 S.W.3d 367 (Tex. Crim.
    App. 2012) . . . . . . . . . . . . . . . . . . . 5

    Turner v. State, 805 S.W.2d 423 (Tex. Crim.
    App. 1991) . . . . . . . . . . . . . . . . . . 14

    Turro v. State, 867 S.W.2d 43 (Tex. Crim. App.
    1993) . . . . . . . . . . . . . . . . . . . . . 13

    Villarreal v. State, 935 S.W.2d 134 (Tex. Crim.
    App. 1996) . . . . . . . . . . . . . . . . . . . 6

Texas Courts of Appeals

   Delgado v. State, 840 S.W.2d 594 (Tex. App. –
   Corpus Christi 1992) . . . . . . . . . . . . . . 16

   Erivin v. State, 333 S.W.3d 151 (Tex. App. – Houston
   [1st Dist.] 2010) . . . . . . . . . . . . . . . . 21, 24

   Martinez v. State, 645 S.W.2d 322 (Tex. App. – Corpus
   Christi 1982) . . . . . . . . . . . . . . . . . . . 11

   Montgomery v. State, 198 S.W.3d 67 (Tex. App. – Ft.
   Worth 2006) . . . . . . . . . . . . . . . . . . . . 16

   Murray v. State, 24 S.W.3d 881 (Tex. App. – Waco
   2000) . . . . . . . . . . . . . . . . . . . . . . 13

   State v. Vasquez, 305 S.W.3d 289 (Tex. App. – Corpus
   Christi 2009) . . . . . . . . . . . . . . . . . . . 11



                          v.
Wooden v. State, 101 S.W.3d 542 (Tex. App. – Ft.
Worth 2003) . . . . . . . . . . . . . . . . . . . 24




                    vi.
                 STATEMENT OF THE CASE

    Appellant Roberto Cardenas Garza was charged by

indictment with the offense of capital murder.    More

specifically, the State alleged at trial that Appellant, on

or about August 15, 2011, did then and there intentionally

and knowingly cause the death of David Alejandro Martinez

by shooting him with a firearm while in the course of

committing, or attempting to commit, the offense of

kidnapping.    (RR. Vol. 31, p. 16). The Appellant entered a

not guilty plea to the charge before the jury at his formal

arraignment.   (RR. Vol. 31, p. 16, ln. 21).   The State did

not seek the death penalty.

    After the State presented its evidence, the jury found

Appellant guilty of the offense of capital murder as

charged in the indictment, (RR. Vol. 33, p. 58), and the

trial court then imposed an automatic life sentence,

without parole, in accordance with the law.    (RR. Vol. 33,

p. 63).

    Appellant then timely filed his notice of appeal with

the trial court.

                 APPELLANT’S POINTS OF ERROR

APPELLANT’S POINT OF ERROR ONE:

    The trial court abused its discretion in failing

                           1
to grant the Appellant’s pre-trial motion to suppress the

statements made to the police.


APPELLANT’S POINT OF ERROR NUMBER TWO:

   The evidence introduced at the Appellant’s trial was

legally insufficient to support the jury’s guilty verdict

for the offense capital murder.


                 STATEMENT OF FACTS

    The evidence presented at trial showed that, late in

the afternoon of August 17, 2011, police responded to a

call of a body found in an open filed at a remote location

in western Hidalgo County, Texas.     Based on the evidence

found at the scene and the advanced decomposition state of

the body, the police immediately suspected foul play.     The

initial investigation developed several potential suspects

and “persons of interest,” including the Appellant.

    Days later, as police officers executed a search

warrant at Appellant’s house for possible evidence relating

to the body discovered in the open field, Appellant

approached his house from the adjacent roadway.     However,

alarmed by the number of officers and police units at his

house, he did not stop.   Not knowing what to do, he

immediately contacted his lawyer (who was representing him

                           2
in an unrelated drug case) and asked for his advice.      His

lawyer, believing the presence of police was related to his

pending drug case, advised him to stop and return to the

residence.

     Appellant promptly returned to his residence, but was

not allowed to go into his home.     He was then detained,

without a warrant, and taken to the Hidalgo County

Sheriff’s Department, where police interrogated him for

over 20 hours, resulting in three separate statements in

which he ultimately admitted to being present when David

Martinez, the person later identified to be the body found

in the open field, was killed.     (RR. Vols. 31 – 32).

                    SUMMARY OF THE ARGUMENT

     The Appellant contends that the trial court abused its

discretion when it denied his motion to suppress all three

statements on the ground that his 5th Amendment right to

counsel was violated.

     Without waiving the foregoing argument, the Appellant

further alleges that the evidence introduced at his trial

on the merits was legally insufficient to prove all of the

elements of the offense of capital murder beyond a

reasonable doubt.


                            3
            APPELLANT’S POINT OF ERROR NUMBER ONE

     THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL
THREE OF APPELLANT’S CONFESSIONS ON THE GROUND THAT HIS
      FIFTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED.

     As stated earlier, upon arriving at his house while

police executed a search warrant on the premises, Appellant

was stopped, denied entry into his house, detained without

a warrant, and transported to the Hidalgo County Sheriff’s

Office in an unmarked police unit.    There he remained,

incommunicado, for over 20 hours of continuous, repeated

interrogation by three investigators who took turns and

questioned him at different times.    And, while Appellant

made a request to speak to his previously-retained lawyer,

the investigators denied his request, insisting he did not

a lawyer.   Eventually, under the pressure of incessant

interrogation, Appellant gave three statements confirming

his presence at the murder scene.    (RR. Vol. 20; See also,

Supplemental RR. Vol. 1, Exhibits A – E).

     The Appellant filed a pre-trial motion to suppress,

which the trial court denied after an evidentiary hearing.

     The Appellant contends the trial court erred in not

suppressing his three written statements because the

investigators violated his 5th Amendment right to counsel.


                          4
    A trial court’s ruling of a suppression motion is

reviewed under an abuse of discretion standard.    In

reviewing is factual and legal determinations in a

suppression hearing, the appeals court conducts a

bifurcated review.   Montanez v. State, 195 S.W.3d 101

(Tex. Crim. App. 2006).   Under this standard, almost

total deference is given to the trial court’s factual

determination, particularly on those questions and issues

that deal with the credibility of the witnesses.     However,

the appeals court reviews de novo the trial court’s ruling

on mixed questions of law and fact which do not turn on the

credibility or demeanor of the witnesses, Johnson v.

State, 68 S.W.3d 644 (Tex. Crim. App. 2002), and those

determinations that present purely “legal rulings.”

State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012).

Thus, while affording almost total deference to the

findings of fact, the court reviews de novo the conclusions

of law to determine if the trial court abused its

discretion in denying the suppression motion and admitting

the confession.   Montanez, supra.   Of course, a trial

court’s ruling on a suppression motion must be upheld if it

is reasonably supported by the record and is correct on any

legal theory of law applicable to the case.   Villarreal v.

                          5
State, 935 S.W.2d 134 (Tex. Crim. App. 1996).

    At the suppression hearing, Appellant testified that,

having previously spoken to his lawyer (Eddie Medrano),

whom he had already retained in another pending case, over

the cell phone while being detained at his house, he

requested to speak to him upon being advised of his Miranda

rights at the Sheriff’s Office.   The investigators,

however, insisted that a lawyer was unnecessary, and

declined his request.

    Quite telling was the fact that, in indicating that he

understood his constitutional rights, he initialed all of

the Miranda warnings and waivers, with the exception of the

right to consult with a lawyer, a clear indication that he

was not waiving that particular right, and lending further

support to his contention that he never waived his right to

counsel, and had in fact asserted his right to speak to his

retained lawyer.   (Vol. 20, pp. 109 – 120).

    Each investigator testified that Appellant went to

the station voluntarily, that he was Mirandized prior to

the taking of each statement, that he understood his

constitutional rights, that he never requested to speak to

a lawyer, and that he voluntarily gave them the statements.

One investigator (Hernan Perez) did acknowledge that

                             6
Appellant had initialed only four of the five warnings /

waivers. (Herman Perez, RR. Vol. 20, pp. 6 – 36; Max Cantu,

RR. Vol. 20, pp. 37 – 75; Vic De Leon, RR. Vol. 20, pp. 75

– 93).

    Appellant’s lawyer, Heriberto “Eddie” Medrano,

testified that he spoke to Appellant on his cell phone

while on his way to a court hearing in San Antonio, that

Appellant told him he police were at his house, and that he

was being detained.     Believing that he was being detained

for a pending drug case for which he was representing

Appellant, he advised him to contact him once he got to

the Sheriff’s Office.     Mr. Medrano further testified that

on his return from his court hearing, he and another lawyer

(Rudy Martinez) had stopped at the Sheriff’s Office to

speak to Appellant.     Once there, he identified himself as

Appellant’s lawyer and requested to visit with Appellant,

but that an investigator, whom he identified as Max Cantu,

had told him Appellant did not want to talk to him

(Medrano).   (RR. Vol. 20, pp. 95 – 104).

    Attorney Rudy Martinez confirmed the conversation

between Medrano and Cantu.     (RR. Vol. 20, pp. 105 – 109).

    Investigator Cantu testified that he did not recall

speaking to Appellant’s lawyer, but indicated that it was

                           7
“possible.”   Nonetheless, he claimed that, even if he had

had such a conversation with the lawyer, he opined that a

lawyer could not invoke the 5th Amendment right to counsel

on behalf of a client.   (RR. Vol. 20, pp. 63 – 65).

     The question of whether the Appellant was detained,

seized, and in custody is subject to a de novo review by

the appeals court.   Johnson v. State, 414 S.W.3d 184 (Tex.

Crim. App. 2013).

     In the case at bar, there is no question that

Appellant was in custody for purpose of the Miranda rule.

Miranda v. Arizona, 86 S.Ct. 1602 (1964).   Given the facts

and circumstances surrounding his warrantless detention at

his house and his subsequent transportation to the

Sheriff’s Office, in a police unit, by a criminal

investigator, it is clear that, a reasonable person in his

position would have believed that his freedom of movement

was restrained to the degree associated with a formal

arrest.   Stansbury v. California, 114 S.Ct. 1526 (1994).

Therefore, the subjective views of the investigators in

this case – all of whom attempted to characterize his

leaving with them as “voluntary,” since he was neither

handcuffed or under formal arrest – are immaterial.     See,

Dothitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996).

                          8
Accordingly, Miranda was applicable and, once he requested

to speak to his retained lawyer, and all interrogations

should have ceased.    Edwards v. Arizona, 101 S.Ct. 1880

(1981).   Because the interrogations continued and the

investigators ultimately obtained the Appellant’s

statements, all three statements should have been

suppressed as they were a direct product of the violation

of Appellant’s constitutional right to a lawyer.

    Moreover, Investigator Cantu’s observation that the

right to counsel cannot be invoked by a lawyer on behalf

of his client, is generally speaking accurate, Montelongo

v. State, 681 S.W.2d 47 (Tex. Crim. App. 1984), he clearly

misapplied the rule in the case at bar, and totally

mischaracterized the Appellant’s lawyer’s presence at the

Sheriff’s Office.     Contrary to Cantu’s assertion, Mr.

Medrano was not there to invoke the Appellant’s right to

counsel, because Appellant had already done so; rather,

he was there to confirm an already existing attorney-

client relationship, Janeka v. State, 739 S.W.2d 813 (Tex.

Crim. App. 1987), and to exercise his right to visit

with, and speak to, his client.    In fact, he had talked

to Appellant over the cell phone just hours earlier while

police were executing a search warrant on the house.       That

                             9
Mr. Medrano was representing Appellant in an unrelated drug

case is neither controlling or relevant for purposes of the

legal analysis under Miranda.    He was the Appellant’s

lawyer and he was there to protect his client’s interests.

     More importantly, in this particular context, the

Miranda 5th Amendment right to counsel, unlike the 6th

Amendment right to counsel, is not offense specific.

Arizona v. Roberson, 108 S.Ct. 2093 (1988), and Mr. Medrano

could have talked to Appellant in his capacity as his

current lawyer, even though he had not been retained for

the offense for which Appellant was being questioned.

     The investigators knew, from the outset, that their

express questioning was reasonably likely to elicit

incriminating responses.   Rhode Island v. Innis, 100 S.Ct.

1682 (1980).   At the suppression hearing – and even at

trial – the investigators unabashedly admitted that their

purpose in taking him to the station was to secure a

confession from the Appellant.

     Appellant invoked his right to counsel, yet they

ignored his request, and continued with their questioning.

That Appellant then continued to cooperate and talk with

the investigators, even after invoking his right to

counsel, is of no moment and cannot be construed as a

                           10
waiver of his right to a lawyer.     Edwards v. Arizona,

supra; Martinez v. State, 645 S.W.2d 322 (Tex. App. –

Corpus Christi 1982).

     The facts established that Appellant invoked his right

to counsel under Miranda.   His lawyer did not show up at

the station out of an act of benevolence or clairvoyance.

He was there because of an already existing attorney-client

relationship, and he wanted to consult with his client.

     Reviewing the testimony objectively and under the

totality of circumstances present in the case, Davis v.

U.S., 114 S.Ct. 2350 (1994); Pecina v. State, 361 S.W.3d

68 (Tex. Crim. App. 2012), the evidence demonstrates that

the Appellant invoked his 5th Amendment right to counsel.

      Accordingly, because the statements obtained by the

police were a direct and immediate consequence of a

relentless interrogation conducted in violation of his

Miranda’s right to counsel, all three of Appellant’s

statements should have been suppressed and excluded at

his jury trial.

     The trial court abused its discretion in failing to

grant the Appellant’s motion to suppress his statements.

Martinez v. State, supra; State v. Vasquez, 305 S.W.3d 289

(Tex. App. – Corpus Christi 2009).

                            11
              APPELLANT’S POINT OF ERROR NUMBER TWO

  THE EVIDENCE ADDUCED AT APPELLANT’S TRIAL WAS LEGALLY
 INSUFFICIENT TO SUPPORT THE JURY’S GUILTY VERDICT FOR THE
                 OFFENSE OF CAPITAL MURDER

    Appellant contends that the evidence presented for the

jury’s consideration at his trial was legally insufficient

and failed to prove beyond a reasonable doubt that he

intentionally and knowingly caused the death of David

Alejandro Martinez.

    In reviewing the legal sufficiency of the evidence,

the appeals court examines all of the evidence in the light

most favorable to the verdict in order to determine whether

any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.    Jackson

v. Virginia, 116 S.Ct. 717 (1996); Denton v. State, 911

S.W.2d 388 (Tex. Crim. App. 1995).    The Texas Court of

Criminal Appeals has determined that the legal sufficiency

review is the only standard that an appellate court must

undertake to ascertain whether the evidence is sufficient

to support each element that the State is required to prove

to the jury.   Brooks v. State, 323 S.W.3d 895 (Tex. Crim.

App. 2010).    This standard is the same for both direct and

circumstantial cases.    Burden v. State, 55 S.W.2d 608 (Tex.

Crim. App. 2001).     Guided by this standards, the evidence

                             12
is measured by the elements of the offense as defined by a

hypothetically correct charge for the case, Malik v. State,

953 S.W.2d 234 (Tex. Crim. App. 1997), and the appeals

court considers all the evidence adduced at trial,

regardless of whether or not it was properly admitted.

Murray v. State, 24 S.W.3d 881 (Tex. App. – Waco 2000).

The jury, as the trier of fact, is the sole judge of the

credibility of the witnesses and of the strength of the

evidence, and it may choose to believe or disbelieve any

portion of the witnesses’ testimony.    Fuentes v. State, 991

S.W.2d 267 (Tex. Crim. App. 1999).   When faced with

conflicting evidence, the appeals court presumes the jury

resolved conflicts in favor of the prevailing party.    Turro

v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993).    Moreover,

the appeals court must affirm the verdict if it determines

that, based on the evidence presented, any rational trier

of fact could have found all the essential elements of the

charged crime beyond a reasonable doubt. McDuff v. State,

939 S.W.2d 607 (Tex. Crim. App.1997).

    In the case at bar, in order to prevail under the

foregoing legal standard, the State had to prove beyond a

reasonable doubt that the Appellant, on the alleged date,

intentionally and knowingly caused the death of another in

                         13
the course of committing a kidnapping.    Tex. Pen. Code,

Sect. 19.03(a)(2).    Under the law, a person acts

“intentionally,” or with intent, with respect to the

nature of his conduct or to a result of his conduct when it

is his conscious objective or desire to engage in the

conduct or cause the result, Tex. Pen. Code, Sect. 6.03(a),

and acts “knowingly,” or with knowledge, with respect to

the nature of his conduct or to circumstances surrounding

his conduct when he is aware of the nature of his conduct

or that the circumstances exist.   A person acts knowing, or

with knowledge, with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to

cause the result.    Tex. Pen. Code, Sect. 6.03(b).

    Additionally, in a capital murder case, the State must

prove that the accused committed the underlying aggravating

crime (in this instance, kidnapping), Patrick v. State, 906

S.W.2d 2481 (Tex. Crim. App. 1995); Rodriguez v. State, 146

S.W.3d 674 (Tex. Crim. App. 2004), and prove that the

accused, not only intended to engage in the act that

caused the death, but also that he had the specific intent

to cause the death of the individual.    Turner v. State, 805

S.W.2d 423 (Tex. Crim. App. 1991).

 Given the statutory definitions, it is clear that the

                          14
mental state criminalized is the state of mind that

contemplates the particular prohibited result.    See,

Haggins v. State, 785 S.W.2d 827 (Tex. Crim. App. 1990).

In this particular case, then, the State had to prove,

beyond a reasonable doubt, that Appellant intentionally or

knowingly caused the kidnapping and death of David

Alejandro Martinez.

    As the record on appeal demonstrates, the State’s

witness testimony, together physical and forensic evidence

introduced at trial, failed to establish beyond a

reasonable doubt that Appellant intentionally or knowingly

– and with the requisite specific intent – killed David

Martinez.

    Before addressing the legal insufficiency of the

evidence, and without waiving his first point of error

(but assuming, arguendo, that the court overrules it),

the Appellant readily acknowledges that he gave

three detailed statements to the police regarding the

events leading up to that fateful day.   However, it is well

settled law that a person may not be convicted upon his

extrajudicial confession alone; rather, the State must

establish all the elements of the crime for which he is

charged totally independent of the confession.    In short,

                        15
there must be sufficient, independent evidence tending to

corroborate the facts contained in the confession.     Salazar

v. State, 86 S.W.3d 640 (Tex. Crim. App. 2002); Delgado v.

State, 840 S.W.2d 594 (Tex. App. – Corpus Christi 1992).

    The evidence in the case at bar, contrary to the

assertion of the State at trial, corroborates the

Appellant’s statements that he did not harbor the specific

intent to kill Martinez, as alleged in the indictment.

    Appellant openly admits to putting the zip ties on

Martinez - but only at the insistence (and under the

direction) of - “Pepe,” and accompanying them (as a

passenger in Pepe’s truck) to a couple of houses where

Martinez claimed the others responsible for stealing the

Marijuana lived, and then to the open filed where

Martinez was ultimately murdered.   However, none of those

acts rose to the level of having engaged in the intentional

and knowing conduct contemplated by the statute.     Proof of

a culpable mental state invariably depends upon

circumstantial evidence, Montgomery v. State, 198 S.W.3d 67

(Tex. App. – Ft. Worth 2006), and intent can be inferred

from the facts and circumstances regarding the event in

question.   Patrick v. State, Id, supra.

    However, a close examination of the Appellant’s

                          16
statements does not show that, by engaging in the conduct

in which he admits doing, it was “his conscious objective

or desire to engage in the conduct or cause the result,” or

that “he (was) aware that his conduct (was) reasonably

certain to cause the result.”   In other words, by having

placed the zip ties on Martinez and then riding as a

passenger in the pickup truck driven by Pepe to the homes

of Martinez’s alleged cohorts and finally to the remote

area, it was not Appellant’s “conscious objective or

desire” to cause Martinez’s death; or, that, even by having

engaged in such conduct, he had the specific intent to

cause his death.

    The evidence introduced at trial in this case, when

coupled with the Appellant’s statements to the police,

clearly supports his contention that he did not engage in

any act or course of conduct – with the requisite intent or

knowledge as contemplated by the capital murder statute –

to kidnap and kill Martinez.

    The testimonial, physical, scientific and forensic

evidence was scant and did not support the State’s theory

that Appellant intentionally and knowingly murdered

Martinez, either as a principal or party.

    More specifically, neither the witness testimony nor

                          17
any of the forensic evidence introduced before the jury

established, beyond a reasonable doubt, that the Appellant

killed Martinez in the course of committing, or attempting

to commit, his kidnapping.

    The crime scene specialists and evidence technicians

collected a number of items, both at the crime scene and

the Appellant’s home, mechanic shop, and vehicles.

However, none of the items recovered – shotgun shell,

casing, zip ties, tire tracks, and empty gun holsters –

was connected to the Appellant or to the murder.     In fact,

the witnesses made clear that the evidence recovered could

not be in any way specifically attributed to the Appellant

or directly tie him to the murder.   (RR. Vol. 31, pp. 27 –

217).   Additionally, the State’s firearms expert

unequivocally testified that neither the casing nor

cartridges he examined matched the one found at the crime

scene, and that the weapon recovered by police, and which

he test-fired, was definitely not the murder weapon.    (RR.

Vol. 31, pp. 39 – 56).

    Even the State’s key witness, Jose Francisco

Rodriguez, who was the person the investigation determined

actually picked up Martinez and drove him over to, and

dropped him off with, the perpetrators at the mechanic

                          18
shop failed to identify in open court – by name or physical

description – the Appellant.     In fact, when specifically

asked by the State on direct examination if the person(s)

who had requested that he (Rodriguez) take Martinez to the

shop were present in the courtroom, he neither identified

or acknowledged the Appellant.    (RR. Vol. 31, pp. 250 –

251).

    The State’s entire case was predicated exclusively on

the Appellant’s three statements given to the

investigators. (RR. Vol. 32`, pp. 56 – 276)(See also, SX

148, SX 149, and SX 151).    There was a total absence of

physical, testimonial, or forensic evidence to tie the

Appellant to the capital murder of Martinez.

    In fact, when Appellant’s counsel pointedly asked Vic

De Leon, the main investigator in the case, what evidence

he had that Appellant had actively participated in

Martinez’s kidnapping and murder, he candidly stated that

there was nothing “other than what Robert (Appellant) was

telling me.”   (RR. Vol. 32, p. 269, line 20).    He also

reiterated that none of the physical or forensic evidence

found at the crime scene and at the Appellant’s home,

mechanic shop, and vehicles connected, or even implicated,

him in the kidnapping / murder of Martinez.      (RR. Vol. 32,

                            19
pp. 250 – 256). When further pressed about the basis for

the issuance of the arrest warrant, Investigator De Leon,

again, stated without hesitation or reservation, that it

was “his (Appellant’s) confession.” (RR. Vol. 32, p. 259).

    Although the Appellant was charged as a principal with

Martinez’s death, the case also was submitted to the jury

under the law of parties.     Sect. 7.02, Texas Penal Code.

    Nonetheless, the State was unable to prove Appellant’s

guilt under either theory.

    Certainly, there was legally insufficient evidence to

establish, beyond a reasonable doubt, that Appellant,

alone, acting as a principal, kidnapped and murdered

Martinez.   So too, the State had legally insufficient

evidence to make Appellant criminally responsible for

Martinez’s death under the law of parties.     There was

no evidence to show that, acting with the intent to assist

the commission of the crime, the Appellant solicited,

encouraged, directed or aided Pepe to commit the

kidnapping and murder involved here.

    In order to hold Appellant criminally responsible

under the law of parties for the capital murder, the State

had to provide some evidence of a common scheme or

understanding to commit the crime.     Gross v. State, 380

                         20
S.W.3d 181 (Tex. Crim. App. 2012).

     While unquestionably the Appellant placed himself at

the scene of the crime by virtue of his statements to the

police, mere presence at the crime scene will not be

sufficient to convict a person of a crime under the law of

parties.   In order to hold a person responsible for the

conduct of another, the evidence must show that, at the

time of the offense, the parties were acting together in

concert for a common purpose, with each contributing some

part towards the execution of the crime – here, the

kidnapping and murder of Martinez.

     For example, in Adames v. State, 353 S.W.3d 854 (Tex.

Crim. App. 2011), the Appellant was found guilty of capital

murder under the law of parties.   In that case, however,

the Appellant actively participated in the kidnapping and

murder of the victim.   He knew, at the time he was told to

inject the victim with heroin, that it was for the specific

purpose of causing her death.   Then, with full knowledge of

of her impending death, Appellant, along with the other co-

defendants, placed her in a vehicle, drove her to a remote

area, and dumped her body.

     Similarly, in Ervin v. State, 333 S.W.3d 187 (Tex.

App. – Houston [1st Dist.] 2010), the jury likewise found

                          21
the Appellant guilty of capital murder.    But, again, like

the Appellant in Adames, supra, Appellant actively

participated with her co-defendants, from beginning to end.

The Appellant, with full appreciation and knowledge that

her co-conspirators were going to rob and kill the victim,

she drove them to the carwash where the victim was located.

There, she dropped them off as they stepped out with loaded

weapons and donned masks and hoodies to conceal their

identities. She waited down the street while they committed

the crime.    Upon hearing the gunshots, she then drove to

the carwash, pick them up, and took them over to one of the

co-conspirator’s house.

    As can be gleaned from these cases, and other

authorities cited therein, the level of participation and

knowledge required for a conviction under the law of

parties is one of an active, knowing, engaging, and ongoing

role, a far cry from the one involved in this particular

case.

    The facts in this particular instance did not involve

the requisite knowledge or participation to hold Appellant

criminally responsible for Martinez’s death under the law

of parties.

    While placing the zip ties around Martinez’s hands

                             22
restrained his hands, it by no means restrained his

movements.   Unlike the facts in Adames, supra, where the

Appellant injected the victim with heroin with the intent

to kill her, it was clear, from the surrounding

circumstances, that the reason Pepe wanted Martinez’s

hands immobilized was to prevent Martinez from engaging in

a physical confrontation with him, since as soon as

Appellant put on the ties, Pepe began beating Martinez.

    It is inconceivable that Appellant could have

reasonably anticipated that Pepe would then kidnap

Martinez.

    As the events were unfolding, the Appellant’s

reasonable belief for the purpose of taking Martinez for

a ride in the truck was so that he could tell Pepe where

Paco and the other man (both of whom had helped him

steal the marijuana) lived.   It was not until Pepe drove

to a remote, grassy area that he then realized Pepe was

not content with just finding out where the men lived;

he wanted to kill Martinez.

    Appellant never actively participated, encouraged,

aided, or abetted Pepe in any way to either kidnap and

murder Martinez. Concededly, while he was present during

the entire encounter between Pepe and Martinez, his

                        23
presence was without full appreciation of what Pepe was

contemplating on doing to Martinez.

     Unlike the cited cases, then, the evidence introduced

at Appellant’s trial failed to establish that Appellant

encouraged the commission of the offense by acts, words, or

agreement.    Wooden v. State, 101 S.W.3d 542 (Tex. App. –

Ft. Worth 2003); Ervin v. State, 333 S.W.3d 151 (Tex. App.

– Houston [1st Dist.] 2010).

     A rational jury could not have determined from the

state of the evidence that the Appellant, acting with the

intent to promote or assist Pepe, either solicited,

encouraged, directed, aided or abetted him in committing

the murder while in the course of committing the offense

of kidnapping.   Herrin v. State, 125 S.W.3d 436 (Tex. Crim.

App. 2002).

     The testimonial facts adduced at trial, together with

the corresponding forensic and physical evidence collected

at the crime scene, and Appellant’s home, business, and

vehicles, including the Appellant’s statements, failed to

establish, beyond a reasonable doubt that Appellant

intentionally or knowingly – and with the requisite

specific intent – caused the death of David Martinez,

either as a principal or party.

                           24
    Accordingly, examining all of the pertinent evidence

in the light most favorable to the verdict, it is evidently

clear that no rational trier of fact could have found all

of the essential elements of the offense of capital murder

beyond a reasonable doubt.

    Therefore, the Appellant requests that the court

sustain this point of error, and reverse the jury verdict

in this cause with respect to the charge of the capital

murder.

                       CONCLUSION

    Appellant demonstrated that he invoked his right to

counsel prior to being questioned by the investigators, and

that all three statements were obtained in violation of his

right to counsel. In that regard, then, the trial court

abused its discretion in failing to grant Appellant’s pre-t

trial motion to suppress.

    Additionally, Appellant has established that the

evidence adduced at his trial was legally insufficient to

support the jury’s guilty verdict for the offense of

capital murder, because the State failed to prove that

Appellant intentionally, knowingly, and with the specific

intent, caused the death of Martinez in the course of

committing his kidnapping.

                            25
                        PRAYER

    Therefore, in light of the foregoing facts, arguments,

and legal authorities, the Appellant respectfully requests

that the court reverse the jury’s guilty verdict and remand

the case for a new trial if it sustains Point of Error

Number One.   Alternatively, and without waiving the

foregoing arguments in Point of Error Number One, if the

court sustains Point of Error Number Two, then the

Appellant requests that the court vacate the jury’s guilty

Verdict, enter a judgment of acquittal, and discharge the

Appellant.

                                   Respectfully Submitted,

                                   Alfredo Morales, Jr.
                                   Attorney at Law
                                   P. O. Box 52942
                                   McAllen, TX 78505
                                   (956) 536-8800 TEL
                                   (956) 381-4269 FAX
                                   EMAIL: amjr700@gmail.com


                                  /S/ Alfredo Morales, Jr.
                                   _______________________
                                    ALFREDO MORALES, JR.
                                   STATE BAR NO. 14417290




                         26
                   CERTIFICATE OF SERVICE

    I, Alfredo Morales, Jr., hereby certify that a true

and correct copy of the foregoing Appellant’s Brief was

hand-delivered to the Hon. Glenn Devino, ADA, appellate

counsel for the State, at the Hidalgo County Courthouse,

100 N. Closner, Edinburg, TX   78539, on this the 26th day

Of August, 2015.


                                  /S/ Alfredo Morales, Jr.
                                  _______________________
                                    ALFREDO MORALES, JR.


               CERTIFICATE OF COMPLIANCE

    In accordance with Rule 9.4(i)(3) of the Amended Rules

of Appellate Procedure, I, Alfredo Morales, Jr., counsel of

record for Appellant, hereby certify that, relying on the

word count of the computer program used to prepare

Appellant’s Brief herein, the brief contains 6,807 words.

                                 /S/ Alfredo Morales, Jr.
                                  ________________________
                                    ALFREDO MORALES, JR.




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