                                                                    PD-1661-14
                                                   COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                 Transmitted 1/27/2015 9:52:34 AM
                                                   Accepted 1/29/2015 2:12:15 PM
                      CAUSE NO. PD-1661-14                           ABEL ACOSTA
                                                                             CLERK

              IN THE COURT OF CRIMINAL APPEALS
                           FOR THE
                       STATE OF TEXAS

          MARCO POLO MEDINA-GONZALEZ, APPELLANT

                               V.

                    STATE OF TEXAS, APPELLEE


             PETITION FOR DISCRETIONARY REVIEW
           FROM THE 54th JUDICIAL DISTRICT COURT
                   MCLENNAN COUNTY, TEXAS
           TRIAL COURT CASE NUMBER 2012-2077-D2
            HON. MATT JOHNSON, JUDGE PRESIDING

 AND IN THE TENTH COURT OF APPEALS FOR THE STATE OF
                        TEXAS
         APPELLATE CAUSE NUMBER 10-13-394-CR



    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


                    DENTON “Denny” B. LESSMAN
                        TX BAR NO. 24042474
                   100 N. 6TH STREET, STE. 702
                          WACO, TX, 76701
                     TELEPHONE: (254)776-4544
                     FACSIMILE: (254)776-4551
                   EMAIL DLESSMANATTY@AOL.COM
                      ATTORNEY FOR APPELLANT



January 29, 2015
              IDENTITY OF PARTIES AND COUNSEL

  MARCO POLO MEDINA-GONZALEZ APPELLANT

  STATE OF TEXAS                    APPELLEE

  DENTON B. LESSMAN                 APPELLATE & TRIAL ATTORNEY
  100 N. 6TH STREET,                FOR APPELLANT
  STE. 702
  WACO, TEXAS 76701

  ABELINO REYNA                     APPELLATE & TRIAL ATTORNEY
  501 WASHINGTON AVE.               FOR APPELLEE / CRIMINAL
  WACO, TEXAS 76701                 DISTRICT ATTORNEY FOR
                                    MCLENNAN COUNTY, TEXAS


                      TABLE OF CONTENTS

Contents

IDENTITY OF PARTIES AND COUNSEL................................ 2

TABLE OF CONTENTS.............................................. 2

TABLE OF AUTHORITIES........................................... 3

STATEMENT REGARDING ORAL ARGUMENT.............................. 3

STATEMENT OF THE CASE.......................................... 3

QUESTION PRESENTED FOR REVIEW.................................. 5

REASONS FOR GRANTING REVIEW.................................... 5

ARGUMENT....................................................... 5

PRAYER......................................................... 9

                                2
CERTIFICATE OF COMPLIANCE..................................... 10

APPENDIX...................................................... 11




                       TABLE OF AUTHORITIES

Cases

Apodaca v. State, 589 S.W.2d 696 (Tex. Crim. App. 1979)
 ..................................................... 6
Dodd v. State, 2004 WL 1311220 at 3 (Tex. App.—
 Texarkana 2004, no pet.)............................. 8
Jaycon v. State, 651 S.W.2d 803 (Tex. Crim. App. 1983,
 en banc.)......................................... 5, 6
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
 2007)................................................ 6
                STATEMENT REGARDING ORAL ARGUMENT

      The      Appellant,        Marco          Polo       Medina-Gonzalez,

respectfully requests the opportunity to present oral

argument on this case and believes that oral argument

will assist the Court in evaluating the merits of his

issue.

                       STATEMENT OF THE CASE

      This     case   is   an    appeal         from   a    jury   trial   in

the     54TH   District     Court          of    McLennan     County.      The

Appellant,        Marco         Polo        Medina-Gonzalez         (herein
                                       3
“Medina”),      was      indicted for Aggravated Kidnapping,

Ct.     1;   Aggravated          Robbery,     Ct.       2;    and    Evading

Arrest       or Detention         with Motor        Vehicle,          Ct. 3,

on    October    31,     2012.    (C.R.    I-5)     A    jury       trial   was

conducted on October 28, 2013 through October 30, 2013.

Medina entered a plea of “guilty” to count 3 and

the jury returned a verdict of guilty on counts 1 &

2.    The    jury      assessed     punishment          at    80    years   on

counts 1 & 2 and 10 years on count 3.

      One issue was presented on appeal to the Honorable

Tenth    Court      of    Appeals    and     the    Intermediate        Court

overruled said issue and affirmed Medina’s conviction.

      Medina     now      seeks     review     of       the    Intermediate

Appellate Court’s overruling of his presented issue.

                 STATEMENT OF PROCEDURAL HISTORY

      The Tenth Court of Appeals issued its opinion on

November 20, 2014 and an extension was granted by this

Honorable Court until January 21, 2015 for Medina to

file this petition. No motion for rehearing was filed.



                                      4
              QUESTION PRESENTED FOR REVIEW

    The Tenth Court of Appeals erred in holding that

the jury charge application paragraph correctly charged

Medina both as a party and primary actor.

               REASONS FOR GRANTING REVIEW

    Medina argues the Tenth Court of Appeals decided an

important question of law in a way that conflicts with

the applicable decisions from this Honorable Court and

that this case presents a unique opportunity for this

Honorable Court to consider an important question of

state law.

                          ARGUMENT

    The   Intermediate   Appellate   Court   has   incorrectly

overruled Medina’s issue that the Trial Court erred by

charging him both as a primary actor and party when the

evidence only supported charging Medina as a party.

    Medina primarily relied upon this Honorable Court’s

holding in Jaycon v. State, 651 S.W.2d 803 (Tex. Crim.

App. 1983, en banc.) to support his issue. In Jaycon,

this Court gave an in depth discussion regarding the

                             5
requirements     of    charging   the     law      of   parties     to   the

facts of the case. If the evidence that another did the

act   charged    and   the   defendant’s           culpability      depends

upon proof of one of the four theories of parties’

culpability set for the in Penal Code Section 7.02, the

jury should not be permitted to consider whether the

defendant is guilty as a principle actor. Jaycon at 807

discussing Apodaca v. State, 589 S.W.2d 696 (Tex. Crim.

App. 1979).

      The Intermediate Court held that Jaycon does not

apply to this case because Jaycon was only charged as a

primary actor to the offense and Medina was charged

both as a primary actor and as a party.

      Medina asserts that the Intermediate Court clearly

erred in its holding.

      In a trial, the guilty finding must be based upon

the   evidence    admitted     in       the    case     and   reasonable

inferences    therefrom.     Williams         v.    State,    235    S.W.3d

742, 750 (Tex. Crim. App. 2007).



                                    6
    The Intermediate Court found that there was some

evidence that Medina was a primary actor: Specifically,

it stated:

  1. “Valdez testified that he thought the assailant

     with     the     rifle   was      Medina.    That           particular

     assailant held Valdez at gun point and forced him

     out of his car and then beat Valdez when he was

     told to open the safe and replied that he did not

     know the combination.”

  2. “Medina had been an assistant manager and knew

     where the alarm was and where the cash office

     was.”

  3. “When Medina was apprehended later, although he

     was     not    dressed   in   camouflage,        he    had     numbers

     consistent with a combination in his wallet.”

    The three findings of the Intermediate Court are

clearly     and     completely     contrary      to        the     evidence

admitted at trial and are not a reasonable inference

therefrom.



                                   7
       Specifically,      it    was    conclusively         established    at

trial that Medina was the driver of the getaway vehicle

and    was   not    one   of    the     actors      in    camouflage     that

engaged with Valdez            in the aggravated kidnapping or

went    into    the    grocery        store       where   the    aggravated

robbery occurred. Exhibit #21(the police in car video)

and the testimony of Officer Malone clearly establish

this fact. (R.R. vol. 3, pgs. 71, 73-79).

       Therefore, the speculation of Valdez in finding 1

above    was    completely          refuted   by     this    evidence     and

findings 2 and 3 above completely fail to establish the

required       elements        of      aggravated         kidnapping       or

aggravated      robbery.       To    establish      Medina’s     guilt    the

State    must      clearly      rely       upon    the    acts   of    other

individuals.

       In contrast, Texas courts have held that a getaway

driver can be responsible as a party. [See Dodd v.

State, 2004 WL 1311220 at 3 (Tex. App.—Texarkana 2004,

no pet.) for an excellent discussion on this point.]



                                       8
    The holding of the Intermediate Court of Appeals

establishes a dangerous precedent that is contrary to

the law pronounced by this Court and has resulted in a

miscarriage of justice in this case and will continue

to do so into the future.

                        PRAYER

    WHERFORE PREMISES CONSIDERED Medina prays that this

Honorable Court will grant this petition and allow the

issue to be completely presented to the Court. Medina

further prays that after said presentation that the

Court will sustain the issue raised herein, reverse the

Judgment of the Honorable Tenth Court of Appeals and

remand this case to the Trial Court for a new trial.

                            Respectfully Submitted,

                            Law Office of Denton B.
                            Lessman
                            100 N. 6th Street, Ste. 702
                            Waco, Texas 76701
                            Tel: (254) 776-4544
                            Fax: (254) 776-4551

                            By: /s/ Denton Lessman
                                Denton B. Lessman
                                TX Bar No. 24042474
                                Attorney for Medina

                             9
                          CERTICATE OF SERVICE

    I hereby certify that a copy of Medina’ Brief was

served     on     the    State   Prosecuting    Attorney   and   the

Criminal        District    Attorney    of   McLennan   County   via

email.



                                      /s/ Denton Lessman
                                  Denton B. Lessman

                        CERTIFICATE OF COMPLIANCE

    I hereby certify in accordance with Rule 9.4(i)(3)

that this entire document, including those excludable

under Rule 9.4(i)(1), has a total of 1274 words and

that this documents was produced using Microsoft Word

2010.



                                      /s/ Denton Lessman
                                  Denton B. Lessman




                                   10
APPENDIX




   11
                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00394-CR

MARCO POLO MEDINA-GONZALEZ,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                         From the 54th District Court
                          McLennan County, Texas
                         Trial Court No. 2012-2077-C2


                         MEMORANDUM OPINION


      Marco Polo Medina-Gonzalez, Medina as he is referred to by his trial and

appellate counsel, was convicted by a jury of the offenses of Aggravated Kidnapping,

and Aggravated Robbery. TEX. PENAL CODE ANN. §§ 20.04; 29.03 (West 2011). He pled

guilty to an additional charge of Evading Detention. TEX. PENAL CODE ANN. § 38.04

(West 2011). Medina was sentenced to 80 years in prison for aggravated kidnapping, 80

years in prison for aggravated robbery, and 10 years in prison for evading detention.
Because the trial court did not err in its charge to the jury, we affirm the trial court’s

judgments as to Count I and Count II.1

BACKGROUND

          Jose Ruben Valdez was closing the grocery store one night where he was an

assistant manager. At a stop light on his way home, a vehicle stopped within inches of

the back of Valdez’s car. At the next stop light, the vehicle lightly bumped Valdez’s car

and then swerved around Valdez and came to a stop in front of Valdez. Two men in

camouflage and masks exited the front and back passenger side of the vehicle. One,

with a rifle, stuck the rifle in Valdez’s face and ordered him out of the vehicle. That

assailant grabbed Valdez by the hair, pulled him out of his car, and shoved him in the

back seat. That assailant then got in the driver’s seat of Valdez’s car. The other

assailant got in the back seat with Valdez and beat him in the head with a hand gun.

           The group drove around for what seemed to be a long time and stopped at the

grocery store where Valdez worked. He was removed from the car and told to unlock

the store. Once the keys were retrieved from the car, Valdez opened the store and was

guided to the alarm system to turn it off. He was then guided to the cash office and told

to open the safe. When Valdez replied that he did not remember the combination, the

assailant with the rifle started beating Valdez with the rifle.             The other assailant




1   Medina does not challenge the trial court’s judgment as to Count III.

Medina v. State                                                                          Page 2
appeared and the scuffle subsequently stopped when the two suddenly looked up and

then fled.

CHARGE ERROR

       Medina argues in his sole issue that the trial court erred in charging him both as

a party and as a primary actor for the offenses of aggravated kidnapping and

aggravated robbery. It appears his complaint is that because the evidence supported a

charge that Medina acted as a party but not as a principal because he contends he was

only the driver, the charge was erroneous. As his sole support for his argument,

Medina relies on the Court of Criminal Appeals opinion in Jaycon v. State. Jaycon v.

State, 651 S.W.2d 803 (Tex. Crim. App. 1983). However, Jaycon does not stand for the

proposition Medina asserts. In Jaycon, the defendant was charged only as a primary

actor to a murder. The Court of Criminal Appeals held the charge was erroneous

because there was no evidence that Jaycon was the primary actor. Id. at 808. Here,

Medina was charged both as a primary actor and as a party. Thus, the holding in Jaycon

does not apply to this case.

       Further, a trial court is required to fully instruct the jury on the law applicable to

the case and to apply that law to the facts presented. Gray v. State, 152 S.W.3d 125, 127

(Tex. Crim. App. 2004). In this case, there is some evidence that Medina was a primary

actor. Valdez testified that he thought the assailant with the rifle was Medina. That

particular assailant held Valdez at gun point and forced him out of his car and then beat


Medina v. State                                                                        Page 3
Valdez when he was told to open the safe and replied that he did not know the

combination. Medina had been an assistant manager and knew where the alarm was

and where the cash office was. When Medina was apprehended later, although he was

not dressed in camouflage, he had numbers consistent with a combination in his wallet.

       Accordingly, the trial court did not err in charging Medina as a primary actor

and as a party to the offense. Medina’s sole issue is overruled.

       The trial court’s judgments as to Count I and Count II are affirmed.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 20, 2014
Do not publish
[CRPM]




Medina v. State                                                                  Page 4
