                                                                         ACCEPTED
                                                                      13-14-00530-cr
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                7/8/2015 10:36:01 PM
                                                              CECILE FOY GSANGER
                                                                              CLERK

             NO. 13-14-00530-CR

                   IN THE
                                              FILED IN
                                      13th COURT OF APPEALS
         COURT OF APPEALS FOR THE CORPUS CHRISTI/EDINBURG, TEXAS
                                       7/8/2015 10:36:01 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 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

following listed persons 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 the existence of any reason which would require

his/her disqualification or recusal from the case at bar.

    A. Parties

        Appellant:               Pedro Cantu Villalobos

        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 - iv

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

APPELLANT’S SOLE POINT OF ERROR . . . . . . . . . . . . 2

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

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

ARGUMENT UNDER SOLE POINT OF ERROR . . . . . . . . 3 - 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . 13 - 14

PRAYER . . . . . . . . . . . . . . . . . . . . . . .   14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . 15

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 15




                         ii
               INDEX OF AUTHORITIES

                     STATUTES

Texas Penal Code

    Section 6.03(a) . . . . . . . . . . . . . . . . 5

    Section 6.03(b) . . . . . . . . . . . . . . . . 6

    Section 7.02 . . . . . . . . . . . . . . . . . . 11

    Section 19.03(a)(2) . . . . . . . . . . . . . . . 5

                      CASES

United States Supreme Court

    Jackson v. Virginia, 116 S.Ct. 717 (1996) . . . . 4

Texas Court of Criminal Appeals

    Brooks v. State, 323 S.W.3d 895 (Tex. Crim.
    App. 2010) . . . . . . . . . . . . . . . . . . . . 4

    Burden v. State, 55 S.W.3d 608 (Tex. Crim.
    App. 2001) . . . . . . . . . . . . . . . . . . .     4

    Denton v. State, 911 S.W.2d 388 (Tex. Crim.
    App. 1995) . . . . . . . . . . . . . . . . . . . . 4

    Fuentes v. State, 991 S.W.2d 267 (Tex. Crim.
    App. 1999) . . . . . . . . . . . . . . . . . . . 5

    Gross v. State, 380 S.W.3d 181 (Tex. Crim.
    App. 2012) . . . . . . . . . . . . . . . . . . . 12

    Haggins v. State, 785 S.W.2d 827 (Tex. Crim.
    App. 1990) . . . . . . . . . . . . . . . . . . . 6

    Malik v. State, 953 S.W.2d 234 (Tex. Crim.
    App. 1997) . . . . . . . . . . . . . . . . . . 4

    McDuff v. State, 939 S.W.2d 607 (Tex. Crim.
    App. 1997) . . . . . . . . . . . . . . . . . . 5

                              iii
   Patrick v. State, 906 S.w.2d 248 (Tex. Crim.
   App. 1995). . . . . . . . . . . . . . . . . . 6

   Rodriguez v. State, 146 S.W.3d 674 (Tex. Crim.
   App. 2004) . . . . . . . . . . . . . . . . . . 6

   Salazar v. State, 86 S.W.3d 640 (Tex. Crim.
   App. 2002) . . . . . . . . . . . . . . . . . . . 7

   Turner v. State, 805 S.W.2d 423 (Tex. Crim.
   App. 1991) . . . . . . . . . . . . . . . . . . 6

   Turro v. State, 867 S.W.2d 43 (Tex. Crim. App.
   1993) . . . . . . . . . . . . . . . . . . . . . 5


Texas Courts of Appeals

   Delgado v. State, 840 S.W.2d 594 (Tex. App. –
   Corpus Christi 1992) . . . . . . . . . . . . . . 7

   Erivin v. State, 333 S.W.3d 151 (Tex. App. – Houston
   [1st Dist.] 2010) . . . . . . . . . . . . . . . . . 13

   Montgomery v. State, 198 S.W.3d 67 (Tex. App. – Ft.
   Worth 2006) . . . . . . . . . . . . . . . . . . . . 8

   Murray v. State, 24 S.W.3d 881 (Tex. App. – Waco
   2000) . . . . . . . . . . . . . . . . . . . . . . 4

   Wooden v. State, 101 S.W.3d 542 (Tex. App. – Ft.
   Worth 2003) . . . . . . . . . . . . . . . . . . . 13




                          iv
                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)

    After the State presented its evidence, the jury found

the 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 filed his notice of appeal with the

trial court.




                             1
           APPELLANT’S SOLE POINT OF ERROR


APPELLANT’S SOLE POINT OF ERROR:

    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.   The initial

investigation revealed the possibility of several “persons

of interest,” including the Appellant.

    While police officers were executing a search warrant

at Appellant’s house for possible evidence relating to the

body discovered in the open field (but unbeknownst to

Appellant), Appellant was arriving at his house.     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 in an

unrelated drug case) and asked for his advice.     His lawyer,

believing the presence of police was related to his drug


                             2
case, advised him to stop and return to the residence.

       Appellant promptly returned to his residence, but was

told he could not go in.    He was then detained 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 the person, later identified to be the

body found in the open field, was killed.    (RR. Vols. 31 –

32).

                   SUMMARY OF THE ARGUMENT

       The evidence introduced at the Appellant’s trial was

legally insufficient to prove all of the elements of the

offense of capital murder beyond a reasonable doubt.

                APPELLANT’S SOLE POINT OF ERROR

 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

to prove beyond a reasonable doubt that, on the date

alleged by the State in the indictment, he intentionally

and knowingly caused the death of David Alejandro Martinez.

       In reviewing the legal sufficiency of the evidence,


                             3
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

review 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).   The evidence 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’

                           4
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 may

not overturn a jury’s verdict, but 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 specified date,

intentionally and knowingly caused the death of another in

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


                            5
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).

    Moreover, 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 also prove that the

accused not only intended to engage in in the act that

caused the death, but 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

mental state criminalized is the state of mind that

contemplates the 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, on or about , intentionally or

knowingly caused the death of David Alejandro Martinez.

    As the record on appeal demonstrates, the State’s

witnesses, together physical and forensic evidence

                            6
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, the Appellant readily acknowledges that he gave

three detailed statements to the police regarding the

events leading up to that fateful day.   But it is well

settled law that a person may not be convicted upon his

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, 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 then accompanying them to the

                          7
open filed where Villarreal 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

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 travelling

in the pickup truck (as a passenger) 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


                            8
coupled with the Appellant’s statements to the police,

clearly supports his contention that he did not engage in

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

knowledge as contemplated by the 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 principle or party.

    More specifically, none of the witnesses nor 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.   In fact, the witnesses

made clear that the evidence recovered could not be

in any way attributed to the Appellant, much less tie him


                          9
to the murder.   (RR. Vol. 31, pp. 27 – 217).    Moreover, the

State’s expert firearms expert unequivocally testified that

neither the casing nor cartridges he examined matched the

one found at the crime scene, and that the weapon 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

was the person who actually picked up Martinez and drove

him over to, and dropped him off with, the perpetrators

failed to identify – 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) bring them Martinez were present in the

courtroom, he did not identify the Appellant.    (RR. Vol.

31, pp. 242 – 262).

    The State’s entire case was predicated exclusively on

the Appellant’s three statements given to the investigators

after he was arrested.   (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 Villarreal.

    In fact, when Appellant’s counsel pointedly asked Vic

                           10
De Leon, the main investigator in the case, what evidence

he had that Appellant had actively participated in the

demise of Martinez, 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, pp. 250 –

256). When asked about the basis for the issuance of the

arrest warrant, Investigator De Leon, again, stated without

hesitation or reservation – “his (Appellant’s) confession.”

(RR. Vol. 32, p. 259).

       Although the Appellant was charged as a principle with

the death of Villarreal, the case was submitted to the jury

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

       Nonetheless, there was legally insufficient evidence

to find the Appellant guilty of capital murder, under

either theory.

       Certainly, there was legally insufficient evidence to

establish, beyond a reasonable doubt, that Appellant,

alone, acting as a principle, kidnapped and murdered

Martinez.   Even under the theory of the law of parties,

                             11
the State had legally insufficient evidence to make

Appellant criminally responsible for Martinez’s death.

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 another person to

commit the kidnapping and murder involved here.

    In order to hold him criminally responsible under the

law of parties for this capital murder, the State had to

provide some evidence of a common scheme or understanding

to commit a crime.    Gross v. State, 380 S.W.3d 181 (Tex.

Crim. App. 2012).

    While undoubtedly the Appellant placed himself at the

scene of the crime by virtue of his statements to the

police, mere presence, alone, 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.    However, the evidence introduced at

Appellant’s trial failed to establish that Appellant

encouraged the commission of the offense by acts, words,

                            12
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).

     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, failed to establish, beyond a reasonable doubt

that Appellant intentionally or knowingly – and certainly

with the requisite specific intent – caused the death of

David Martinez.

     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, reverse the jury verdict in

this cause with respect to the charge of the capital

murder.

                        CONCLUSION

     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

                             13
the State failed to prove that Appellant intentionally,

knowingly, and with the specific intent, caused the death

of Martinez.

                        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 of capital

murder, 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

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




                         14
               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. Ted Hake, chief appellate

counsel for the State, at the Hidalgo County Courthouse,

100 N. Closner, Edinburg, TX   78539, on this the 8th day of

July, 2014.

                                  /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, effective December 1, 2012, 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 3,668 words.

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




                        15
