                                                                              PD-0576-15
                    PD-0576-15                               COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 5/12/2015 10:32:17 AM
                                                              Accepted 5/12/2015 4:09:49 PM
                                                                              ABEL ACOSTA
               NO. _____________________________                                      CLERK

                              In The
                    Court of Criminal Appeals
                      Of The State of Texas
                          Austin, Texas

          _____________________________________
             STANLEY WAYNE ROBERTSON,
                          Petitioner

                                vs.

                     THE STATE OF TEXAS,

          _____________________________________
                        PETITION
                          FOR
                DISCRETIONARY REVIEW
          _____________________________________

             Petition in Cause No. 10-04337-CRF-85
       from the 85th District Court of Brazos County, Texas,
                 And Cause No. 10-13-00105-CR
          Court of Appeals for the Tenth District of Texas
          _____________________________________

                                      GERALD E. BOURQUE
                                      Appointed Counsel for Petitioner
                                      Attorney at Law
                                      24 Waterway Ave., Suite 660
                                      The Woodlands, TX 77380
                                      PHONE: (281) 379-6901
May 12, 2015
                                      Fax: (832) 813-0321
                                      TBL #02716500

                                      May 12, 2015
                   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. These representations are made in

order that the Judges of this Court may evaluate possible disqualification or

recusal.

(a.)   Stanley Wayne Robertson, appellant

(b.)   John Edward Wright, P.O. Box 6547, Huntsville, TX, 77342 and Frank
       Blazek, 1414 11th Street, Huntsville, TX 77340, counsel for appellant at trial

( c.) Gerald E. Bourque, 24 Waterway Ave., Suite 660, The Woodlands, TX,
      77380, counsel for appellant on appeal

(d.)   The State of Texas represented by Jarvis Parsons and Brian Price, Office of
       the District Attorney, 300 East 26th Street, Suite 310, Bryan, TX, 77803,
       counsel for the State

(e.)   Hon. J.D. Langley, Judge Presiding



                                              /s/ Gerald E. Bourque
                                              GERALD E. BOURQUE
                                              Attorney of Record for Appellant
i
                                         TABLE OF CONTENTS



        Page

IDENTITY OF PARTIES...........................................................................................i

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

INDEX OF AUTHORITIES....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT.................................................1

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

STATEMENT OF THE PROCEDURAL HISTORY................................................3

GROUNDS FOR REVIEW.......................................................................................4

ARGUMENTS..........................................................................................................5

        GROUND FOR REVIEW NO. ONE: The Court of Appeals erred in
        holding the evidence to be legally sufficient to sustain the guilty
        verdict..............................................................................................................

        GROUND FOR REVIEW NO. TWO: The Court of Appeals erred
        in affirming the trial court’s denial of petitioner’s motion for
        instructed verdict.............................................................................................

        GROUND FOR REVIEW NO. THREE: The Court of Appeals
        erred in holding that there was no fatal variance between the allegata
        and the probata..............................................................................................

        GROUND FOR REVIEW NO. FOUR: The Court of Appeals erred
        in affirming the trial court’s overruling of petitioner’s objections to the
        jury charge.....................................................................................................
        GROUND FOR REVIEW NO. FIVE: The Court of Appeals erred
        in affirming the trial court’s admission into evidence multiple autopsy
        photographs over petitioner’s objection........................................................
                                          ii

PRAYER FOR RELIEF..........................................................................................22

CERTIFICATE OF SERVICE.................................................................................23

CERTIFICATE OF COMPLIANCE.......................................................................23
iii
                               INDEX OF AUTHORITIES

                                                                                        Page

CASES

Bell v. State, 693 S.W. 2d 434 (Tex. Crim. App. 1985)...........................................15

Burks v. United States, 437 U.S. 1, 98 S.Ct 2141, 57 L.Ed.2d 1 (1978).................10

Canales v. State, 98 S.W. 3d 690 (Tex. Crim. App. 2003)......................................10

Dewberry v. State, 4 S.W. 3d 735 (Tex. Crim. App. 1999)........................................5

Drichas v. State, 175 S.W. 3d 795 (Tex. Crim. App. 2005).......................................5

Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim. App. 2001)....................................14, 15

Gollihar v. State, 46 S.W. 3d 243 (Tex. Crim. App. 2001)................................11, 13

Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)...................10

Hall v. State, 619 S.W. 2d 156 (Tex. Crim. App. 1980)...........................................11

Herrin v. State, 125 S.W. 3d 436 (Tex. Crim. App. 2002).................................7, 8, 9

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)............5

Long v. State, 823 S.W. 2d 259 (Tex. Crim. App. 1991).........................................19

Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997)..........................................5

Mason v. State, 905 S.W. 2d 570 (Tex. Crim. App. 1995).........................................8

Moreno v. State, 755 S.W. 2d 866 (Tex. Crim. App. 1988)......................................5

Narvaiz v. State, 840 S.W. 2d 415 (Tex. Crim. App. 1992).....................................11

                                               iv
Rose v. State, 1 Tex. App. 400 (1876)......................................................................11

Rousseau v. State, 855 S.W. 2d 666 (Tex. Crim. App. 1993)..................................14

Santellan v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997)..................................19

Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 72 L. Ed. 2d 652 (1982).................11

Torres v. State, 71 S.W. 3d 758 (Tex. Crim. App. 2002).........................................18

STATUTE

Rule 403, Tex. R. Evid.......................................................................................19, 20




                                                        v
              STATEMENT REGARDING ORAL ARGUMENT

      The grounds for review set forth in this petition concern the conflicting

opinions of different appellate courts on the same point of law, conflicts with this

decision and the U.S. Supreme Court decisions, and the misinterpretation of the

factual bases of petitioner's complaints by the Court of Appeals are adequately

addressed without the necessity of oral argument.




                                         9
                                     In The

                            Court of Criminal Appeals

                              Of The State of Texas

                                  Austin, Texas

                  _____________________________________

                      STANLEY WAYNE ROBERTSON,
                                Petitioner

                                       vs.

                            THE STATE OF TEXAS,

                  _____________________________________

                               PETITION
                                  FOR
                         DISCRETIONARY REVIEW

                  _____________________________________



      COMES NOW, STANLEY WAYNE ROBERTSON, petitioner herein, and

petitions this Court to review the judgment affirming his conviction for capital

murder in cause no. 10-13-00105-CR, in the Tenth Court of Appeals, trial court no.

10-04337-CRD-85 in the 85th District Court of Brazos County, Texas.




                                        10
                           STATEMENT OF THE CASE

        Petitioner was convicted of capital murder after a jury trial upon his plea of

not guilty. Petitioner was indicted by a Brazos County grand jury for the offense of

capital murder. (CR.-2). Trial was to a jury. (R.R. XXXIV-19, et seq.). Following

the presentation of evidence, and following arguments of counsel and

deliberations, the jury found petitioner guilty of the offense of capital murder as

charged in the indictment.        (R.R. XXXVII-49).       After the presentation of

punishment evidence, and after further arguments of counsel and deliberations, the

jury answered special issue number one in the affirmative, special issue number

two in the negative, and special issue number three in the affirmative, resulting in

punishment being assessed at imprisonment for life without parole by operation of

law. (R.R. L-4-5). This conviction was affirmed by the Court of Appeals, Tenth

District, on April 16, 2015. A copy of said opinion is appended hereto as Appendix

A.

                  STATEMENT OF PROCEDURAL HISTORY

        The Court of Appeals rendered its opinion affirming the conviction on April

16, 2015. No motion for rehearing was filed and this petition is filed with the clerk

of the Court of Appeals within 30 days after the final ruling, to-wit: on May 15,

2015.


                                           11
                     GROUNDS FOR REVIEW

GROUND FOR REVIEW NO. ONE: The Court of Appeals erred in
holding the evidence to be legally sufficient to sustain the guilty
verdict.

GROUND FOR REVIEW NO. TWO: The Court of appeals erred in
affirming the trial court’s denial of petitioner’s motion for instructed
verdict.

GROUND FOR REVIEW NO. THREE: The Court of Appeals
erred in holding that there was no fatal variance between the allegata
and the probata.

GROUND FOR REVIEW NO. FOUR: The Court of Appeals erred
in affirming the trial court’s overruling of petitioner’s objections to the
jury charge.

GROUND FOR REVIEW NO. FIVE: The Court of Appeals erred
in affirming the trial court’s admission into evidence multiple autopsy
photographs over petitioner’s objection.




                                    12
                                   ARGUMENTS

      GROUND FOR REVIEW NOS. ONE and TWO:

      Petitioner raised the issue of the insufficiency of the evidence and the trial

court’s error in failing to grant a motion for instructed verdict of acquittal, however

the Court of Appeals erroneously rejected that argument. The Court of Appeals

correctly cited the applicable standard to review the legal sufficiency of the

evidence under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979).    See also Drichas v. State, 175 S.W. 3d 795 (Tex. Crim. App. 2005).

While appellate courts do not re-evaluate the evidence, nor substitute the court’s

judgment for that of the fact finder, they do overturn the verdict when it is

irrational or unsupported by more than a mere modicum of the evidence.

Dewberry v. State, 4 S.W. 3d 735 (Tex. Crim. App. 1999); Moreno v. State, 755

S.W. 2d 866 (Tex. Crim. App. 1988). Lastly, the legal sufficiency of the evidence

is measured by the elements as defined by a hypothetically correct jury charge.

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

      The jury charge in the cause sub judice charged as follows:

“Now, bearing in mind the foregoing instructions, if you find from the evidence

beyond a reasonable doubt that on or about August 13, 2010, in Brazos County,

Texas, the defendant, STANLEY ROBERTSON did intentionally cause the death

of an individual, namely, Annie Toliver, by stabbing or cutting her with a knife, and
the defendant was then and there in the course of committing or attempting to

commit the offense of Kidnapping of Annie Toliver, you will find the defendant

guilty of the offense of Capital Murder in the indictment.

       If you do not so find, or if you have a reasonable doubt thereof, you will find

the defendant not guilty of Capital Murder and next consider whether the

defendant is guilty of the lesser-included offense of Murder.” (R.R. XXXVII-14-

16).

Therefore, pursuant to the court’s charge, the only manner in which the jury could

find petitioner guilty of the offense of capital murder was to find that he caused the

complainant’s death while in the course of committing or attempting to commit

kidnapping. Fatal to the verdict, however, is the absence of any evidence of the

complainant’s death being caused in the course of committing kidnapping or

attempted kidnapping. Therefore, no rational trier of fact could have found all the

essential elements beyond a reasonable doubt.

       The critical question is whether the murder was committed in the course of

the kidnapping or attempted kidnapping, not the other way around. Herrin v. State,

125 S.W. 3d 436 (Tex. Crim. App. 2002). In other words, the critical question is

which occurred first, the murder or the kidnapping. If the murder occurred first,

then it was not done in the course of committing or attempting to commit

kidnapping. Herrin, supra. Therefore, if the murder occurred first, the evidence is
insufficient to sustain a conviction for capital murder. Herrin, supra.

        It is abundantly clear in the case at bar that the complainant accompanied

petitioner in his car voluntarily. (R.R.XXXIV-52-53). Nothing in the record

shows that the complainant’s movement was ever restricted by petitioner, nor

without her consent, prior to her being stabbed. The appellate court’s observation

that petitioner stabbed Toliver through her seatbelt and that could show sufficient

restraint to establish kidnapping defies logic. There is no evidence that petitioner

caused Toliver to be restrained by the seatbelt; in fact, Texas law requires the use of

seatbelts. Viewing the evidence in the light most favorable to the verdict, it was not

until after the complainant was stabbed that a kidnapping could arguably have

begun.1 The offense of kidnapping is complete when the person is restrained, and

evidence exists establishing the defendant intended to restrain the victim by either

secretion or the use or threat to use deadly force. Mason v. State, 905 S.W. 2d 570

(Tex. Crim. App. 1995).               As regards capital murder as alleged herein, the

kidnapping must precede the homicide. There is nothing to show that any alleged

kidnapping occurred before the complainant was stabbed. The homicide of the

complainant began at the time she was first stabbed. The “kidnapping” did not

occur until after the homicide had begun. Therefore, the murder did not occur in

the course of committing or attempting to commit kidnapping, the kidnapping or

         1Petitioner does not concede that a kidnapping actually occurred. This is only presented as argument
pursuant to the Jackson standard.
attempted kidnaping occurred in the course of committing murder. This is legally

insufficient to sustain the conviction for capital murder.

      The facts in the cause sub judice are astonishingly similar to those in Herrin,

supra, wherein the Court of Criminal Appeals found the evidence therein to be

legally insufficient to sustain a conviction for capital murder. In Herrin, the

defendant approached the complainant’s truck with a rifle in his hand, opened the

door, and shot the complainant in the chest.        The defendant then moved the

complainant’s body. In finding the evidence to be legally insufficient, the court

stated:

             “Appellant’s clear and un-diverted intent was to kill (the

             complainant). Nothing suggests that appellant was in the

             course of attempting a kidnapping when he shot (the

             complainant). Appellant did not shoot to merely disable

             or harm (the complainant) so that he could abduct him,

             but shot him at close range in the vital organs in an

             obvious effort to kill him. In light of appellant’s intent to

             murder (the complainant), appellant’s moving of (the

             complainant’s) body after the shooting did not amount to

             evidence that (the appellant) was in the course of

             kidnapping when the murder took place.” Herrin, supra.
      The facts are analogous to those in the case at bar. Petitioner did

not kidnap the complainant first, and then murder her. She went willingly

with him in his vehicle to Wal-Mart. She waited in his car in the parking

lot while petitioner and her son went into the store. It was not until after

petitioner returned to his vehicle that the homicide began. Blood was

found in the parking lot of Wal-Mart where Petitioner’s vehicle had been.

Therefore, it was after the homicide began that the complainant was

moved. “Appellant’s moving of the body after the shooting in which

appellant intended to kill the victim does not amount to a kidnapping or

attempted kidnapping.” Herrin, supra. Therefore, Petitioner’s moving

the complainant after he began to stab her does not amount to a

kidnapping or attempted kidnapping herein. The murder began before

any alleged kidnapping began. Therefore, petitioner did not murder the

complainant during the course of kidnapping nor attempting to kidnap the

complainant. As such, the evidence is legally insufficient to sustain the

conviction.

      At the close of the State’s case in chief, petitioner moved for an

instructed verdict of not guilty. (R.R. XXXVI-72). The trial court denied

petitioner’s motion. An appeal of the denial of a motion for an instructed

verdict is a challenge to the legal sufficiency of the evidence. Canales v.



                                     17
State, 98 S.W. 3d 690 (Tex. Crim. App. 2003). Because the state failed

to prove beyond a reasonable doubt petitioner caused the death of the

complainant in the course of committing kidnapping nor attempted

kidnapping as alleged, and because the jury was charged to find petitioner

guilty only if they found beyond a reasonable doubt that the homicide

was committed during the course of kidnapping or attempted kidnapping,

the evidence is legally insufficient to sustain the verdict. As such, the

trial court erred in denying petitioner’s motion for an instructed verdict.

The Court of Appeals erred in its analysis of the evidence in denying

relief on these issues. The evidence is insufficient to support the

conviction of capital murder warranting an acquittal. Burks v. United

States, 437 U.S. 1, 98 S.Ct 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey,

437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The Court of Appeals

was therefore in error by failing to reverse the conviction and enter a

judgment of acquittal. For these reasons, petitioner urges that this cause

be reversed and that a judgment of acquittal as to capital murder be

entered. Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 72 L. Ed. 2d 652

(1982); Narvaiz v. State, 840 S.W. 2d 415 (Tex. Crim. App. 1992).

      GROUND FOR REVIEW NO. THREE:

      The Court of Appeals likewise erred in failing to recognize the fatal



                                    18
variance between the allegations and the proof offered at trial. As pointed

out to the Court of Appeals, a variance occurs when there is a

discrepancy between the allegations in the charging instrument and the

proof at trial. In a variance situation, the State has proven the defendant

guilty of a crime, but has proven its commission in a manner that varies

from the allegations in the charging instrument.” Gollihar v. State, 46

S.W. 3d 243 (Tex. Crim. App. 2001).          This has been true in Texas

jurisprudence for well over 100 years. Rose v. State, 1 Tex. App. 400

(1876). A variance is material and fatal if it misleads a defendant to his

prejudice.   Hall v. State, 619 S.W. 2d 156 (Tex. Crim. App. 1980).

Petitioner was indicted for causing the death of the complainant by

“stabbing and cutting her with a knife . . . .” (R.R. XXXIV-18-19). The

jury was charged to find petitioner guilty if they found beyond a

reasonable doubt that he, inter alia, “. . . caused the death of an individual

- - namely Annie Toliver - - while stabbing or cutting her with a

knife. . . .” (R.R. XXXVII-14-15). The evidence adduced by the State,

however, wholly fails to show that petitioner caused the death of the

complainant in the manner alleged.

      The forensic pathologist, Shiping Bao,              testified that the

complainant had a total of approximately 38 stab wounds on her body.



                                     19
(R.R. XXXVI-21).      However, none of the injuries the complainant

suffered caused her death. Bao specifically testified as reflected at R.R.

XXXVI-26, to-wit:

            “Actually the conclusion was since there's no

            single fatal injury on the body, there's clotted

            blood, I would think Annie Toliver could have

            survived if there were emergency treatment

            during this period of time by removing the air

            and blood in the pleural cavities and blood

            transfusion.”

He further testified that the complainant would have survived her injuries

if she had received proper medical treatment, which, according to Bao,

were standard medical procedures.         (R.R. XXXVI-27-28).          He

specifically testified that the wounds were only potentially fatal because

of a lack of medical treatment. (R.R. XXXVI-33).

      The Court of Appeals erred in finding that the variance, if any, was

immaterial. The allegations as to the manner and means of cause of death

was a factual issue of which the State was required to give notice and

against which petitioner was able to prepare a defense. The Court of

Appeals stated that Toliver would not have required medical attention at



                                   20
all if petitioner had not stabbed her, but that conclusion is superfluous.

There are a number of conceivable factors that would have prevented

Toliver from requiring medical attention, none of which constituted the

cause of death. Clearly, there is a fatal variance between the allegata and

the probata. The State alleged that petitioner caused the complainant’s

death by cutting and stabbing her.       The evidence, however, clearly

establishes the complainant died as a result of a lack of medical

treatment. Contrary to the opinion of the Court of Appeals, this variance

was extremely material. The proof of the complainant’s death, the failure

to seek medical care, was not alleged in the indictment. Therefore, the

State has proven petitioner “ . . . guilty of a crime, but has proven its

commission in a manner that varies from the allegations in the charging

instrument.” Gollihar, supra. As the trial court charged the jury to

convict petitioner if they believed beyond a reasonable doubt that

petitioner caused her death by cutting and stabbing her, and as the State

proved, arguendo, that petitioner caused the complainant’s death by

failing to seek medical care for her, a fatal variance exists. The Court of

Appeals failed to appreciate the insufficiency of the evidence due to this

fatal variance. The Court of Appeals therefore erred in failing to grant

relief because of the fatal variance between the allegations and proof,



                                    21
warranting a reversal by this Court of Criminal Appeals.

      GROUND FOR REVIEW NO. FOUR:

      The appellate court also erred in failing to grant relief on the basis

that the trial court failed to instruct the jury regarding certain lesser

included offenses. As noted herein above, Petitioner was indicted for the

offense of capital murder. (R.R. XXXIV-19). The trial court provided a

jury charge which included the charged offense, and the lesser included

offenses of murder, felony murder, and manslaughter. (R.R. XXXVII-14-

17). Petitioner objected that the charge also did not include a lesser

included charge of aggravated kidnapping and kidnapping.              (R.R.

XXXVII-5).

      The Court of Appeals correctly recognized that a defendant is

entitled to a lesser included offense instruction if proof of the charged

offense includes the proof required to establish the lesser included

offense, and there is some evidence in the record that would permit a jury

to rationally find that if the defendant is guilty, he is guilty only of the

lesser included offense. Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim. App.

2001). The appellate court must review all the evidence produced at trial

in arriving at this determination. Rousseau v. State, 855 S.W. 2d 666

(Tex. Crim. App. 1993).      If the evidence raises an issue of a lesser



                                    22
included offense, a jury charge on that offense is mandatory, regardless of

whether the evidence is from the State or the defendant, or whether it is

strong, weak, unimpeached, or contradicted. Bell v. State, 693 S.W. 2d

434 (Tex. Crim. App. 1985).

        First, as alleged in the case at bar, kidnapping is a lesser included

offense of capital murder. The Court defined kidnapping for the jury in

its charge. (R.R. XXXVII-13-14). Additionally, the Court charged the

jury it could convict petitioner if it believed that he caused the death of

the complainant by committing an act clearly dangerous to human life in

the course of committing kidnapping. (R.R. XXXVI-16). Therefore,

petitioner has met his burden under the first prong. Ferrel, supra.

        Furthermore, it is obvious that evidence existed that Ppetitioner

was not guilty of the charged offense as alleged, but, if at all, only of a

lesser included offense.               The evidence adduced at trial established,

arguendo, that petitioner did not cause the death of complainant in the

manner alleged by the State, but by another means. 2 The indictment

alleged that petitioner caused the death of the complainant by cutting and

stabbing her with a knife, while in the course of committing or attempting

to commit kidnapping. The evidence, as discussed infra, shows that the

         2Petitioner does not concede that the State proved he caused the death of the complainant, but
presents this theory by way of argument.


                                                  23
complainant died from a lack of proper medical care, a manner not

alleged in the indictment. Therefore, it is clear that while petitioner was

not guilty of the offense of capital murder as alleged, there was evidence

that he was guilty of the offense of kidnapping only.

The Court of Appeals, in concluding that petitioner committed capital

murder, substituted its judgment for what the jury could have determined.

The Court of Appeals based its erroneous opinion on its conclusion that a

rational juror or could have determined that the stab wounds were a cause

of Toliver’s death, consistent with the allegations in the indictment.

Ignored by the Court of Appeals is the fact that a rational juror could

likewise have determined that the lack of medical care was the cause of

death as detailed by the State’s expert witness, acquitted petitioner of

capital murder, and found him guilty of kidnapping. The jury was denied

the opportunity to make that factual determination, which issue

apparently escaped the Court of Appeals. The Court of Appeals

concluded that because the jurors had sufficient evidence to convict

petitioner of capital murder, there was no evidence of a lesser included

offense. That determination by the Court of Appeals ignores the salient

portions of the record that challenged the cause of death. The trial court’s

jury charge requires the jury to find that petitioner caused the



                                    24
complainant’s death in order to convict him of either the charged offense,

or any of the lesser included offenses included in the jury charge.

Therefore, according to the charge, the jury must have found petitioner

caused a homicide to convict him of anything. However, the jury charge

does not allow the jury to convict petitioner of the offense that the State

actually proved: kidnapping. The only difference between the charged

offense of capital murder and the requested lesser included offense of

kidnapping is the existence of a homicide. The jury could have found,

based upon the evidence adduced by the State, that petitioner did not

cause the death of the complainant in the manner alleged by the State, and

is therefore not guilty of committing a homicide, but did, in fact, kidnap

the complainant.

      The trial court charged the jury on a plethora of lesser included

offenses. (R.R. XXXVII-15-17). Therefore, the trial court acknowledged

that some evidence of the charged offense of capital murder was absent.

However, the trial court’s charge of the lesser included offense of felony

murder still requires the jury to find that petitioner committed the offense

of kidnapping. Other charged lesser included offenses allowed the jury to

convict petitioner of a homicide offense without requiring the jury to find

petitioner also committed the offense of kidnapping. However, there was



                                    25
evidence in the record that a rational juror or could have believed

demonstrated that petitioner did not cause the death of the complainant in

the manner alleged in the indictment. This is true, regardless of the

opinion by the Court of Appeals regarding guilt. Therefore, because of

the fatal variance between the allegata and the probata regarding the

complainant’s death, the jury could have rationally found that petitioner

kidnapped the complainant, but did not cause her death in the manner

alleged. The Court of Appeals even failed to address the fact that the trial

court recognized the possibility of an acquittal of capital murder and

instructed the jury regarding some lesser included offenses. Because the

trial court already concluded that a genuine issue as to the lack of

evidence proving beyond a reasonable doubt that petitioner committed

the offense of capital murder, demonstrated by the court’s lesser included

instructions, it erred in not also providing an instruction on kidnapping

over petitioner’s objection. (R.R. XXXVII-5). The Court of Appeals

erred in its analysis of this issue based on its opinion that appellant was

guilty of capital murder. Just because a rational juror could have found

petitioner guilty of capital murder does not necessarily mean that another

rational juror could have acquitted petitioner of capital murder and found

him guilty of kidnapping. Because of this failure of the Court of Appeals



                                    26
to grant relief on this issue, this court should reverse the conviction.

      GROUND FOR REVIEW NO. FIVE:

Regarding the introduction of prejudicial photographs, the Court of

Appeals erred in its analysis of the issue. The Court of Appeals correctly

recognized the standard of review as abuse of discretion standard. Torres

v. State, 71 S.W. 3d 758 (Tex. Crim. App. 2002). The trial court’s ruling

is overturned when it falls outside the zone of reasonable disagreement.

Santellan v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997). Rule 403,

Tex. R. Evid., requires that photographs introduced into evidence to have

some probative value that is not outweighed by their inflammatory

nature. Long v. State, 823 S.W. 2d 259 (Tex. Crim. App. 1991). Factors

the court uses in making this determination included the number of

exhibits offered, their gruesomeness, their detail, their size, whether they

are black and white or in color, whether the body is naked or clothed, the

availability of other means of proof, and any circumstances unique to an

individual case. Long, supra. Applying this to the case at bar leads to the

inescapable conclusion that the trial court abused its discretion in

admitting into evidence several autopsy photographs over Appellant’s

objection.

      The State tendered State’s Exhibits Number 148, 149 and 150.



                                      27
Petitioner objected to their admission, observing that any possible

probative value was outweighed by the effect of the unfair prejudice.

(R.R. XXXV-188). The complained of photographs were large, full color

closeups of the complainant’s bloody face in two photographs, and of the

complainant’s entire bloody body in the third photograph. The State

offered them into evidence purportedly to demonstrate the condition in

which the complainant’s body was found. However, the State introduced

other photographs demonstrating the condition of the complainant’s body

to which petitioner did not object.       The complained of photographs,

therefore, were not needed in order for the State to establish the condition

of the complainant’s body. As such, they had no probative value.

      The State additionally tendered eight photographs from the autopsy

on the complainant as State’s Exhibits Numbers 206, 207, 209, 210, 211,

212, 214, and 216, with the State’s forensic pathologist, Shiping Bao,

serving as the sponsor. (R.R. XXXVI-5, 14). Petitioner objected to their

introduction, complaining that any probative value they might have was

outweighed by their inflammatory nature. Rule 403, Tex. R. Evid. (R.R.

XXXVI-6, 14). The trial court overruled petitioner’s objection. (R.R.

XXXVI-6, 14). The photographs were gruesome in nature, in that they

were large, full color detailed closeups of numerous puncture wounds on



                                     28
complainant’s body. The State’s theory for their introduction was that

they demonstrate the wounds inflicted by petitioner. Unique to the cause

sub judice, however, is the fact that these wounds did not cause the death

of the complainant according to the State’s own evidence.




                                   29
        According to the forensic pathologist’s testimony, these wounds did not

cause the death of the complainant. Bao testified that none of these wounds was

fatal, nor did they cause the death of the complainant. (R.R. XXXVI-26). A lack

of proper medical care caused the complainant’s death, according to Bao. (R.R.

XXXVI-27-28, 33). Therefore, these photographs had minimal probative value at

best.   As such, any putative probative value was grossly outweighed by the

photographs’ prejudicial effect. Bao testified that the gruesome wounds depicted

in the photographs did not cause the death of the complainant. Therefore, their

introduction only served to inflame the minds of the jury. The opinion of the Court

of Appeals simply described the photographs with insufficient analysis of the

prejudicial effects and lack of probative value. The Court of Appeals then simply

summarily stated that there was no abuse of discretion in the admission of the

photographs in contravention of the authorities cited by petitioner above. The

Court of Appeals therefore erred in failing to properly address the factual

complaints concerning the photographs and in summarily finding no abuse of

discretion. The error of the Court of Appeals requires this court to reverse the

conviction.

        The reasons compelling review by this Court are therefore several. The

decision of the Court of Appeals conflicts with decisions of other appellate courts,

the same appellate court, and with applicable decisions of this Court and the
United States Supreme Court.          The Court of Appeals has in effect decided

important questions of State law which should be settled by this Court of Criminal

Appeals. The decision of the Court of Appeals is therefore in conflict with the

decisions cited above and additionally has so far departed from the accepted and

usual course of judicial proceedings, or so far sanctioned such a departure by a

lower court, as to call for an exercise of this Court's power of supervision.

                               PRAYER FOR RELIEF

         For the reasons herein alleged, petitioner was denied a fair trial in Cause No.

10-04337-CRF-85 and Cause No. 10-13-00105-CR before the Court of Appeals.

This Court should grant review in order to address and correct the errors of the

Court of Appeals. Therefore, petitioner prays that this Court grant this petition,

and upon reviewing the judgment entered below, reverse this cause and render a

judgment of acquittal, or in the alternative, remand it to the trial court for a new

trial.

                                         Respectfully submitted,

                                                /S/ Gerald E. Bourque

                                         GERALD E. BOURQUE
                                         Appointed Counsel for Petitioner
                                         Attorney at Law
                                         24 Waterway Ave., Suite 660
                                         The Woodlands, TX 77380
                                         PHONE: (281) 379-6901
                                         FAX: (832) 813-0321
                                         TBL #02716500
                         CERTIFICATE OF SERVICE


       This is to certify that copies of the above entitled and numbered petition for
discretionary review have been served on the State by providing a copy to the
Office of the District Attorney, 300 East 26 th Street, Suite 310, Bryan, Texas,
77803, by United States Mail, postage prepaid, and the State Prosecuting Attorney,
P.O. Box 12405, Austin, TX 78711, by United States Mail, postage pre-paid, on
the 12th day of May, 2015.


                                             /S/ Gerald E. Bourque

                                       GERALD E. BOURQUE
                                       Attorney for Petitioner




                      CERTIFICATE OF COMPLIANCE

       Pursuant to Rules 9.4(i)(1), 9.4(i)(2)(A), and 9.4(i)(3), Tex. R. App. Proc, I

hereby certify that the word count of the program used to prepare this document is

4,139 words.


                                             /S/ Gerald E. Bourque

                                       GERALD E. BOURQUE
APPENDIX A
