                              PD-0466-15
                              NO. ___________________

                                     IN THE
                           COURT OF CRIMINAL APPEALS
                                   OF TEXAS

__________________________________________________________________

                               OSBALDO VALDEZ,
                                   Petitioner
                                       v.

                              THE STATE OF TEXAS
                                   Respondent


 On Appeal from Cause No. 131798D in the 297th District of Tarrant County,
 Texas, Honorable Everett Young, Judge Presiding, and No. 02-14-00057-CR
          in the Court of Appeals for the Second District of Texas
__________________________________________________________________

                PETITION FOR DISCRETIONARY REVIEW
____________________________________________________________________

                                         Stickels & Associates, P.C.
                                         John W. Stickels
                                         TBN: 19225300
                                         P. O. Box 121431
          April 24, 2015                 770 N. Fielder Rd.
                                         Arlington, Texas 76012
                                         Phone: (817) 479 - 9282
                                         Fax: (817) 622 – 8071
                                         john@stickelslaw.com
                                         Attorney for Petitioner


     NO ORAL ARGUMENT REQUESTED
                                      THE PARTIES

      Pursuant to Rule 38(a) of the Texas Rules of Appellate Procedure, the

following is a complete list of the names and addresses of all parties to the trial

court’s final judgment and counsel in the trial court, as well as appellate counsel, so

the members of the court may at once determine whether they are disqualified to

serve or should recuse themselves from participating in the decision of the case and

so the Clerk of the Court may properly notify the parties to the trial court’s final

judgment or their counsel, if any, of the judgment and all orders of the Court of

Appeals.


      Trial Judge:                      The Honorable Everett Young
                                        297th District Court
                                        Tarrant County, Texas
                                        401 Belknap, 5th Floor
                                        Fort Worth, Texas 76196

      Petitioner:                       Osbaldo Valdez
                                        TDC No. 01910692
                                        Polunsky Unit
                                        3872 FM 350 South
                                        Livingston, TX 77351

      Appellant’s Trial Counsel:        Honorable Ken Cutrer
                                        TBN: 00787318
                                        912 W. Belknap
                                        Fort Worth, Texas 76102



                                                                                      i
Appellant’s Counsel
on Appeal:                  Honorable John W. Stickels
                            TBN: 19225300
                            P. O. Box 121431
                            770 N. Fielder Rd.
                            Arlington, Texas 76012

Appellee:                   The State of Texas

Appellee’s Trial Counsel:   Honorable Lisa Callaghan
                            TBN: 01160700
                                  and
                            Honorable Kim Martinez
                            TBN: 24045101
                            Assistant District Attorneys
                            401 Belknap
                            Fort Worth, Texas 76196

Appellee’s Counsel
on Appeal:                  Tarrant County Criminal District Attorney
                            Appeals Division
                            401 Belknap
                            Fort Worth, Texas 76196




                                                                        ii
                                            TABLE OF CONTENTS

THE PARTIES ..................................................................................................................... i

TABLE OF CONTENTS ...................................................................................................iii

TABLE OF AUTHORITIES.............................................................................................. iv

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

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

STATEMENT OF PROCEDURAL HISTORY ................................................................. 1

GROUNDS FOR REVIEW ................................................................................................ 2

The Second Court of Appeals erred when it did not find that there was insufficient evidence
to support Petitioner’s conviction........................................................................................ 2

REASONS FOR REVIEW.................................................................................................. 2

DISCUSSION...................................................................................................................... 2

ARGUMENTS .................................................................................................................... 7

A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW: ..................................... 7

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE: ....................... 7

PRAYER FOR RELIEF .................................................................................................... 11

CERTIFICATE OF SERVICE.......................................................................................... 12

CERTIFICATE OF COMPLIANCE ................................................................................ 12

APPENDIX ....................................................................................................................... 13




                                                                                                                                iii
                                         TABLE OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). ................................................. 7

Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001). .................................................. 7

Jackson v. Virginia, 443 U.S. 307 (1979) ........................................................................... 7

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993). .................................................. 7

Statutes

Tex. Penal Code §2.01(2003). ............................................................................................. 7

Tex. Penal Code §29.03(1994) ............................................................................................ 8

Tex. Penal Code §6.03(a)(1974). ........................................................................................ 8

Tex. Penal Code §6.03(b)(1974). ........................................................................................ 9

Rules

Tex. R. App. P. 38(a)............................................................................................................ i

Tex. R. App. P. 66.3 ............................................................................................................ 2

Tex. R. App. P. 9(4)(i)(1). ................................................................................................. 12

Tex. R. App. P. 9.4(e)........................................................................................................ 12

Tex. R. App. P. 9.4(i)(2).................................................................................................... 12




                                                                                                                                iv
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner does not request oral argument in this case.

                          STATEMENT OF THE CASE

      Petitioner was indicted in a two-count indictment in Cause No. 1317982D in

the 297th District Court of Tarrant County, Texas. The indictment alleged that

Petitioner committed the felony offense of aggravated robbery in Tarrant County,

Texas, on or about February 13, 2014. The indictment contained a repeat offender

notification. (CR. 6). Petitioner’s jury trial was held in the 297th District Court of

Tarrant County, Texas, before the Honorable Everett Young. The jury found

Petitioner guilty of the offense of aggravated robbery. (CR. 67; 5 R.R. at 58). The

jury found the repeat offender allegation to be ‘true’ and sentenced Petitioner to

confinement for ninety nine (99) years in the Institutional Division of the Texas

Department of Criminal Justice. (C.R. 77; 6 R.R. at 61). Petitioner has remained in

custody pending appeal.

                 STATEMENT OF PROCEDURAL HISTORY

      The opinion by the Second District Court of Appeals affirming the trial court’s

decision was handed down on March 19, 2015. Therefore, this PDR was due on

April 20, 2015. A Motion for Leave to File PDR Late is being tendered herewith.



                                                                                    1
                              GROUNDS FOR REVIEW

       The Second Court of Appeals erred when it did not find that there was

insufficient evidence to support Petitioner’s conviction.

                              REASONS FOR REVIEW

      1. The decision of the Second Court of Appeals conflicts with decisions

rendered by the Court of Criminal Appeals.

      2. The decision of the Second Court of Appeals conflicts with the decisions

of other courts of appeals.

      3. The decision of the Second Court of Appeals so far deviates from the fair

administration of justice that a Court of Criminal Appeal’s correction is required.

See Tex. R. App. P. 66.3

                                  DISCUSSION

      On February 13, 2013, the Metro PCS store locate at 901 Sylvania, Fort

Worth, Texas was robbed by an unknown person wearing a grey hoodie and grey

sweat pants. The store employee described the unknown person as a Hispanic male

in his 20’s wearing a grey hoodie, grey sweat pants, and a black mask. (4 R.R. at

19-22). The unknown person was also carrying an automatic pistol. A picture of a

similar pistol was admitted as State’s Exhibit 7 (for demonstrative purposes only).

(4 R.R. at 22-23; SX 7). The unknown person pointed the pistol at the clerk and
                                                                                 2
demanded money and a cell Galaxy S3 cell phone. (4 R.R. at 24). The clerk gave

the unknown person about $300.00 from the cash register but did not have a Galaxy

S3 cell phone to give him. (4 R.R. at 24-26). Instead, the clerk gave the unknown

person a LG Spirit phone. The clerk could not identify the person who robbed her.

(4 R.R. at 27).

      R.H. owns the building where the Metro PCS store was located and was

driving by the Metro PCS store when the unknown person wearing came out of the

Metro PCS store wearing a grey hoodie and sweat pants. R.H. decided to follow the

unknown man. (4 R.R. at 40-42). R.H. followed the unknown man to the end of the

building when the unknown man took off the hoodie and the sweat pants and threw

them in the trash. (4 R.R. at 42). After he took off the grey hoodie and sweat pants,

he is wearing a t-shirt R.H. continued to follow the unknown man to a cul-de-sac

where he waited until the unknown man turned around and came back. (4 R.R. at

42-43). The car the unknown man was driving was a black car similar to a firebird

with an ‘old style’ Texas license plate with, possibly, a B and 873. (4 R.R. at 45-45).

      R.H. saw the unknown person as he was driving the car past him and described

the driver as a “good built” Hispanic male with short hair about 30 years old. The

man had kind of a rounded face and no tattoos or any other distinguishing features.

(4 R.R. at 46-47).
                                                                                     3
      A detective showed R.H. a photograph lineup containing 6 Hispanic males

and identified one of the pictures as being the person who came out of the Metro

PCS store. (4 R.R. at 48-50; SX 67).     However, R.H. identified another person as

possibly being the person he saw coming out of the Metro PCS store. (4 R.R. at 51-

52). R.H. made an in-court identification of Petitioner as the person who came out

of the Metro PCS store. (4 R.R. at 52-53).

      R.H. admitted during cross examination that he had difficulty identifying the

unknown person during the photo lineup. (4 R.R. at 56-58). R.H. was confused

between two pictures in the photo lineup and selected two pictures of people he

thought could have been the unknown person who was coming out of the Metro PCS

store. (4 R.R. at 57-58). R.H. selected the picture who looked most like the person

coming out of the Metro PCS store. In fact, R.H. said that he hoped he was selecting

the correct picture and doing the right thing and not getting his identification wrong.

(4 R.R. at 57-59).

      The LG Spirit phone was activated the day following the robbery by someone

and calls were made on it. (4 R.R. at 114). Officers from the Fort Worth Police

Department obtained a warrant for the phone records relating to the activated LG

Spirit cell phone. The records relating to the LG Spirit phone were admitted as

State’s Exhibit 64. (4 R.R. at 115; SX 64). The records for State’s Exhibit 64
                                                                                     4
showed that multiple calls were made to and from the LG Spirit were related to

phone numbers connected to Petitioner’s girlfriend, mother, and place where he

lived. (4 R.R. at 117-122). The officers watched the house where Petitioner lived

for about a week and saw a car similar to the one described by R.H. (4 R.R. 125).

The officers obtained and arrest and search warrant for Petitioner and arrested him.

(4 R.R. at 127-128).

      Officers conducted a sequential photographic lineup with R.H. that included

a picture of Petitioner. (4 R.R. at 135-137. SX 69)   R.H. ultimately chose picture

number 4 (Petitioner), however, he was unsure of his identification. (4 R.R. at 137,

156-159). According to the detective who administered the lineup, R.H. identified

“number 1 or number 4, but number 4 looked most like the subject.” ((4 R.R. at 157,

ln. 22).

      The detective identified Defendant’s Exhibit 2 as a recording of the photo

spread interview of R.H. (4 R.R. at 159; DX 2). Defendant’s Exhibit 2 was played

for the jury (4 R.R. at 159) and demonstrates the difficulties R.H. had in making the

identification from the photographs. (DX 2).

      According to the detective, R.H. did not describe the unknown as having any

tattoos – even though he was wearing a white t-shirt. (4 R.R. at 160). In fact, R.H.

did not remember the unknown person as having any tattoos. (4 R.R. at 160-161).
                                                                                   5
However, Petitioner has many tattoos that are visible when he is wearing a t-shirt.

According to Petitioner’s Aunt he has had many tattoos for over 2 years that are

visible when he is wearing a t shirt. (5 R.R. at 10-11; DX 3, 4, 5, and 6).

      It is important to note there was no physical evidence whatsoever, no

fingerprint, DNA, or any other physical evidence that connects Petitioner to the

robbery. Also, there were no proceeds of the robbery found in any place of item

(automobile) related to Petitioner.     The only evidence that remotely connects

Petitioner to the robbery is the tainted identification by R.H.

      Petitioner was indicted in a two-count indictment in Cause No. 1317982D in

the 297th District Court of Tarrant County, Texas. The indictment alleged that

Petitioner committed the felony offense of aggravated robbery in Tarrant County,

Texas, on or about February 13, 2014. The indictment contained a repeat offender

notification. (CR. 6). Petitioner’s jury trial was held in the 297th District Court of

Tarrant County, Texas, before the Honorable Everett Young. (CR. 161; 4 R.R. at 8).

The jury found the repeat offender allegation to be ‘true’ and sentenced Petitioner to

confinement for ninety nine (99) years in the Institutional Division of the Texas

Department of Criminal Justice. (C.R. 58; 4 R.R. at 170). Petitioner has remained

in custody pending appeal.



                                                                                    6
                                  ARGUMENTS

A.    LEGALLY INSUFFICIENCY – STANDARD OF REVIEW:

      When reviewing a claim of insufficiency of the evidence, the appellate court

must determine, after considering all the evidence in the light most favorable to the

verdict, whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). In conducting this

review of insufficiency, the court does not reevaluate the weight and credibility of

the evidence, but only ensures that the jury reached a rational decision. Muniz v.

State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Whether the evidence satisfies

the Jackson test is a matter of law. The Jackson v. Virginia legal-sufficiency

standard is the only standard that a reviewing court should apply in determining

whether the evidence is sufficient to support each element of a criminal offense that

the State is required to prove beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010).

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:

      The State is required to prove every element of an offense beyond a reasonable

doubt. Tex. Penal Code §2.01(2003). According to the evidence adduced at trial,

there is both factually and legally insufficient evidence for the jury to have found
                                                                                    7
beyond a reasonable doubt that Petitioner committed the indicted offense. As a

result, this Court should overturn his convictions and order an acquittal.

      A person commits the criminal offense of aggravated robbery if the person

uses threats force to commit a theft and uses or exhibits a deadly weapon. Tex. Penal

Code §29.03(1994). The State failed to prove each and every element of the offense

charged. Specifically, the State failed to prove that Petitioner was the person who

committed the offense in question because of a mistaken identity and/or

misidentification.

      The indictment in this case alleges that Petitioner, on or about February 14,

2014, intentionally or knowingly, while in the course of committing theft of property

and with intent to obtain or maintain control of said property, threaten or place M.

R. in fear of imminent bodily injury or death, and the defendant used or exhibited a

deadly weapon, to-wit: a firearm. (C.R. 6). A person acts intentionally, or with intent,

with respect to the nature of his conduct or as a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result. Tex. Penal

Code §6.03(a)(1974). A person 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 exists. A person acts

knowingly, or with knowledge, with respect to a result of his conduct when he is
                                                                                      8
aware that his conduct is reasonably certain to cause the result. Tex. Penal Code

§6.03(b)(1974).

      In the case at bar there is insufficient evidence to support the jury’s finding

that Petitioner committed the offense of aggravated robbery at the Metro PCS store

on February 13, 2014, other than the tainted identification by R.H., because there is

no non-testimonial (physical) evidence that connects Petitioner to the offense alleged

in the indictment.

      The primary problem with the state of the evidence against Petitioner is the

inconclusive identification by R.H. As noted by both R.H. and the detective, during

the photographic lineup R.H. selects two people, the person in place number one and

the person in place number four, as the person who he saw leaving the Metro PCS

store. R.H. stated that is could be this one, could be that one, but number four looks

more like the person he saw. It is important to note that R.H. did not say this is the

person who did it. Instead, R.H. sad this person looks more like the one I saw.

Obviously, ‘this person looks more like the one I saw’ is NOT the same as ‘this is

the person who did it.’

      In addition to the lack of identification, R.H. admits that he may have made

an incorrect identification when he told the detective that he hopes he’s not making

a terrible mistake by picking this person.
                                                                                    9
      Finally, the recording of R.H. making his identification of Petitioner, Defense

Exhibit 2, demonstrates how hesitant he was in identifying Petitioner.

      The second problem with the state of the evidence against Petitioner is that

R.H. failed to note R.H.’s obvious identifying factor – his tattoos. Petitioner’s Aunt

testified that Petitioner has many tattoos that are visible when wears a t-shirt. As

noted by R.H., the unknown person had on a t-shirt after he threw away the grey

hoodie and sweat pants.       Petitioner’s tattoos are also amply demonstrated in

Defendant’s Exhibits 3, 4, 5, and 6. If Petitioner had truly send Petitioner as he

testified, he would have noticed the tattoos.

      Finally, the third problem with the state of the evidence against Petitioner is

the lack of any physical evidence connecting him to the robbery. As stated above,

there was no physical evidence whatsoever, no fingerprint, DNA, or any other

physical evidence that connects Petitioner to the robbery. Also, there were no

proceeds of the robbery found in any place of item (automobile) related to Petitioner.

      The only evidence that remotely connects Petitioner to the robbery is the

tainted identification by R.H. As amply demonstrated above, R.H.’s identification

of Petitioner is tainted, suspect, and is insufficient to support his conviction.




                                                                                    10
         The Second Court of Appeals erred when it did not find that there is

insufficient evidence to sustain Petitioner’s conviction and this court should reverse

Petitioner’s conviction.

                             PRAYER FOR RELIEF

         WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

that this Court grant discretionary review and allow each party to fully brief and

argue the issues before the Court of Criminal Appeals and that upon reviewing the

judgment entered below, that this Court reverse this cause and remand it for a new

trial.

                                              Respectfully submitted,

                                              Stickels & Associates, P.C.
                                              P. O. Box 121431
                                              770 N. Fielder Rd.
                                              Arlington, Texas 76012
                                              Phone: (817) 479 - 9282
                                              Fax: (817) 622 – 8071
                                              john@stickelslaw.com

                                              BY: /S/ John W. Stickels
                                              John W. Stickels
                                              State Bar No. 19225300
                                              Attorney for Osbaldo Valdez




                                                                                   11
                             CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has

been furnished to counsel for the State via hand delivery and on the State Prosecuting

Attorney via regular mail on this 23rd day of April, 2015.

                                              /S/ John W. Stickels
                                              John W. Stickels



                        CERTIFICATE OF COMPLIANCE

   1. This brief complies with the type-volume limitation of Tex. R. App. P.

       9.4(i)(2) because it contains 2,694 words, excluding the parts of the brief

       exempted by Tex. R. App. P. 9(4)(i)(1).

   2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

       because it has been prepared in proportional spaced typeface using Windows

       Word software in Times New Roman 14-Point text and Times New Roman

       12-point font in footnotes.


                                              /S/ John W. Stickels
                                              John W. Stickels




                                                                                   12
                           APPENDIX

1. Opinion of the Seventh Court of Appeals




                                             13
