                        CAUSE     NO.   04-14-0024-CR
                                                           /33*ffS
                    IN THE COURT OF CRIMINAL APPEALS
                                  AUSTIN/     TEXAS




ORIGINAL APETITI0N F0R DISCRETIONARY REVIEW
                      OF CAUSE NO.        04-14-0.024-CR          COURT OF CR!?J3NAL APPEALS
                       FROM THE COURT OF APPEALS                       NOV 03 2Q15
                       FOURTH DISTRICT OF TEXAS

                            SAN ANTONIO,         TEXAS




         ON APPEAL FROM THE 81ST JUDICIAL DISTRICT COURT

                        La SALLE COUNTY,           TEXAS

                    TRIAL CAUSE NO.         11-09-00041-CRL




                      MR.   DESTYN DAVID FREDERICK
                            [PRO-SE APPELLANT]                COURT-OFePIIMiNXtfA^feALS
                                                                         (OCA)
                                        VS.                          my 03 2s;5

                            THE   STATE     OF   TEXAS
                                                                  Abel Acosta, Cierk
                                  [APPELLEE]




              Mr.    Destyn David Frederick #01920865

                The John B. Connally Facilities

                                  899   FM 632

                       Kenedy,     Texas 78119-4516




                       ORAL ARGUMENT REQUESTED



                                         -l-
                                  CAUSE          NO.   04-14-0024-CR


                            IN   THE       COURT    OF    CRIMINAL       APPEALS

                                             AUSTIN,           TEXAS




                        A   PETITION         FOR       DISCRETIONARY          REVIEW
                                                                               j
                                 OF    CAUSE       NO.    04-14-0024-CR

                                 FROM       THE    COURT        OF   APPEALS


                                  FOURTH         DISTRICT        OF    TEXAS


                                           SAN   ANTONIO,        TEXAS




               ON    APPEAL      FROM      THE    81ST JUDICIAL          DISTRICT      COURT


                                      La    SALLE      COUNTY,        TEXAS


                            TRIAL       CAUSE      NO.     11-09-00041-CRL




                                 MR.       DESTYN      DAVID     FREDERICK

                                           [PRO-SE APPELLANT]

                                                         VS.



                                           THE   STATE     OF    TEXAS

                                                  [APPELLEE]




      COMES    NOW, Mr. Destyn David Frederick, styled hereinafter as pro
se    Appellant      and     respectfully                presents        this      Petition for Discre
tionary Review (PDR) relating to the above-styled and numbered cause(s),
and    for    good    cause,          the        Appellant           shows this Honorable Court the
following enumerated premises:




                                                               11-
                                     TABLE   OF   CONTENTS
                                                                        PAGES


INDEX OF AUTHORITIES *************************************              — 'Ivj*'-

STATEMENT REGARDING ORAL ARGUMENT ************************              —.I/.-*-
                                                           i
STATEMENT      OF   THE   CASE   ************************************   •^y.J^-


STATEMENT OF PROCEDURAL HISTORY **************************              — \/~

GROUND FOR REVIEW ****************************************                —1-

ARGUMENTS ************************************************              1—5

PRAYER   FOR    RELIEF     ****************************************        5


APPENDIX ************************************************ (COURT'S OPINION)




                                              -Hi
                            INDEX AUTHORITIES



                                                                     PAGES

 BURKS V. UNITED STATES,437 U.S. 1, 93 S.Ct- 2141 *************


 CAIN V. STATE,958 S.W.2d 404 **************************   *******




GREEN V. MASSEY.437 U.S. 19, 98, S-Ct. 2151 ******************


In re WINSHIP,397 U.S. 358, 90 s.Ct- 1066 ***************   :*****




JACKSON V. VIRGINIA,SUPRA ************************************         5




JONES V. STATE,944 S.W.2d 642 ********************************
                                                                       2




RICHARDSON V. STATE, 379 S-W.2d 674 ***************************
                                                                      5




ROUSSEAU V. STATE,355 S.W.2d 673 *****************************


STONE V. STATE,823 S.W.2d 375 ********************************
                                                                     1, 2



TEXAS PENAL CODE 19.02(b)(3) *********************************




                                  - IV..-
                                           STATEMENT               OF    ORAL       ARGUMENT


       Appellant           seeks           ORAL           argument              because He concludes that He has
suffered a great injustice at                                  the trial and appellate level.



                                                   STATEMENT             OF    THE   CASE



       Appellant           was     charged                    by     a        Grand Jury on September 1,        2011 in
a     Fourt       (4)      Count           indictment.                        All    offenses were alleged to have
occured          on or about June 13,                          2011.          (CR:1).    The State waved the death
penalty.          Id.      at     103.                  Before           jury selection,       the State elected to
proceed          to trial on the offense of Capital murder as alleged in Count
1. (RR.11:3-4).                 The Appellant plead not guilty before a jury.                                   (CR:412)
The     jury        returned           a           unanimous              verdict       of guilty to felony-murder
on     February           14,     2014.                 Id.        at 424.          Punishment was assessed by the
jury        at    30-yrs         confinement                       within the Texas Department of Criminal
Justice -         Institutional                    Division,             and a      fine of $5,000.00.    Id.



                                  STATEMENT OF PROCEDURAL                               HISTORY


       Appellant           filed           a        Motion           for        New Trial on March 12,      2014.     In
accordance           to     the        juror's verdict and the court's ruling,                              the court
entered          judgment         of           conviction and sentence on March 27, 2014.                           (CR:
691;    and.498-99).
       Appellant           filed           a        timely notice of Appeal on February 14, 2014.
Id.     at       675,     and a Certificate of Appeal was filed February 12,                                      2014.
Id.    at    674.

       The       Fourth         Court              of     Appeals AFFIRMED Appellant's conviction on
September           9,     2015.               A        Motion           to     Extend Time to file Petition for
Discretionary              Review              (PDR)           was filed by the Appellant's [then] app
ellate attorney (Richard E.                               Langlois) on October 9,                 2015.
       Appellant           now     presents                    this His "timely" submitted Petition for
Discretionary Review on this the 0\tf day of @fcfoP&S":„ 2015pm.

                                                                     -V-
                                                  GROUND     FOR   REVIEW



            "THE COURT OF APPEALS ERR'D IN LIMITING ITS REVIEW ON THE APP
             ELLANT' S INSUFFICIENCY OF THE EVIDENCE CLAIM AND HAS APPLIED
             A MISAPPLICATION SURROUNDING THE FACTS OF.THE APPELLANT'S CASE;
             HENCE DENYING,THE APPELLANT'S DUE PROCESS RIGHTS TO A FAIR AND
             ADEQUATE REVIEW."



                                ARGUMENTS AND AUTHORITIES Pi SUPPORT
                                          OF SOLE GROUND FOR REVIEW




[tEUE]:     Even though this is not a Ineffective Assistance of Oxnsel Issue, the Appellant asserts
             that His appellate attorney (Richard E. Langlois) was biasly inefective for failing
            to present "other" issues/grcuids for reversal considerations, and as this Honorable
            Court can see for itself on page 4 (at bottcm) and top of page 5 of the COA's 'tPINIDN",
           Appellant's counsel was also ineffective for attempting to raise the "Accomplice Witness"
            issue as a independent ground for review. Please know that the Appellant made extrerrely
            diligent attempts to p.irusade HLs appellate counsel to raise "other" per-se reversal
           issues for appellate review other than the lone issue presented in the Etief he submitted
            in the Appellant's behalf, of course to no avail.,etc.-. The Appellant now respectfully
           presents this His.pro-se rebuttal to the COA's "OPINION."



                       "LIMITED REVIEW AND MISAPPLICATION OF THE FACTS"


       Within          this     argument,              the Appellant asserts that the Court

of     Appeals (COA) err'd in limiting its review of the Appellant's

Insufficiency             of        the Evidence claim strickly to only "reviewing

evidence in the light most favorable to the verdict."

       In        the    past,         this Honorable Court stated that jit emphasize

that        in     performing             a      sufficiency review, the COA are required

to     give        deference              to     the    jury's     verdict, examine all of the

evidence           impartially,                 and    set     aside   the jury's verdict if it

is     contrary           to        the        overwhelming        weight   of evidence as to be

clearly wrong and unjust. Cain v. State,958 s.w.2d 404 (Tex.Crim.

App.        1997)(citing              Clewis v. State,922 s.w.2d at 129).               A suffi
ciency,          review        is     permitted          by the Texas Constitution, Article

V,     §     6.        See     also            Stone    v. State, 823 s-w.2d 375 (Tex.App.-


                                                         -1-
Austin 1994,        no pet.) the Court stated:


            When conducting a sufficiency review, we do not review the
           evidence in the light most favorable to the verdict. Instead,
           we consider all the evidence equally.*** We will set aside
           a1 verdict for sufficiency if it is contrary to the overwhelming
           weight of the evidence as to be wrong and unjust." (In perti
           nent part only)


      In     the        instant case and in accords with the above requisites,                     the

Appellant          would       urge th&t—the—jury's verdct must be set aside because
it    is     clearly wrong and unjust, because such a verdict clearly shocks

the    conscience             and        cannot stand. Jones v. State,944 s.w.2d 642 (Tex.

Crim. App. 1996).

      More     specifically,                   the     trial    testimony established at most that
the     Appellant            had     absolutely no knowledge or direct involvement with
the     murder          of     the       Complainant.          This contention is supported by the

following          facts,          unlike        the COA's misapplication of the actual facts
as illustrated throughout its Opinion:                            :,


                                     SUPPORTING FACT NUMBER ONE (1)

                                         "SHOTGUN NOT SUPPLIED FOR MURDER"

      While        at        the     residence          of the Appellant, Rigo Guerra and Marcus

Serna       (the        "alleged"              co-defendents) were in the Appellant's bedroom,
in which Guerra saw a shotgun on the Appellant's bed. Appellant related
to    Guerra        that           His     mother       (Gloria        Rodriguez) was selling the gun.

After       making           sure        the     gun    wasn't     loaded,    Appellant allowed Guerra

to hold the gun, in which Guerra wanted to consult with his grandmother
to    see     if        she        would fPlbCChase the gun for him. [See page 9 of Appe

llant's Appeals Brief].

      This     testimonial,               evidence       clearly        demonstrates that not only did


                                                           -2-
the     Appellant               present the gun to Guerra for purchasing purposes,                      but!

upon     giving            it     to Guerra,          He made sure that its wasn't loaded.             These

facts        clearly            removes        the     Appellant from criminal intent of murder,

for     it      was        the     Appellant's              sole        conscious desire to sell the gun,

nothing else.               [DARK BOLD MINE FOR EMHPASIS];


                                       SUPPORTING FACT NUMBER TWO (2)


                                "NO KILLING WAS PLANNED OR KNOWN TO APPELLANT"


       One      of     the        Appellant's              "alleged"        co-defendants (Guerra) wanted

to kill a        innocent by-stander,                      in which Serna responded to Guerra:

 ...We're            (Serna        &     Guerra)           not     going     to do anything stupid."     All

 of     th is        took        place     outside           of        the presence of the Appellant.    (RR

8, pg 102-113).

       This      evidence shows that killing someone was not part of the Appe

llant's         plans.           The     evidence           clearly demonstrates that the Appellant

was     not      told           and/or     warned            of Seran and Guerra's plans,       for it is

totally obvious that Serna and Guerra were plotting,and planning things

with     one         another           behind        the     Appellant's        back. [DARK BOLD MINE FOR

EMPHASI S];          and


                                   SUPPORTING FACT NUMBER THREE (3)


                                           "THE APPELLANT WALKED AWAY"


       After         agreeing           only     to        steal a few tangible items from the Com

plainant's            garage,           the Appellant saw that Serna and Guerra were about

to     force         their        way     into        the Complainant's home, He (the Appellant)
knew     that He didn't want to have anything to do with actually breaking


into     the         Complainant's              home        or     hurting anyone, therefore He walked


                                                                  3-
away     from        Serna and Guerra and walked out of the Complainant's garage

"before"        the       forced         entry transpired,            in which He later learned that

the Complainants had been shot.                         Id. at pg 114-123.

       This     evidence           clearly           shows    that the Appellant did not act as a

party by planning and anticipating the burlary and murder of the Com

plainant.           [DARK BOLD MINE FOR EMPHASIS].

      These facts within themselves openly illustrates that the COA failed

to     apply        the     correct        review and legal analysis in deciding that the

evidence        was        sufficient           to     establish          Appellant's   guilt as a party

to felony-murder.


       Finally,           the     COA     failed        to    address within its entire "OPINION"

any     of     the        the     requisites outlining the elements for felony-murder.

This        Honorable           Court     has        stated that the difference between Capital

and     felony        murder           is the culpable mental state of the defender. This

Court has said that capital murder required the existence of an "inten

tional        cause        of     death" while felony-murder states that "the culpable

mental        state        for     the     actrrof murder            is supplied by the mental state

accompanying              the     underlying           felony.        Rousseau     v.   State,855 s.w.2d
at     673     (Tex.Crim.App.              1993).        However, the inquiry does not end with

a     finding        that        the     Appellant           possessed       the requisite culpable to

commit        the     underlying           felony.           In    order     to find that the Appellant

is     guilty        of     felony-murder,              the        jury    must find that the Appellant

committed           "an     act        clearly dangerous to human life." (See Texas Penal

Code,       § 19.02(b)(3).

       In    the instant case,             a review of the testimony in this case reveals

that        the State failed to prove that the Appellant "intended" the death


                                                             -4-
of     the        Complainant          or     committed          an     act clearly dangerous to human
life.


       The        Court in In re Winship,397 U.S.                       358,    90 S.Ct.   1068,   25 L.Ed.2d

368,        the     Court       held        that the Due Process of the Fourteenth Amendment

protect s          a    defendant           in    a criminal case against conviction "except

upon        proof       beyond      a reasonable doubt of every fact necessary to con
stitute           the     crime     with         which     he is charged. 90 S.Ct.            at 1073.    See

also Richardson v. State,879 s.w.2d 874 (Tex.Crim.App.).

       As     mentioned earlier, the COA faild to address any of these requi

sites        while        reviewing          the Appellant's case, nor did they apply them,

hence denying Appellant a proper and adequate review.

       Finally,           the     Appellant         contends           that the evidence and testimony

in     this        case       falls short and is               insufficient to meet the minimum Due

Process           requirements          of the Fourteenth Amendment to the United States

Constitution.             Jackson v. Virginia,supra.                      The evidence is insufficient

to     support          the     conviction          and a judgment of acquittal should be en

tered.        Burks       v.      United         States,437           U.S.I,    98 S.Ct    2141,   57 L.Ed.2d

1; and Green v. Massey,437 U.S.                          19,   98 S.Ct-        2151,   57 L.Ed.2d 15.


                                                 PRAYER    FOR   RELIEF



     WHEREFORE PREMISES ARE CONSIDERED,                          the Appellant PRAYS that this

Honorable           Court       GRANT       this     PDR by finding that the COA's assessment

of     His        sufficiency          of    evidence          issues were not properly addressed,

and REMAND this case back to the District Court for further disposition

-and/or Reverse this conviction and acquit the Appellant-


[EXECUTED ON THIS THE J21 ffcfDAY OF OCTOBER, 2015]



                                                           5-
          Respectfully submitted,



          Mr. Destyn. D. Frederick #1920865
          The Connally Facilities
          899 FM 632
          Kenedy, Texas 78119-4516




w




    -6-
[APPENDIX "COURT OF APPEALS OPINION" ATTACHED HERETO]
                               jfourti) Court of Appeals:
                                     ^>an Antonio, tEexag

                                 MEMORANDUM OPINION

                                        No. 04-14-00246-CR


                                    Destyn David FREDERICK,
                                             Appellant

                                                  v.



                                        The STATE of Texas,
                                             Appellee

                     From the 81st Judicial District Court, La Salle County, Texas
                                  Trial Court No. 11-09-00041-CRL
                             Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angel ini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: September 9, 2015

AFFIRMED


           Destyn David Frederick was found guilty by a jury offelony murder and sentenced to thirty

years' imprisonment. On appeal, Frederick challenges the sufficiency of the evidence to support

his conviction, asserting: (1) the evidence is insufficient to corroborate the testimony of an

accomplice witness; and (2) the evidence is legally insufficient to support the jury's finding that
                                                                                                       t

Frederick was guilty of felony murder. We affirm the trial court's judgment.
                                                                                   04-14-00246-CR




                                           Background


       Although a grand jury returned a four count indictment against Frederick, the State elected

to proceed to trial on only one count charging Frederick with the capital murder of Israel Casas.

The State waived the death penalty.

       On the night Mr. Casas was murdered, Frederick admitted he accompanied his friends Rigo       /

Guerra and Marcus Serna to Mr. Casas's home. Guerra and Serna forced their way inside the ^

home, and Guerra shot and killed Mr. Casas. At the conclusion of the evidence, the trial court

submitted a jury charge on capital murder and the lesser included offenses of felony murder and

burglary of a habitation. The jury charge included instructions on the law of parties and the

necessity for accomplice witness testimony to be corroborated. The jury found Frederick guilty

of felony murder, and Frederick appeals.

                                      Accomplice Witness


       In his first issue, Frederick contends the evidence is insufficient to corroborate Serna's

testimony as an accomplice witness. The record is undisputed that Serna was an accomplice

witness as a matter of law, and the jury was so charged.

       Article 38.14 of the Texas Code of Criminal Procedure states:


              A conviction cannot be had upon the testimony of an accomplice unless
       corroborated by other evidence tending to connect the defendant with the offense
       committed; and the corroboration is not sufficient if it merely shows the
       commission of the offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).             We evaluate the sufficiency of

corroboration evidence under the accomplice-witoess rule by first eliminating the accomplice

testimony from consideration and then examining the remaining evidence to see if it tends to

connect the accused with the offense committed. Malone v. State, 253 S.W.3d 253, 257 (Tex.

Crim. App. 2008); Perez v. State, 437 S.W.3d 610, 616 (Tex. App.—San Antonio 2014, no pet.).
                                                                                      04-14-00246-CR



To satisfy the rule, the corroborating evidence is not required to prove the defendant's guilt beyond

a reasonable doubt by itself. Malone, 253 S.W.3d at 257; Perez, 437 S.W.3d at 616. Instead, the

corroborating evidence "must simply link the accused in some way to the commission ofthe crime

and show that rational jurors could conclude that this evidence sufficiently tended to connect the

accused to the offense." Malone, 253 S.W.3d at 257 (internal citations omitted); see also Perez,

A2>1 S.W.3d at 616. No set amount of evidence is required to satisfy the accomplice-witness rule,

and each case is judged on its own facts. Malone, 253 S.W.3d at 257; Perez, 437 S.W.3d at 616.

"[Circumstances that are apparently insignificant may constitute sufficient evidence of

corroboration." Malone, 253 S.W.3d at 257. A defendant's mere presence at the scene of the

crime, however, is insufficient to corroborate accomplice testimony. Id. "[W]hen there are two

permissible views of the evidence (one tending to connect the defendant to the offense and the

other not tending to connect the defendant to the offense), [we] defer to that view of the evidence

chosen by the fact-finder." Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). .

       In this case, Frederick voluntarily gave two statements to investigators about the burglary

and shooting. Both statements were read to the jury. In his first statement, Frederick admitted he

gave Guerra the shotgun used in the murder. Although Frederick stated he allowed Guerra to take

the shotgun because Guerra intended to purchase it, we defer to the jury's evaluation of the

credibility of Frederick's stated reason for supplying the shotgun. We simply note Frederick's

provision of the shotgun is evidence ljnking him to the commission of the crime.

       In his second statement, Frederick admitted he went with Guerra and Serna to the Casas'

home. The evidence also included the testimony of investigating officers establishing a forced

entry into the Casas' garage, anda can ofsodawas recovered from the hoodof a car in the garage.

Because DNA testing showed Frederick's DNA could not be excluded as the sourceof the DNA

found on the can of soda, this evidence also linked Frederick to the commission of the offense.
                                                                                    04-14-00246-CR




       Finally, a pair of latex gloves were found in a backyard in proximity to the shotgun used

to murder Mr. Casas. A box of latex gloves was also found in Frederick's truck, and Frederick's

DNA could not be excluded as the source of DNA on a latex glove found under the driver's seat

of Frederick's truck.


       Because the foregoing evidence tends to connect Frederick with the commission of the

crime and proves more than just his mere presence at the scene, the evidence is sufficient to

corroborate Serna's testimony.

                                      Legal Sufficiency


       In his second issue, Frederick contends the evidence is legally insufficient to support the

jury's finding that he was guilty of felony murder.

       A.      Standard of Review


       In assessing the legal sufficiency ofthe evidence to support a conviction, a reviewing court

must consider all of the evidence in the light most favorable to the verdict and determine whether,

based on that evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); Louis v. State, 393 S.W.3d 246, 249 (Tex. Crim. App. 2012) (internal citations

omitted). In applying this standard, we defer to the jury's credibility and weight determinations.

Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010). In addition, juries are permitted

"to draw multiple reasonable inferences as long as each inference is supported by the evidence

presented at trial." Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). "[A]n inference

is a conclusion reached by considering other factsand deducing a logical consequence from them."

Id. at 16. Although Frederick raises a separate challenge under the accomplice-witness rule, "[w]e

do not use the accomplice witness rule in evaluating the sufficiency of the evidence." Winfrey v.


                                                                                                      ,fv
                                                -4-
                                                                                        04-14-00246-CR




State, 393 S.W.3d 763, 770 (Tex. Crim. App. 2013). "We simply review all of the evidence in the

light most favorable to the verdict." Id.

        B.     Summary of Evidence

        Viewing the evidence in this case in the light most favorable to the verdict, Frederick

admitted he was with Guerra and Serna when Israel Casas was murdered. Serna was offered a


deal by the State and testified at Frederick's trial. After spending several hours together, Frederick,

Guerra, and Serna were sitting in Frederick's truck and discussed going to break into a house and

see what they could find. Guerra suggested they should have a gun for protection. In response to

this suggestion, Frederick stated his mother had a shotgun she was trying to sell. Frederick then

went inside his house and handed the shotgun through an air conditioning vent to Guerra, who was

waiting outside. After Guerra returned to Frederick's truck with the shotgun, Frederick exited his

house through the front door and returned to the truck.

       The three men drove to Serna's house because he had a box of shotgun shells. Upon

arriving at his house, Serna retrieved the box and handed it to Guerra, who removed three or four

shells. After returning the box to its original location, Serna went inside his house and retrieved

three pairs ofdisposable latex gloves. Upon returning to Frederick's truck, Serna handed Frederick

and Guerra a pair of the gloves to avoid leaving fingerprints anywhere. Frederick then drove to a

location near a water tower where he left his truck hidden under a carport to avoid it being traced

to their intended burglary. The three men put the gloves on before exiting the truck.

       The three men then began walking toward a light on a ranch when they encountered a

Gator, which was later described as a heavy-duty four-seater golf cart or ATV, with its key in the

ignition. After driving the Gator to a building, Guerra and Serna exited the Gator and crept to the

front of the building where they saw a woman smoking a cigarette. Although Guerra told Serna

he wanted to kill the woman, Serna told him no. Guerra and Serna then returned to the Gator, and

                                                 -5-
                                                                                     04-14-00246-CR




the three men drove to another house where all three men exited and approached the house. Either

Guerra or Frederick forced their entry into a garage from a carport. Because they did not find

anything of value in the garage, they began discussing whether to leave or go inside the house.

Serna believed Guerra grabbed a soda from a refrigerator in the garage, took a drink, and returned

it to the refrigerator. Serna did not recall Frederick drinking a soda.

       When Guerra decided to enter the house, Serna followed him while Frederick walked out

of the garage. After forcing their entry into the house, Guerra shot Mr. and Mrs. Casas. The

evidence is undisputed that Mr. Casas died as a result of a gunshot wound to his face.

       After the shots were fired, Guerra and Frederick ran out of the house and returned to the

Gator. All three men drove back to Frederick's truck and left the Gator where the truck was

previously parked. After driving around in the truck for twenty minutes, Guerra suggested they

rob a gas station. Guerra exited the truck and told them to pick him up behind some apartments.

Instead, Frederick drove to an alley behind Serna's house where they left the truck, walked to the

street, and saw multiple police cars at the gas station. As they began to return to the truck,

Frederick and Serna saw officers with a spotlight on the truck, so they ran to a different location.

Frederick called his mother and was apprehended when she arrived to pick him up. Serna was

apprehended shortly thereafter in the same general location.

       C.      Analysis

        As previously noted, Frederick was found guilty of felony murder. With regard to this

offense, the jury was charged:

                Now, bearing in mind the foregoing instructions, if you find from the
        evidence beyond a reasonable doubt that on or about June 13, 2011, in La Salle
        County, Texas, the defendant, Destyn David Frederick, either acting alone or as a
        party thereto as hereinbefore defined, did then and there commit or attempt to
        commit felony, to wit: burglary of a habitation and in the course of and in
        furtherance of the commission, or in immediate flight from the commission ofsaid
        felony, he either acting alone, or as a party thereto as hereinbefore defined,
                                                                                                  04-14-00246-CR




         committed or attempted to commit an act clearly dangerous to human life, to wit:
         shooting Israel Casas with a firearm, you will find the defendant guilty of the lesser
         included offense of felony murder.

See Tex. Penal Code Ann. § 19.02(b)(3) (West 2011). The jury charge included an instruction

on the conspiracy theory of parties which permitted the jury to find Frederick criminally

responsible for felony murder if: (1) he conspired with Guerra and Serna to commit the offense of

burglary of a habitation; (2) Guerra or Serna committed the felony of murder in furtherance of the

burglary; and (3) the murder was a felony Frederick should have anticipated as a result of carrying

out the conspiracy. Id. at § 7.02(b).

         Viewing the evidence in the light most favorable to the jury's verdict, Frederick, Guerra,

and Serna discussed committing a burglary. Frederick supplied Guerra with the shotgun to be used

during the burglary." Frederick and the other men put on gloves in an effort to conceal any

fingerprints. Frederick, Guerra, and Serna forced their entry into the Casas' garage. Frederick's

DNA could not be excluded as the source of the DNA found on the soda can left on top of the car

in the garage. By supplying Guerrawith the gun for which Serna provided shells, Frederick could

have anticipated Guerra using the gun to shoot someone. See Flores v. State, 681 S.W.2d 94, 96

(Tex. App.—Houston [14th Dist.] 1984), affd, 690 S.W.2d 281 (Tex. Crim. App. 1985) (noting

defendant could have anticipated victim being shot in furtherance of conspiracy to commit

burglary because defendant knew co-conspirator had a gun). Therefore, the evidence is legally

sufficient to support the jury's finding that Frederick was guilty of felony murder.


1In discussing the law of parties in his brief,Frederick cites Gross v. Stale, 380S.W.3d 181 (Tex. Crim. App. 2012),
and argues, "Gross's conviction and appellant's conviction both involve a legal andfactual determination of whether
they were culpable for the death of the victims as a party." Frederick notes the court in Gross held the evidence
insufficient to convict the appellant as a party. 380 S.W.3d at 188-89. In Gross, however, the shotgun used in the
murder was located in the truck the appellant was driving, but the appellant neverhanded the gun to the person who
shot the victim. 380 S.W.3d at 183. In the instant case, however, Frederick admitted he gave Guerra the shotgun used
in the offense. In addition,Serna testified about the discussionshe had with Guerra and Frederickregardingthe plan
toengage inburglaries, while no evidence ofany discussions between the appellant and the shooter was presented in
Gross.
                                                                               04-14-00246-CR



                                        Conclusion

     The trial court's judgment is affinned.

                                               Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH
