                                                                    ACCEPTED
                                                                13-14-00733-CR
                                                THIRTEENTH COURT OF APPEALS
                                                       CORPUS CHRISTI, TEXAS
                                                            7/8/2015 9:44:07 AM
                                                         CECILE FOY GSANGER
                                                                         CLERK




IN THE THIRTEENTH COURT OF APPEALS
        CORPUS CHRISTI, TEXAS   FILED IN
                                 13th COURT OF APPEALS
                              CORPUS CHRISTI/EDINBURG, TEXAS
                                  7/8/2015 9:44:07 AM
 COURT OF APPEALS NO. :            CECILE FOY GSANGER
                          13-14-00733-CR
                                          Clerk

TRIAL COURT CASE NO. : 2013CRN001341 D2



         JUAN JOSE LOPEZ, JR.,
                            APPELLANT
                  V.

         THE STATE OF TEXAS,
                           APPELLEE


            STATE’S BRIEF


               ISIDRO R. ALANIZ
               DISTRICT ATTORNEY
               49TH JUDICIAL DISTRICT

               By: David L. Reuthinger, Jr.
               Assistant District Attorney
               Webb County, Texas
               1110 Victoria St., Ste. 401
               Laredo, Texas 78040
               (956) 523-4900
               (956) 523-5070 (Fax)
               dreuthinger@webbcountytx.gov
               Bar No. 24053936
               ATTORNEY FOR THE STATE
              IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

JUAN JOSE LOPEZ, JR.

Represented by:
J. EDUARDO PEÑA
1102 Scott Street
Laredo, Texas 78040
(956) 722-9854
(956) 722-9866 (fax)
jpena84@att.net

STATE:

THE STATE OF TEXAS

Represented by:
ISIDRO R. ALANIZ
District Attorney, 49th Judicial District
By: David L. Reuthinger, Jr., Assistant District Attorney
Webb County Justice Center, 4th Floor
1110 Victoria St., Suite 401
Laredo, Texas 78040
(956) 523-4951
(956) 523-5070 (Fax)
dreuthinger@webbcountytx.gov




                                                            -2-
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................... 2
TABLE OF AUTHORITIES ........................................................................ 4
STATEMENT REGARDING ORAL ARGUMENT .................................. 7
GENERAL SUMMARY OF THE ARGUMENT ....................................... 8
GENERAL STATEMENT OF FACTS ..................................................... 10
   A. The Victim ...................................................................................... 10
   B. The Scene ........................................................................................ 13
   C. The Suspects .................................................................................... 16
   D. The Motive ...................................................................................... 18
   E. The Appellant .................................................................................. 20
ISSUES PRESENTED ............................................................................... 24
  RESPONSE TO ISSUE 1 (Sufficiency of the Evidence): ...................... 24
   SUMMARY OF ARGUMENT ........................................................... 24
   ARGUMENT AND AUTHORITY..................................................... 25
    A. Standard of Review ...................................................................... 25
    B. Application.................................................................................... 27
  RESPONSE TO ISSUE 2 (Cause of Death Instruction): ....................... 33
   SUMMARY OF ARGUMENT ........................................................... 33
   ARGUMENT AND AUTHORITY..................................................... 34
    A. The Requested Instruction Was Not Based on a Defensive Issue 34
    B. The Requested Instruction Was An Incorrect Statement of the
     Law ................................................................................................... 37
  RESPONSE TO ISSUE 3 (Motion to Suppress): ................................... 38
   SUMMARY OF ARGUMENT ........................................................... 38
   STATEMENT OF FACTS .................................................................. 38
   ARGUMENT AND AUTHORITY..................................................... 41
    A. The Procedural Posture and Scope of the Record....................... 41
    B. Standard of Review ..................................................................... 43
    C. Applicable Law ............................................................................. 44
    D. Application, Part 1: Appellant Failed to Establish Standing at the
     Suppression Hearing or Through His Offer of Proof....................... 46
    E. Application, Part 2: Appellant’s Probable Cause Argument
     Ignores the Rochas’ Waiver and the Emergency Exception ............ 51
PRAYER ..................................................................................................... 54
CERTIFICATE OF COMPLIANCE .......................................................... 55
CERTIFICATE OF SERVICE ................................................................... 55


                                                                                                        -3-
                                  TABLE OF AUTHORITIES
Cases
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) ................ 36
Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.—Fort Worth 2001, pet.
  ref'd)......................................................................................................... 27
Black v. State, 776 S.W.2d 700, 701 (Tex. App.—Dallas 1989) ............... 48
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) ........... 26, 31
Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988) ....... 44, 48
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) 43, 44, 50
Corbin v. State, 85 S.W.3d 272, 275-76 (Tex. Crim. App. 2002) .............. 44
Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992) ...................... 27
Crowell v. Housing Authority of City of Dallas, 495 S.W.2d 887 (Tex.
  1973) ........................................................................................................ 49
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ..................... 26
De La Fuente v. State, 432 S.W.3d 415, 422 (Tex. App.—San Antonio
  2014, pet ref’d) ................................................................25, 26, 27, 28, 31
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App.1996) ............... 27
Dunne v. State, 263 S.W. 608, 616 (Tex. Crim. App. 1923) ...................... 36
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)........................... 29
Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671
  (Tex. 2008) .............................................................................................. 49
Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004) ................ 42
Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) .............. 45
Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App. 1978) .................. 37
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ................... 43
Hill v. State, 585 S.W.3d 713 (Tex. Crim. App. 1979) .............................. 36
Hinojosa v. State, 433 S.W.3d 742, 756 (Tex. App.—San Antonio 2014)
   ........................................................................................................... 31, 37
Jackson v. Virginia, 443 U.S. 307, 319 (1979) .......................................... 25
James v. Fulcrod, 5 Tex. 512, 520 (1851) .................................................. 49
Jester v. State, 64 S.W.3d 553 (Tex. App.—Texarkana 2001) .................. 35
Kennedy v. State, 385 S.W.3d 729, 729 n. 1 (Tex. App.—Amarillo 2012,
  pet. ref'd) .................................................................................................. 25
Laney v. State, 117 S.W.3d 854, 862 (Tex. Crim. App. 2003)................... 52
Luna v. State, 268 S.W.3d 594, 602 (Tex. Crim. App. 2008) .................... 46
Mendoza v. State, 88 S.W.3d 236, 238 (Tex. Crim. App. 2002) ................ 36
Mincey v. Arizona, 437 U.S. 385, 392 (1978) ............................................ 52

                                                                                                              -4-
Orellana v. State, 381 S.W.3d 645, 651 (Tex. App.—San Antonio 2012) 30
Penry v. State, 903 S.W.2d 715, 748 n.30 (Tex. Crim. App. 1995) .......... 37
Pesina v. State, 949 S.W.2d 374, 382–83 (Tex. App.—San Antonio 1997,
  no pet.) ..................................................................................................... 30
Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (opinion on
  reh'g) ........................................................................................................ 27
Robinson v. State, 368 S.W.3d 588 (Tex. App.—Austin 2012) ................. 30
Showery v. State, 678 S.W.2d 103, 109 (Tex. App.—El Paso 1984)......... 37
Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001) ................ 35
State v. Henry, 25 S.W.3d 260, 262 (Tex. App.—San Antonio 2000, no
  pet.) .......................................................................................................... 42
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) ................. 43, 44
State v. Simmang, 945 S.W.2d 219, 233 (Tex. App.—San Antonio 1997) 52
State v. Wolfe, 440 S.W.3d 643 (Tex. App.—Austin 2010)....................... 42
Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) ............ 27
Villarreal v. State, 893 S.W.2d 559, 561 (Tex. App.—Houston [1st Dist.]
  1994), aff'd, 935 S.W.2d 134 (Tex. Crim. App. 1996) ........................... 48
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)....... 44, 45
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ........ 26, 29

Statutes
TEX. PENAL CODE ANN. § 7.01(a) ............................................................... 26
TEX. PENAL CODE ANN. § 7.02(a)(2) .......................................................... 26
TEX. PENAL CODE ANN. § 19.02(b)(1) ........................................................ 25
TEX. PENAL CODE ANN. § 20.04(2)(b) ........................................................ 25
TEX. PENAL CODE ANN. § 71.02 ................................................................. 25
TEX. CODE CRIM. PROC. ANN. art. 36.14 .................................................... 36
TEX. CODE CRIM. PROC. ANN. art. 38.14 ..................................................... 28
TEX. GOV'T CODE ANN. § 73.001 ................................................................ 25

Rules
TEX. R. APP. P. 41.3 .................................................................................... 25

Treatises
Dix & Schmolesky, 43 TEX. PRAC., CRIMINAL PRACTICE AND PROCEDURE
 § 43:32 (3d ed.)........................................................................................ 35




                                                                                                              -5-
Other Authorities
Appellant's Brief ....................................................................... 28, 41, 47, 51




                                                                                                  -6-
   STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.




                                       -7-
TO THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT
OF TEXAS:

         This brief is filed on behalf of Appellee, The State of Texas, by

David L. Reuthinger, Jr., Assistant District Attorney.


                GENERAL SUMMARY OF THE ARGUMENT
         Appellant’s first issue, asserting insufficiency of the evidence,

should be overruled because there was evidence to show that Appellant

was guilty under the law of parties. Evidence was presented that

Appellant’s clothing, as well as one of the weapons used to torture the

victim to death was a 2x4 board, upon which Appellant’s DNA was found

along with that of the victim and another codefendant. Appellant’s clothing

and shoes were splattered with the victim’s blood as well. The defense

conceded as much in closing. (19 RR 120).1 This was sufficient evidence

to elevate Appellant’s role above mere presence. And this physical

evidence was further corroborated by the testimony of the codefendants,

who identified Appellant as directly aiding the commission of the murder.


         Appellant’s second issue, asserting that he was entitled to what he

terms a “cause of death” jury instruction, should be overruled because this

instruction did not relate to a defensive issue, but rather to an element of


1
    The reporter’s and clerk’s records are herein cited as ([Volume] [RR or CR] [Page]).

                                                                                     -8-
the offense which the State had to prove; there is no entitlement to such

instructions, which generally constitute an impermissible comment on the

state of the evidence. Moreover, the requested instruction was legally

incorrect because it disregarded the law of parties. As such, the trial court

acted properly in refusing to give the instruction.


      Appellant’s third issue, asserting that the trial court erred by denying

his motion to suppress the evidence taken from the Napoleon Street house,

should be overruled because Appellant failed to establish that he had

standing to contest this search. Appellant gave inconsistent testimony

about his living arrangements and his right to be in the house, which was

later definitively controverted by real estate records. The trial court was

well within its discretion in finding that a local drug dealer was not the

landlord of the premises and had no authority to rent the house to

Appellant for the consideration of Appellant vending drugs. Further, the

initial entrance of the house by the police was not a warrantless search; it

was an emergency aid action intended to save the life of the victim. Once it

became clear that the victim was deceased, consent to search was obtained

from the true owners, eliminating the need for a warrant.

      Accordingly, the conviction should be affirmed.




                                                                         -9-
                 GENERAL STATEMENT OF FACTS


                              A. The Victim

      Ana Vasquez was riding in the family car on August 29, 2013. Her

husband, Ricardo Vasquez, was driving her to the school where she

worked as a teacher. (17 RR 27-28). It was the usual family routine; Mr.

Vasquez would drive Ana to work and their son to his grandmother’s

house which was next to the school that their son attended. (17 RR 28).

Then Ricardo would go to work. But today things would be a little

different, Ricardo explained to Ana as he dropped her off. Today, Ricardo

would be bringing his brother-in-law with him to work. (Id.). Ana was sure

that this arrangement was fine and that she would be seeing her husband

later. (Id.) But as she watched Ricardo drive off in the family’s Nissan

Rogue at 7:30 a.m., she was unaware that this would be the last time that

she would ever see him alive. (Id.).

      Although Ana was a busy teacher, she usually called Ricardo during

lunch or during the teachers’ planning block. (17 RR 29). That day, the

school was hectic and there was a meeting during the planning block, so

Ana did not get to call her husband until 4:00 p.m. (Id.) When she took her


                                                                     - 10 -
phone out to do that, she saw that Ricardo’s mother had made several calls

and text messages to Ana’s phone during the day. As Ana read through the

modern-day telegrams, she knew that “something was wrong. He hadn’t

responded or answered her calls all day, and she wanted to go check on

him and see if something was wrong.” (Id.).

      Ana began frantically calling her husband to no avail; having no

vehicle, Ana called her mother to pick her up from the school. (Id.). She

testified, “I kept calling him. I kept calling him. And he wouldn’t answer

the phone. The phone was turned off or something, because it would go

straight to voice mail, and from there we knew something was happening.

So we called the police.” (Id.).

      Ana’s mother took her to Ana’s home, and upon entering, Ana knew

something was wrong. Ricardo’s shirt and clothes that he had been

wearing earlier that day were lying in the bedroom. (17 RR 30). And “there

were other things in the kitchen that were moved or out that weren’t there

[that morning].” (Id.). Ana and her mother called the police to file a

missing-person report at “about 5:30 or 5:15 [p.m.]” (17 RR 30-31).

      At around 6:00 p.m., deputies from the Webb County Sheriff’s

Office arrived to conduct the missing-person investigation. Ana’s heart

sank further as they informed her that the family’s Nissan Rogue was at a


                                                                      - 11 -
wrecker lot. (17 RR 31). The deputies offered to take Ana to the lot so that

she could verify the vehicle was hers, which she did. (17 RR 31-32).




       The Vasquez family seemed normal, but as Ana explained to the

jury, Ricardo had problems. Ricardo was a recovering drug addict who was

a month out of rehab. (17 RR 34). As far as Ana could tell, Ricardo was on

the mend and doing very well. (Id.).

       But Ricardo had one foot still in the darkness. Ana explained that

just before the fateful events on August 29, 2013, Ricardo “had just said

that a man he knew approached him to help him out to bring back his son

from Nuevo Laredo [in Mexico]. And I told him[,] just don’t get involved.

You don’t have any means to help him. And I told him, just don’t do it.

Don’t be involved with that. And he said, okay, okay, I won’t.” (17 RR 33-

34).

       Ricardo honored his wife’s plea—and paid with his life.




                                                                       - 12 -
                               B. The Scene

      Laredo Police officer Gustavo Sotelo was on routine patrol in a

police cruiser driving through South Laredo, when a dispatch call from 911

came in at 7:00 p.m. (17 RR 38). It was a report of an assault in progress at

a house known for drug transactions. (17 RR 37-38). He turned onto

Bismark Street, then onto Napoleon Street to the site that had been called

in to 911. (17 RR 39). At that time, he “observed one male subject like,

heavy-set[,] light-completed[,] crew cut. As soon as he saw me, he made

his way going north through the houses.” (Id.; 17 RR 50). Officer Sotelo

brought his cruiser around to that house and disembarked to follow the

man on foot, but was unable to track him. (17 RR 40).

      Officer Sotelo then turned to the house in question, located at 2920

Napoleon Street Rear. (17 RR 42). It was owned by the Rocha family. (17

RR 53). The screen door of the house was unlocked, so Officer Sotelo

knocked on the front door. It opened by itself. (17 RR 44, 46, 48). There,

on a mattress in front of him, was the body of Ricardo Vasquez. “It was

face up, gagged, and his hands were tied with an extension cord [and]

bloody. … He was wearing shorts, I believe, blue jeans, shorts, and a red

T-shirt … boxers tucked a little bit out. And he was wearing a multicolored

shirt, heavy-set, light completed, crew cut” (17 RR 49). After sweeping the


                                                                       - 13 -
rest of the house, Officer Sotelo called in Officer Ugarte and Detective

Carmona to triage the crime scene. (17 RR 49).

      They were joined by Investigator Andy Perez, who knew this house

well; it was “known to [be used to] sell drugs in that neighborhood. And

[he had] personally stopped vehicles leaving there[,] … intervened in drug

transactions and also search warrants [there] ….” (17 RR 56, 58). On this

occasion, the officers had obtained the consent of the owners of the

Napoleon Street house—Ricardo Rocha and his wife, Zenaida Sanchez

Rocha—to begin searching the house for evidence after it had been

cleared. (18 RR 17-19).

      The entrance to the residence was darkened by bloody footprints that

led into a room with a table, a bloody wooden 2x4 board, and a blood-

soaked mattress on which Ricardo’s body lay. (17 RR 93, 98-99).

Elsewhere in the house was painter’s tape, also bloody. (Id.; 17 RR 108)

The officers carefully documented the rufous shoe impressions throughout

the house. (17 RR 100, 104). Outside the house was a blood-soaked rag.

(17 RR 104-05).

      A full autopsy of Ricardo Vasquez’s body identified lacerations and

bruises, copious evidence of blunt-force trauma. (17 RR 139-44). There

were also stab wounds. (17 RR 146). His hands had been bound with an


                                                                    - 14 -
electrical cord—so tightly that the cord had to be cut. (17 RR 200). The

only conclusion was that Ricardo was tortured to death. (17 RR 155). His

death was caused by multiple sharp force and blunt force injuries. (17 RR

146). However, shortly before his death, he had taken heroin—as indicated

by the short-lived opiate metabolites which were detected in his blood. (17

RR 149). The house was scattered with needles of the type used by heroin

addicts. (18 RR 86).

      The reason why the mattress was so bloody was that Ricardo

Vasquez was still alive when his face was sheared by a sharp object. Each

pump of his heart then splattered blood on that bed. (17 RR 151). And one

of the lacerations cut the jugular vein of his neck—causing the curtain on

Ricardo’s life to fall within fifteen minutes. (17 RR 157, 152). Officer

Gerardo Gonzalez swabbed the bloody mattress, the 2x4 board, and the

blood-stained floor for additional DNA testing. (17 RR 124-26).

Fingerprints were also lifted from virtually every moveable object at the

scene—soda cans, bottles, cups, anything. (18 RR 43-45, 83). The mattress

itself was taken to the city warehouse for storage and subsequent testing,

including DNA testing. (Id.; 18 RR 57). The bloody shoe impressions were

likewise sampled and sent to the Bexar County crime lab. (18 RR 84).




                                                                       - 15 -
      Detective David Carmona turned his attention to that 2x4 board; it

was leaning in a corner next to Ricardo Vasquez’s body. (18 RR 64). The

officers suspected that this board was a weapon, an instrument of torture;

though some of Ricardo’s wounds were consistent with the use of sharp

objects, the board was the only weapon found at the scene. (18 RR 65).

The board was also tested for DNA; but recovered DNA would not be of

much use without having some suspects to compare it to.




                             C. The Suspects

      While Officer Sotelo and company were searching the grisly torture

chamber, Investigator Samuel Reyes was also on scene, interviewing

witnesses, including a member of the Rocha family—who fingered Raul

Alegría as being involved. (17 RR 71). Alegría was the man who had

scrambled away from the house when Officer Sotelo arrived. (7 RR 53).

Investigator Reyes confronted Alegría, whose nervousness gave him away;

Alegría was thereafter transported to the police station to be interviewed.

(17 RR 75). Alegría’s shirt, jeans, and white Lacrosse shoes were sent to

the DNA lab. (17 RR 181-83); (18 RR 24). The officers also swabbed his

mouth for DNA with his consent. (17 RR 38-39).




                                                                     - 16 -
      Officer Sotelo found no other potential witnesses besides the man

who ran north when he parked his cruiser; even the local ice-cream vendor

saw nothing. (17 RR 41). The officer did remember seeing a black Dodge

Avenger with a female driver and male passenger leaving the area as he

arrived, and he suspected that it had driven out from the house while

Ricardo’s body lay in repose. (17 RR 52).

      In conjunction with the other officers, Officer Carlos Hernandez also

canvassed the neighborhood looking for witnesses. (17 RR 77). It was now

after midnight, 12:30 to be exact; at that time, a woman from the

neighborhood, Olga Martinez, approached him; she was concerned by the

police activity. (17 RR 79). Moreover, she was looking for a family

member that frequented the house where Ricardo Vasquez had died. She

claimed that a “family member was a known drug user that would

frequently go out there to shoot up. And because the crime scene was in

that vicinity, she was just worried [about] making sure that he was not

involved.” (17 RR 79-80). That family member was her brother:

Candelario “Cande” Hernandez, a known heroin user who frequently shot

himself up at that house. (17 RR 80). She stated that Cande had just been at

the house at 12:30, just a moment before she approached Officer

Hernandez. (Id.).


                                                                      - 17 -
      Testifying, Ms. Martinez explained that her brother had asked her

for a ride to a house on Napoleon Street earlier that day. (17 RR 117). She

dropped him off at 2920 Napoleon. (Id.). And she had just returned to

where she had left him because of the news that someone had been hurt

there. (Id.). According to Ms. Martinez’s mother, Cande had left the

mother’s house earlier in the evening, 30 minutes before news of the

homicide broke. (17 RR 118-19, 121). She confirmed that, sadly, Cande

was another drug user. (17 RR 120).


                              D. The Motive

      So far, the list of suspects included Cande and Alegría. The police

searched their intelligence to finger other persons with a connection to this

dungeon of a house who could have been there at the time. A series of

missing-persons reports were filed concerning people with such

connection. One of them was Abelardo Rocha, III—of the same Rocha

family who owned the death chamber at 2920 Napoleon. (17 RR 206).

Checking customs records and security video at the Mexican border, the

police were able to confirm that Abelardo Rocha, III crossed into Mexico

on August 7, 2013 at approximately 8:37 p.m., along with some other men.

(17 RR 209). That was a little more than two weeks before Ricardo

Vasquez was murdered.

                                                                       - 18 -
         Detective Richard Reyes interrogated Alegría about the role of

Abelardo Rocha, III, and Alegría confirmed that “the motive for the

murder [of Ricardo Vasquez] was extortion. He explained that a group of

people were being extorted for money and a vehicle in exchange for

locating a family member who was kidnapped.” (17 RR 214). Abelardo

Rocha, III was that family member. (Id.).

         So the pieces came together: Abelardo Rocha, III had been

kidnapped and forcibly taken into Mexico by drug cartel goons who were

owed money. (Id.; 17 RR 210). Said goons demanded money and a vehicle

from the Rocha family as ransom. (17 RR 214). Recall the testimony of

Ricardo Vasquez’s wife Ana—just before he was murdered, Ricardo “had

just said that a man he knew approached him to help him out to bring back

his son from Nuevo Laredo [in Mexico].” (17 RR 33-34). Ana demanded

that Ricardo refuse to comply with that request; she begged her husband to

stay out of the underworld he had fought so hard to leave.

         The man who had made the request was Abelardo Rocha, Sr., also

known as “Pantera”2—the uncle of the abductee, and the father of

Abelardo Rocha, Jr. “Pantera” believed that Ricardo Vasquez owed money

to him from the time in his life that he was a drug user. (17 RR 217). At


2
    Or “the panther.”

                                                                    - 19 -
Ana’s insistence, Ricardo Vasquez had rejected the loan modification

agreement—rescue the nephew—so “Pantera” decided to foreclose.

According to the detective, the trustee’s sale was conducted as follows:

Pantera “directed a group of men to torture and kill the victim, Ricky

Vasquez. … Alegría explained that Rocha, Sr., brandished a buck knife

and slashed the victim’s throat and cut off a portion of his ear. … During

the torturing, Mr. Alegría stated that Rocha, Sr., said, this is probably what

they’re doing to my nephew in Mexico right now.” (17 RR 214-17).

       Cande Hernandez was also interviewed, and he gave gruesome

details about how the execution was carried out, and how the victim had

tried to be escape—and that Cande struck the victim with the 2x4 board,

which the victim took and tried to defend himself with—in futility. (18 RR

117). Thereafter, Pantera promptly jumped bail and fled into Mexico. (17

RR 218). But the police were determined to find every one of his

henchmen that they could.




                             E. The Appellant

      The police investigation in this case was so thorough that every

bloodstained footprint in the Napoleon house had to be accounted for and

checked against the known associates of Pantera. A forensic scientist

                                                                        - 20 -
confirmed that a red Nike shoe which belonged to the Appellant, Juan Jose

Lopez, Jr., was responsible for one of the bloody footprints in the

Napoleon house. (18 RR 32; 19 RR 51-52).

        The police procured those Nike shoes worn by the Appellant on the

day of the murder. (18 RR 91). They had blood on them, blood that

matched the DNA of the victim, Ricardo Vasquez. (18 RR 159-60);

(State’s Ex. 179). The same was true for the rest of Appellant’s clothing:

his shirt and shorts (18 RR 180-82). Appellant’s shorts also had his own

DNA on them. (18 RR 183). DNA testing on the 2x4 board found that it

matched three people: Cande, who admitted to striking the victim with it;

the victim, who was so struck; and the Appellant. (18 RR 169, 172-173,

211).

        During his interview, the Appellant admitted that he, in the words of

the officer, “was at the home of [Abelardo or] Abel Rocha, Sr., [also

known as] Pantera” around the time of the murder. (18 RR 105). The

Appellant claimed that his business with “Pantera” was limited to yard

work. (Id.).

        Yet the Appellant had the victim’s blood all over him, and the

Appellant’s DNA was on one of the murder weapons. Accordingly, the

Appellant was indicted for the murder and aggravated kidnapping of Mr.


                                                                       - 21 -
Vasquez, and for engaging in the organized criminal activity of murdering

Mr. Vasquez alongside Alegría, Candelario Hernandez, Abel Rocha, Sr.

(“Pantera”), Abel Rocha, Jr., and Sergio Garcia–all of whom were also

indicted for the same three crimes.

      Naturally, the Appellant sought to suppress the physical evidence—

the only admitted non-accomplice evidence that tied him to the scene.

During the motion to suppress hearing, Appellant identified Abel Rocha,

Sr., a/k/a Pantera, as the one who permitted Appellant to stay there. (13 RR

25). There was no evidence to establish that Pantera was an owner or lessor

of the house, or that he had any authority to lease the house to Appellant

on behalf of the actual owners. Appellant did not know where Pantera

lived, or how he could have given Appellant permission to stay at the

Napoleon house. (13 RR 25). Appellant further admitted that the

‘consideration’ for this arrangement was that Appellant would sell drugs

out of the Napoleon house. (13 RR 26). Appellant claimed that Pantera

was the owner of the house. (13 RR 26). Nevertheless, he admitted that

the actual owners, Ricardo Rocha and Zenaida Sanchez Rocha, never told

him he could stay there. (13 RR 27). Appellant otherwise had no lease or

title interest in the house, and he admitted that he also stayed at another

house. (13 RR 25). And after the suppression hearing, the State admitted


                                                                      - 22 -
Webb County Appraisal District records proving that Ricardo and Zenaida

Rocha, not Pantera, were the owners—and Appellant was just a trespasser

without a place to stay. (18 RR 40).

      However, after the trial, the jury gave the Appellant a place to stay:

prison. Appellant was convicted of the three counts and given 50 years to

serve for the murder, 17 for the aggravated kidnapping, and 10 for the

criminal combination. (1 CR 500). Rent for said living arrangements was

assessed as a $30,000 fine. (Id.). Appellant now claims that the evidence

was legally insufficient to tie him to these offenses, that the jury charge

was erroneous, and that all of the evidence from the Napoleon Street house

should have been suppressed. The State responds as follows.




                                                                      - 23 -
                         ISSUES PRESENTED


RESPONSE TO ISSUE 1 (Sufficiency of the Evidence):

      Whether the evidence is legally sufficient to sustain the

convictions for murder, aggravated kidnapping, and engaging in

organized criminal activity?


                     SUMMARY OF ARGUMENT

      Appellant’s challenge to the sufficiency of the evidence hinges on

his claim that there was no evidence that Appellant Juan Jose Lopez, Jr.

committed the crime as a party. However, all that was required to establish

Appellant’s guilt was evidence establishing his presence plus proof of

suspicious activity from which a rational juror could infer a common plan

to kidnap and murder Ricardo Vasquez. That the victim’s blood was all

over Appellant’s clothing certainly is evidence of suspicious activity. As

such, a rational juror could have found that the Appellant committed the

offenses against Ricardo Vasquez as a party thereto.




                                                                     - 24 -
                      ARGUMENT AND AUTHORITY
       Appellant was charged in three counts with committing the murder

of Ricardo Vasquez by intentionally or knowingly causing his death, TEX.

PENAL CODE ANN. § 19.02(b)(1); with the aggravated kidnapping of the

same victim by intentionally or knowingly abducting him by interfering

with his liberty through the use of deadly force, Id. § 20.04(2)(b); and with

engaging in organized criminal activity by committing the said murder in a

combination with the codefendants, Id. § 71.02.



                             A. Standard of Review
       In reviewing legal sufficiency, the Court should consider all the

evidence, both direct and circumstantial, in the light most favorable to the

verdict to determine whether any rational trier of fact could have found all

the essential elements of the offense beyond a reasonable doubt. De La

Fuente v. State, 432 S.W.3d 415, 422 (Tex. App.—San Antonio 2014, pet

ref’d) 3 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Brooks v.



3
 This case was transferred from the Fourth Court of Appeals to the Thirteenth Court of
Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas.
TEX. GOV'T CODE ANN. § 73.001. As such, this Court should respectfully apply the
precedent of the transferring court. TEX. R. APP. P. 41.3; Kennedy v. State, 385 S.W.3d
729, 729 n. 1 (Tex. App.—Amarillo 2012, pet. ref'd).

                                                                                - 25 -
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It is the jury's role to

resolve conflicts in the testimony, assess credibility and weigh the

evidence, and draw reasonable inferences from the basic facts to the

ultimate facts. Brooks, 323 S.W.3d at 899. In conducting a legal

sufficiency review, the Court should defer to the jury's assessment of the

credibility of the witnesses and the weight to be given to their testimony,

rather than substitute its own judgment for that of the jury. Id.; Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, the Court

should resolve any inconsistencies in the evidence in favor of the jury's

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).


      A person may be convicted as a party to an offense if the offense is

committed by the conduct of another for which he is criminally

responsible. TEX. PENAL CODE ANN. § 7.01(a). A person is criminally

responsible for the conduct of another if “acting with intent to promote or

assist the commission of the offense, he solicits, encourages, directs, aids,

or attempts to aid the other person to commit the offense....” Id. §

7.02(a)(2); De La Fuente, 432 S.W.3d at 422. Mere presence of a person at

the scene of a crime either before, during or after the offense, or even flight

from the scene, without more, is insufficient to sustain a conviction as a

party to the offense; however, combined with other incriminating evidence


                                                                         - 26 -
it may be sufficient to sustain a conviction. De La Fuente, 432 S.W.3d at

423 (citing Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App.

1985)). In determining whether a defendant participated as a party in the

commission of an offense, the jury may consider events that occurred

before, during or after the offense, and may rely on acts that show an

understanding and common design. De La Fuente, 432 S.W.3d at 423

(citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996)

(opinion on reh'g); Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.—Fort

Worth 2001, pet. ref'd) (agreement to act together in a common design is

usually proven by circumstantial evidence)).


      Therefore, the test for legal sufficiency to sustain a conviction as a

party can be simply stated as some evidence from which a rational juror

could deduce Appellant’s “presence combined with other suspicious

circumstances … sufficient to tend to connect the defendant to the crime.”

De La Fuente, 432 S.W.3d at 421 (citing Dowthitt v. State, 931 S.W.2d

244, 249 (Tex. Crim. App.1996); Cox v. State, 830 S.W.2d 609, 611 (Tex.

Crim. App. 1992)).


                             B. Application
      Appellant concedes that he was implicated in the offense by

codefendants Sergio Garcia and Raul Alegría, and that their accomplice

                                                                      - 27 -
statements were corroborated by the Appellant’s DNA being present on the

2x4 board along with that of the victim and codefendant Cande Hernandez,

by the victim’s DNA being present on Appellant’s clothing and shoe, and

by the bloody shoe impression at the crime scene matching Appellant’s

shoe. (Ant. Brief at pp. 15-16) (citing 17 RR 213-14; 18 RR 32, 180-83,

190-95; 19 RR 51-52).4 But Appellant argues that this evidence establishes

only his presence at the scene, and not necessarily his participation in the

murder and kidnapping. He argues that since DNA can be transferred by

touch, it is possible that he just touched the victim at some point before the

incident—never mind that that the DNA in question came from blood

stains. The victim’s blood stains. (18 RR 180-82).

       So while Appellant concedes the presence of the victim’s blood on

his clothing and shoe, he downplays the sanctity of that blood. (Ant. Brief

at pp. 15). Appellant’s argument is, essentially, that the blood-drawn

inference of his active participation in the murder and kidnapping is no

stronger than a competing inference that he just stood there as a bystander

4
  Appellant has not mentioned the accomplice-witness rule, but the State will. It
provides that Garcia and Alegría are accomplices as a matter of law; accordingly, their
testimony is insufficient to sustain the conviction absent corroboration. TEX. CODE
CRIM. PROC. ANN. art. 38.14; De la Fuente, 432 S.W.3d at 421. The required
corroboration can be provided by the same evidence of suspicious circumstances that
proves up the participation of a party in the office. See id. Here, the corroborating
evidence is the victim’s blood splattered on the Appellant’s clothing and the DNA
evidence on the 2x4 board connecting Appellant to that weapon. (18 RR 170-174).



                                                                                - 28 -
while everybody else kidnapped and tortured Mr. Vasquez, whose blood

then squirted him by chance.5 But the weighing of competing inferences is

for the jury, and is not part of legal sufficiency review. Jackson, 443 U.S.

at 326 (“When the court is faced with a record of historical facts that

supports conflicting inferences, it must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such

conflicts in favor of the prosecution”). They found him guilty, a finding

entitled to deference on appeal. Brooks, 323 S.W.3d at 899. In so doing,

the jury drew a reasonable inference from the presence of the victim’s

blood on Appellant’s clothing that he acted in a common design with the

other codefendants to kidnap and kill Ricardo Vasquez. See id.; cf. De la

Fuente, 432 S.W.3d at 422-23 (defendant’s unusual behavior in driving to

murder scene, driving away from dying victim, and driving to ranch

hideout was evidence of such common design).

       Therefore, the only way Appellant could succeed is if absolutely no

rational juror could draw an inference from the presence of the victim’s

blood on his clothing to the conclusion that he participated in the murder.

On the contrary, the presence of the victim’s blood is precisely the type of

5
  In support of this red herring, Appellant cites inapposite opinions which did not
address party liability at all. (Ant. Brief at pp. 19-20) (citing Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007); Evans v. State, 202 S.W.3d 158 (Tex. Crim.
App. 2006)).

                                                                                 - 29 -
suspicious circumstance that establishes his participation; in fact, it is

enough to establish that he is guilty as the principal actor. Orellana v.

State, 381 S.W.3d 645, 651 (Tex. App.—San Antonio 2012) (blood stain

in    appellant’s     vehicle      matched       victim,     establishing      principal

responsibility); Robinson v. State, 368 S.W.3d 588 (Tex. App.—Austin

2012) (same result when victim’s blood in appellant’s vehicle was

combined with appellant’s possession of murder weapon and bloody

clothes, distinguishing an inapposite case).6

       Finally, Appellant points out the confession of Candelario “Cande”

Hernandez that he struck the victim with the 2x4 board. (18 RR 117).

Appellant argues that Cande’s admission that he was a primary actor

absolutely excludes the Appellant from both principal and party

responsibility for the offense. This is a non sequitur, as illustrated by the

testimony that not all of the victim’s wounds were caused by that 2x4




6
   Appellant’s argument might hold water if the evidence established that his
participation came after the commission of the offense, such as if he had disposed of
evidence afterwards, and there was no evidence of any previous agreement for the
Appellant to participate in the offense before or while it was committed. Pesina v.
State, 949 S.W.2d 374, 382–83 (Tex. App.—San Antonio 1997, no pet.) (acquitting
where there was no evidence of an agreement, and the jury charge restricted theory of
party liability to post-crime participation). But this is not such a case; the Appellant’s
DNA was mixed with the victim’s DNA on a murder weapon, the 2x4 board, which
was there at the scene next to the body of the deceased. (18 RR 170-74).

                                                                                   - 30 -
board,7 and the fact that Appellant’s DNA was found on the 2x4 board

along with that of the victim and codefendant Hernandez. Hernandez’s

confession cannot dispel the inference that Appellant was either a primary

actor or a party to the offenses. Hinojosa v. State, 433 S.W.3d 742, 756

(Tex. App.—San Antonio 2014) (holding jury was free to choose between

accomplices’ conflicting accounts of aggravated kidnapping to impose

party and principal liability among the three actors). Since the jury had the

power to choose to believe or disbelieve the testimony of any witness, it

was free to accept or disregard Candelario Hernandez’s confession in

whole or in part, and to decide how to square it with the DNA evidence to

assign party or principal liability to both Hernandez and Appellant. See id.;

De la Fuente, 432 S.W.3d at 423 (citing Brooks, 323 S.W.3d at 899). Quite

simply, the Appellant has not shown any authority for his argument that

Hernandez’s confession absolves him of party liability. There is none.




7
  Appellant seems to be positing that the conviction hinged on the board being the one
and only murder weapon; this is not so. The victim sustained both blunt-force and
sharp-force wounds. (17 RR 143-44). According to an expert witness, only the former
could have been caused by the 2x4 board. (17 RR 140-44). The Appellant agrees. (Ant.
Brief at p. 9). And the indictment did not specifically plead that the either the board or a
sharp object was the sole cause of Mr. Vasquez’s death. (1 CR 77). It alleged that he
died because one or more of the codefendants struck “him with a blunt object causing
blunt trauma to his body, and/or head, and/or face, and/or [caused] a laceration to his
neck[.]” (Id.) Similarly, the aggravated kidnapping count alleged the deadly weapon
exhibited was “a blunt object and/or a sharp object….” (Id.).

                                                                                     - 31 -
      As such, the State respectfully requests that Appellant’s first point of

error, concerning legal sufficiency, be overruled.




                                                                        - 32 -
RESPONSE TO ISSUE 2 (Cause of Death Instruction):

      Whether the trial court committed reversible error by refusing

the defendant’s requested jury instructions which would have

included an affirmative submission of the defensive theory of the cause

of death of the alleged victim in the jury charge?


                      SUMMARY OF ARGUMENT

      Cause of death and identity are not defensive issues, but rather, are

elements of the State’s case. As such, the Appellant was not entitled to the

requested instruction, and the trial court did not err by declining to give the

instruction. Moreover, Appellant’s requested instruction was legally

incorrect because it disregarded the law of parties. The trial court correctly

declined to charge the jury on it.




                                                                         - 33 -
                    ARGUMENT AND AUTHORITY
      Appellant urges that he was entitled to a jury instruction on the issue

of who caused the victim’s death. His theory, as stated in the charge he

requested, is that “if you [the jury] find from the evidence, that Abel Rocha

caused the death of Ricardo Vasquez by causing a deep laceration to his

neck with a sharp instrument, you shall acquit Juan Jose Lopez, Jr., of the

charge of murder as alleged in Count I of the indictment.” (Ant. Brief at p.

27) (quoting 1 Supp. CR 96-97). Appellant was not entitled to the

instruction for at least two reasons.


  A. The Requested Instruction Was Not Based on a Defensive Issue
      Though Appellant describes this as a “cause of death” instruction,

the gist of it is an instruction on identity of the primary actor. Either way,

neither the identity of the primary actor nor the cause of death are

defensive issues; rather, they are essential elements of the State’s case. To

convict Appellant of murder, the State had to prove the facts alleged in

count I of the indictment: “JUAN JOSE LOPEZ, JR. [and the

codefendants] … did then and there … cause the death of … Ricardo

Vasquez … by striking him with a blunt object causing blunt trauma

to his body, and/or head, and/or face, and/or causing a laceration to

                                                                        - 34 -
his neck[.]” (1 CR 77) (emphasis added). The requested instruction

touched on both bolded elements of the offense.


      Since “the 1974 Penal Code was enacted, the Court of Criminal

Appeals … appears to have taken the position that a defense or affirmative

defense must be defined in the Penal Code to warrant a separate instruction

presenting it to the jury.” Dix & Schmolesky, 43 TEX. PRAC., CRIMINAL

PRACTICE AND PROCEDURE § 43:32 (3d ed.). For example, alibi “was not

an enumerated defense in the penal code and the issue was adequately

accounted for within the general charge to the jury. Because alibi was

merely a negation of elements in the State's case, its inclusion would be

superfluous, and in fact, would be an impermissible comment on the

weight of the evidence.” Id. (quoting Solomon v. State, 49 S.W.3d 356, 368

(Tex. Crim. App. 2001)) (emphasis added).


      Appellant’s requested instruction simply affirmatively negates two

of the elements of the offense, identity and manner/means; it is therefore

not a defensive-issue instruction of the type he would have been entitled to.

See Jester v. State, 64 S.W.3d 553 (Tex. App.—Texarkana 2001). The

instruction is really a comment on the weight of the evidence, assigning

magical acquitting properties to one particular reconciliation of the



                                                                       - 35 -
evidence; such instructions are prohibited by statute. Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994); see TEX. CODE CRIM. PROC.

ANN. art. 36.14 (“the judge shall … deliver to the jury … a written charge

… not expressing any opinion as to the weight of the evidence, not

summing up the testimony, [nor] discussing the facts….”). There “is no

better established rule than [this]: ‘[it] is not proper for the court to single

out particular facts or specific parts of the testimony and charge thereon.

To do so would be instructing on the weight of the evidence.’” Dunne v.

State, 263 S.W. 608, 616 (Tex. Crim. App. 1923); see Mendoza v. State, 88

S.W.3d 236, 238 (Tex. Crim. App. 2002).


      Moreover, the instruction is not an alternative theory as to how

Ricardo Vasquez died versus the indictment, and no other explanation for

the victim’s death other than those in the indictment was suggested by the

evidence. So even assuming arguendo that Appellant’s key case, Hill v.

State, 585 S.W.3d 713 (Tex. Crim. App. 1979), is still good law, its

superseded pre-Code rule would nevertheless be “inapplicable to the

instant case. The refusal of a defendant's requested instruction is not error

where the requested instruction is merely an affirmative submission of a

defensive issue which denies the existence of an essential element of the

State's case.” Penry v. State, 903 S.W.2d 715, 748 n.30 (Tex. Crim. App.


                                                                          - 36 -
1995) (citing Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App.

1978)).


B. The Requested Instruction Was An Incorrect Statement of the Law
      Further, the instruction was incorrect because it ignores the law of

parties. Even if Abel Rocha “caused the death of Ricardo Vasquez by

causing a deep laceration to his neck with a sharp instrument,” it does not

necessarily follow that the jury had to then “acquit [Appellant] Juan Jose

Lopez, Jr., of the charge of murder[.]” Rather, Appellant could have been,

and was, convicted as a party to the murder, kidnapping, and combination.

Hinojosa, 433 S.W.3d at 756. There is no entitlement to an incorrect

instruction. Showery v. State, 678 S.W.2d 103, 109 (Tex. App.—El Paso

1984).

      As such, the State respectfully requests that the second part of

Appellant’s second point of error be overruled.




                                                                     - 37 -
RESPONSE TO ISSUE 3 (Motion to Suppress):

      Whether the trial court erred in finding that the appellant did

not have standing to complain of the warrantless search of the home

where the police found the body of the alleged victim and in thus

denying the appellant’s motion to suppress evidence and allowing the

State to introduce illegally obtained evidence?


                     SUMMARY OF ARGUMENT

      Appellant failed to establish that he was given permission to stay at

the residence by its owners, or that the person who allegedly permitted him

to stay at the house any authority whatsoever to do so. As such, Appellant

did not have standing to challenge the search and the trial court correctly

so held. Moreover, the initial police entry was done under the emergency-

aid doctrine, no warrant was required for this, and consent was obtained

from the owners after the emergency was over.


                       STATEMENT OF FACTS
      Appellant filed a motion to suppress the evidence taken from the

Napoleon Street house on January 23, 2014. Appellant then filed a motion




                                                                     - 38 -
to continue the setting on the suppression motion on August 21, 2014, to

which the State agreed. (1 CR 52, 246-50).


   A cursory hearing on the motion, limited to the issue of standing only,

was held on September 11, 2014, and recorded in volume 13. The trial

court expressly limited this hearing to the question of standing. (13 RR 21-

22). Only the Appellant was permitted to testify, after which testimony the

trial court found that Appellant did not have standing to challenge the

search. An order denying the motion to suppress was entered accordingly.

(1 CR 330).


   On October 16, 2014, Appellant filed an offer of proof in open court,

acknowledging that the trial court had limited the scope of the September

11 hearing to standing only, but re-urging the motion on the issue of

probable cause, and attaching Officer David I. Carmona’s complaint

affidavit as proof. (1 CR 334-503). This colloquy followed:


       MR. PENA (Appellant’s counsel): … The Court found no standing,
   and we just stopped right there. And so, for purposes of appeal, Your
   Honor, I need to have something to show whether or not there was
   probable cause and exigent circumstances to justify a warrantless search
   of the premises.
      THE COURT: Well, my gut instinct tells me we needed to have an
   evidentiary hearing on that portion as well.




                                                                      - 39 -
     MR. SOSA [Counsel for codefendant Sanchez]: We join in that,
   Your Honor.

     THE COURT: If I remember correctly, whatever we did in court
   was simply on the standing issue.

         MR. PENA: Correct.
      THE COURT: But if you’re telling me now that there are other
   [bases] for the motion to suppress, I need to have a full evidentiary
   hearing … on that.

       MR. PENA: Well, the [bases] for the motion to suppress was lack of
   probable cause and lack of exigent circumstances. And the [complaint]
   affidavit states the facts upon which the police relied. They claimed that
   the anonymous phone call provided probable cause for the entry of the
   [Napoleon house] and exigent circumstances. … [The hearing] was just
   basically on the standing issue. We didn’t get into any of the probable
   cause … actually, there was no search warrant initially, Judge. And, in
   my motion [to suppress], I alleged that the police entered the premises
   at 2920 Napoleon Street Rear, based on the anonymous phone call
   telling that, that the person that made the anonymous phone call and
   seen somebody being dragged into this home and being tortured; and,
   based on that evidence, on that call, they went prepared to investigate
   and went into the home and discovered the body [of Mr. Vasquez].
(14 RR 8-11).


   The State’s counsel argued that a hearing would be moot because

Appellant had not introduced any new evidence to support a suggestion

that he had standing. (Id.) Agreeing, the Appellant stood on his offer of

proof:


      MR. PENA: … And, in fact, the Court heard evidence of that and
   found that the Defendant doesn’t have standing. And so, this [offer of
   proof] is really just to preserve the issue for appeal, Your Honor. (14
   RR 13).

                                                                       - 40 -
    The trial court ordered the affidavit admitted as an offer of proof on

their motion to suppress. (1 CR 333; 14 RR 7). The State subsequently

filed a business records affidavit and accompanying records from the

Webb County Appraisal District, establishing that the Napoleon house was

owned not by “Pantera,” but by Ricardo Rocha and Zenaida Sanchez

Rocha; this was true at all times in 2013, up until April of 2014.8 (1 CR

310-314). The records were admitted at trial. (18 RR 40).




                     ARGUMENT AND AUTHORITY

            A. The Procedural Posture and Scope of the Record
    The Appellant’s Brief asserts that, because he was the sole witness at

the cursory standing-only hearing on September 11, 2014, “Appellant’s

testimony was not contradicted or impeached, and therefore he established

that he had a subjective expectation of privacy in a place which society

recognizes as reasonable, namely a home.” (Ant. Brief at p. 28). So there is

an initial question: whether the Appellant can slam the door shut as of

September 11, 2014, and exclude the evidence as later developed at trial,




8
  The Rochas were foreclosed on in April of 2014, at which time a substitute trustee
conveyed the property to Carlos Chapa. (1 CR 310-312).

                                                                              - 41 -
where his testimony was thoroughly contradicted and impeached, from this

Court’s consideration.


   The answer is no. A ruling on a motion to suppress is an interlocutory

decision that may be reconsidered by the trial judge. State v. Henry, 25

S.W.3d 260, 262 (Tex. App.—San Antonio 2000, no pet.) The trial judge

is not precluded from such reconsideration unless there is an interlocutory

appeal or until the judgment becomes final. See id. Therefore, the trial

court had plenary power to rehear the motion to suppress as a whole after

having the preliminary hearing on standing. See id.; State v. Wolfe, 440

S.W.3d 643 (Tex. App.—Austin 2010). The trial court could also carry

over the issue into the trial, all the way until the end; conversely, the

Appellant was free to re-urge the motion at any time. Garza v. State, 126

S.W.3d 79, 81–82 (Tex. Crim. App. 2004). Appellant chose not to do so

until he got here.


   As such, the Court may properly consider everything taken into

evidence after the September 11, 2014 hearing, in addition to the

Appellant’s testimony at the September 11 hearing and the officer’s

affidavit that Appellant himself put into evidence through his offer of

proof.



                                                                     - 42 -
                            B. Standard of Review
      In reviewing a trial court's ruling on a motion to suppress, “the trial

court is the sole trier of fact and judge of the credibility of the witnesses

and the weight to be given their testimony.” State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000). The appellate court should give “almost total

deference to a trial court's determination of the historical facts that the

record supports especially when the trial court's fact findings are based on

an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997). A similar deference should be accorded the

trial court's rulings on “application of law to fact questions,” also known as

“mixed questions of law and fact,” if the resolution of those ultimate

questions turns on an evaluation of credibility and demeanor. Id . Any

“mixed questions of law and fact” which do not rely upon an assessment of

credibility and demeanor should be reviewed de novo. Id.


      Accordingly, the Court should give almost total deference to the trial

court's resolution of historical facts and review the application of the law

of search and seizure de novo. See Carmouche v. State, 10 S.W.3d 323,

327 (Tex. Crim. App. 2000). If a trial court does not file findings of fact,

the Court should assume that the trial court made implicit findings that

support the ruling, so long as those implicit findings are supported by the


                                                                        - 43 -
record. Corbin v. State, 85 S.W.3d 272, 275-76 (Tex. Crim. App. 2002)

(citing Ross, 32 S.W.3d at 855). Here, the trial court did not make findings

of fact, and the Court should therefore review the evidence in the light

most favorable to the trial court's ruling. See Carmouche, 10 S.W.3d at

327-28.


                           C. Applicable Law
      The purpose of the Fourth Amendment’s limitation on government

power “is to safeguard an individual's legitimate expectation of privacy

from unreasonable governmental intrusions.” Villarreal v. State, 935

S.W.2d 134, 138 (Tex. Crim. App. 1996). An accused has standing, under

both constitutional provisions, to contest a search only if he had a

legitimate expectation of privacy in the place searched. Villarreal, 935

S.W.2d at 138. The Appellant had the burden of proving facts establishing

a legitimate expectation of privacy. Calloway v. State, 743 S.W.2d 645,

650 (Tex. Crim. App. 1988). The Appellant may carry his burden by

proving that (a) by his conduct, he exhibited an actual subjective

expectation of privacy, i.e., a genuine intention to preserve something as

private; and (b) circumstances existed under which society was prepared to

recognize his subjective expectation as objectively reasonable. Granados v.




                                                                      - 44 -
State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d

at 138.


      The question here concerns factor (b), whether Appellant’s

expectation of privacy in the Napoleon Street dungeon is objectively

reasonable. The following factors are relevant in determining whether a

claim of privacy is objectively reasonable: (1) whether the accused had a

property or possessory interest in the place searched; (2) whether he was

legitimately in the place searched; (3) whether he had complete dominion

and control and the right to exclude others; (4) whether, prior to the

intrusion, he took normal precautions customarily taken by those seeking

privacy; (5) whether he put the place to some private use; and (6) whether

his claim of privacy is consistent with historical notions of privacy.

Villarreal, 935 S.W.2d at 138. “This list of factors is not exhaustive,

however, and none is dispositive of a particular assertion of privacy; rather,

[the court will] examine the circumstances surrounding the search in their

totality.” Granados, 85 S.W.3d at 223.




                                                                        - 45 -
 D. Application, Part 1: Appellant Failed to Establish Standing at the
        Suppression Hearing or Through His Offer of Proof
      First, let us assume that the Appellant is actually able to close the

door, and limit the evidence before the Court to only what was said at the

September 11, 2014 hearing, plus the officer’s complaint affidavit that

Appellant included in his offer of proof. Even with Appellant’s limits in

place, the record is against him, for the following reasons.


                            1. Overnight Guest?


   Appellant argues that he was an authorized overnight guest and had

standing to suppress the evidence on that basis. See Luna v. State, 268

S.W.3d 594, 602 (Tex. Crim. App. 2008). Appellant claimed he got

authority to stay overnight at the Napoleon Street house from Abel Rocha,

Sr., a/k/a “Pantera”; Appellant further claimed that Pantera was the owner

of the house, and that he let it to Appellant under a rental agreement so

long as Appellant would sell drugs there. (13 RR 25-27). At the September

11, 2014 hearing, there was no evidence besides Appellant’s testimony to

establish that Pantera (Abel Rocha, Sr.) was an owner or lessor of the

house, or that he had any authority to lease the house to Appellant on

behalf of the actual owners, Ricardo Rocha and Zenaida Sanchez Rocha;

on the contrary, Appellant acknowledged that Ricardo and Zenaida Rocha


                                                                     - 46 -
never told him he could stay there. (13 RR 27). Moreover, Appellant gave

contradictory testimony about where he lived overnight, admitting that he

was arrested at a house on Bismark Street. (13 RR 25). So even assuming

Appellant’s testimony was golden, the undisputed portion establishes, at

most, that Appellant was an invited guest of Abel Rocha, Sr., a/k/a

“Pantera,” who may or may not have been the landlord, and that Appellant

may or may not have stayed at the Napoleon Street death shack overnight.

(13 RR 25).


      Appellant stipulates that the officer’s complaint affidavit is part of

the record from the original hearing by virtue of his offer of proof. (Ant.

Brief at p. 28). Unfortunately for him, the affidavit states:


   “On Thursday August 29, 2013 at approximately 7:32pm … an
   unidentified caller [stated] … that a male subject was being tortured and
   dragged inside a small house with a wooden fence … [Detective] Perez
   then proceeded to make contact with property owner [Zenaida]
   Sanchez who identified the correct location as 2920 Napoleon St.
   (Rear), and provided a written consent to search the property.”
   (1 CR 336).

   This statement, which Appellant adamantly wants in the record, creates

another factual dispute about who owned Blackacre, or rather, 2920

Napoleon St. Rear, at the time of the search; whether or not “Pantera” was

really the owner raises yet another issue on whether “Pantera” had



                                                                      - 47 -
authority to lease the premises or give permission to Appellant to stay

there.


         An individual who has no possessory or proprietary interest in the

premises, but is a guest, has no clothes in the house, or other belongings,

has no legitimate privacy interest in the premises searched. Calloway, 743

S.W.2d at 650. Additionally, an individual has no valid expectation of

privacy in a home where he is simply a guest and does not control

entrances or exits from the premises. Black v. State, 776 S.W.2d 700, 701

(Tex. App.—Dallas 1989, pet. ref'd); Villarreal v. State, 893 S.W.2d 559,

561 (Tex. App.—Houston [1st Dist.] 1994), aff'd, 935 S.W.2d 134 (Tex.

Crim. App. 1996). Appellant gave inconsistent testimony as to where he

actually lived; he also admitted that he did not have exclusive control over

the doors, but supposedly shared that control with Pantera. (13 RR 28).

And the evidence that Pantera even had such control to grant was as

elusive as the Cheshire Cat.


                                   2. Lessee?


         Appellant might also be able to concoct standing if he can prove that

he is an authorized lessee of the premises. See Black v. State, 776 S.W.2d

700, 701 (Tex. App.—Dallas 1989). But, in order to elevate Pantera’s


                                                                        - 48 -
questionable invitation into an actual lease which could impart standing,

Appellant would have to prove the usual elements of a contractual lease,

namely consideration. Appellant described such as follows:


      Q. How is it that [Pantera] gave you permission to stay there? In
      what way did he give you permission to stay there?

      A. Well, because I used to sell drugs there.

(13 RR 26).

      So Pantera supposedly let Appellant stay at the Napoleon house

because he was selling drugs for Pantera. Pardon the flashback to 1L

Contracts class, but it goes without saying that “contracts against public

policy are void and will not be carried into effect by courts of justice [and

these] are principles of law too well established to require the support of

authorities[;] and the only question is whether the agreement set forth in

the petition be or not in violation of public policy or in fraud of the law.”

Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671

(Tex. 2008) (quoting James v. Fulcrod, 5 Tex. 512, 520 (1851)). A

contract for an illegal purpose—‘hey man, I’ll let you stay at the death

shack if you sell drugs for me’—is void ab initio. Crowell v. Housing

Authority of City of Dallas, 495 S.W.2d 887 (Tex. 1973). Accordingly, this

‘lease’ would not be recognized by society as conferring an objectively

reasonable privacy interest. Cf. Villarreal, 935 S.W.2d at 138.

                                                                       - 49 -
      So in Appellant’s world, where only his testimony and the officer’s

affidavit count as evidence on the motion to suppress, it is not at all clear

that “Pantera” had any authority to grant a leasehold to Appellant, that

such grant was valid, that it conferred an objectively reasonable privacy

interest, or even that Appellant actually lived at the Napoleon Street shack.

The trial court was well within its discretion to resolve these matters

against Appellant, and those resolutions are respectfully taken with

deference on appeal. See Carmouche, 10 S.W.3d at 327-28.


                            3. The Trial Evidence

      Looking past the Appellant’s world to the evidence admitted at trial,

the State brought in records from the Webb County Appraisal District to

establish that Pantera was not the owner at the time of the search. (18 RR

40). Appellant conceded that the then-owners, Ricardo Rocha and his wife,

Zenaida Sanchez Rocha, never permitted him to stay at the Napoleon

Street house of death. (18 RR 27). They did, however, authorize the police

to search the house. (18 RR 17-19). That dispenses with the need for

probable cause and a warrant exception. But since Appellant has briefed

that issue, it will be answered next.




                                                                       - 50 -
E. Application, Part 2: Appellant’s Probable Cause Argument Ignores
         the Rochas’ Waiver and the Emergency Exception
      Assuming arguendo that Appellant somehow obtained standing from

Pantera by selling drugs for him, Appellant makes the following

substantive argument based on the same officer’s affidavit that defeated his

standing claim: “the police officers entered the home (where the body of

the victim was found) without a warrant based on an anonymous telephone

call in which a woman claimed that someone had been dragged into a

house and was being tortured, and the police did not know whether the

caller had personal knowledge of the facts upon which the police relied, or

whether the caller was a credible person, the police lacked probable cause

to justify a warrantless entry into the home.” (Ant. Brief at p. 29).

Accordingly, he says that all of the evidence obtained from that house

should have been excluded. (Id. at pp. 29-30).


      The gist of the argument was that the “anonymous telephone call”

was not a sufficient basis for the development of probable cause, because

“the police did not know whether the caller had personal knowledge of the

facts upon which the police relied, or whether the caller was a credible

person….” (Ant. Brief at p. 29). Appellant confuses anonymous tips with

anonymous distress calls. These are two different animals, distinguished



                                                                      - 51 -
by whether the crime involves danger to life. Compare State v. Simmang,

945 S.W.2d 219, 233 (Tex. App.—San Antonio 1997) (anonymous tip case

affirming suppression where there was no danger) with Laney v. State, 117

S.W.3d 854, 862 (Tex. Crim. App. 2003) (distress call case affirming

denial of suppression when there was danger to a child). Anonymous tips

must be corroborated. Simmang, 945 S.W.2d at 233. Distress calls need no

such corroboration per se; they are handled under a completely different

set of rules, as described below.


      The Mincey emergency-aid doctrine holds that “‘[t]he need to

protect or preserve life or avoid serious injury’ [can justify] a warrantless

intrusion and limited search of a private residence.” Laney, 117 S.W.3d at

858 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). The key issue

is not corroboration of the anonymous call leading to the officer’s

response, but rather an objective test. “Under the emergency doctrine, the

officer [must have] an immediate, reasonable belief that he or she must act

to “protect or preserve life or avoid serious injury.” Laney, 117 S.W.3d at

861. Since the caller reported that Mr. Vasquez was being kidnapped and

tortured, the officer was justified in entering the house in order to protect

Mr. Vasquez’s life. Laney, 117 S.W.3d at 861. Although the officer was




                                                                       - 52 -
too late, anything found in plain sight could be then and there seized. Id.

That is exactly what happened.


      Appellant also mentions the lack of a search warrant. Upon

determining that there was no longer an emergency, the police obtained a

consent to search from the owners of the property. (1 CR 336; 18 RR 18).

This obviously removed any need for a warrant.

      As such, the State respectfully requests that Appellant’s third point

of error, concerning standing to contest the search, be overruled.




                                                                     - 53 -
                          PRAYER

     WHEREFORE, PREMISES CONSIDERED, the State prays that the

conviction be AFFIRMED.

                          Respectfully submitted,

                          ISIDRO R. ALANIZ
                          DISTRICT ATTORNEY
                          49TH JUDICIAL DISTRICT

                          By:___/s/__________________
                          David L. Reuthinger, Jr.
                          Assistant District Attorney
                          Webb County, 49th Judicial District
                          1110 Victoria St., Suite 401
                          Laredo, Texas 78040
                          (956) 523-4900 / (956) 523-5070 (Fax)
                          Bar No. 24053936
                          ATTORNEY FOR APPELLEE




                                                             - 54 -
                  CERTIFICATE OF COMPLIANCE

       I hereby certify that the foregoing brief complies with Rule 9.4,
Texas Rules of Appellate Procedure, as amended, and that the word count,
less exempt sections, is 9,635.

Date: July 8, 2015

                                      ___/s/__________________
                                      David L. Reuthinger, Jr.
                                      Attorney for Appellee




                      CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and
foregoing Appellee’s Brief has been delivered to J. Eduardo Pena, attorney
for the Appellant, via eFileTexas e-Service to jpena84@att.net.

Date: July 8, 2015.

                                      ___/s/__________________
                                      David L. Reuthinger, Jr.
                                      Attorney for Appellee




                                                                    - 55 -
