Guillory, Patrick Sharard

/63/S
ORIGINAL NO.

COURT OF CRIMINAL APPEALS
MAY 04 2015
TO THE

COURT OF CRIMINAL APPEALS
Abel Acosta, Clerk
OF TEXAS

**************************************************

PATRICK SHARARD GDILLORY

Defendant—Petitioner/ FILED IN
COURT OF CRIMINAL APPEALS
HAY 04 2915
vs.

Abel Acosta, Clerk
THE STATE OF TEXAS

Plaintiff-Appellee/

****************************************************

Petition for Discretionary Review in Cause number
1340306 (Trial) (14-13-01037-CR), In the 180th
District Court of Harris County,Texas
****************************************************

PETITION FOR DISCRETIONARY REVIEW
*****************************************

?q*Hkfo Uy,JLalU MMiUfr
PATRICK SHARARD GOTLLORY
Petitioner/Pro Se#1895126
Mc Connell Unit
3001 South Emily Drive
Beeville,Texas 78102
 TABLE OF CONTENTS (TRAP 68.4(b))
Identity of parties and Counsel II
Index of Authorities III

Statement Regarding Oral Argument IV
Statement of The Case IV

Reasons for Granting Review IV
Statement of Procedural History V
Grounds for Review (68.4(G)) VI,VII
Argument 2
Appendix: Opinion of the Court of Appeals

ISSUE #1: 2
Petitioner argues that the evidence presented at trial is legally
insufficient to "prove" beyond a reasonable doubt that he is
guilty of Capital Murder.

ISSUE #2: 5/6
Petitioner argues that the trial court erred in denying him the
requested jury instruction and the omission was highly harmful
and prejudicial.

ISSUE #3: 7/8
Petitioner argues that the Court of Appeals erred in finding
petitioner was not entitled to an instruction on lesser-included
offense of felony murder.

ISSUE »4: T9;10
Petitioner argues that the trial court erred in denying him the
"requested" lesser-included offense of Aggravated Assault in the
jury charge.

ISSUE #5: 11-13
Petitioner argues that the trial court did err in "overruling"
petitioner's "objection" to the State's argument/request that
the jury do the right thing and show the Amaro family that there
is justice in our country/ it was (critically improper).

Inmate Declaration 14

Certificate of Service (TRAP 68.11) 14
Prayer for Relief (68.4(i)) 13
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex.R.App.P.38.2(a)(1)(A)

District Attorney Devon Anderson
District Attorney's Office
Harris County
1201 Franklin St. Ste 600
Houston/ TX 77002

Assistant District Attorney Mary HcFaden
at Trial District Attorney's Office
Harris County

Assistant District Attorney Carly Dessauer
on Appeal District Attorney's Office
Harris County
Appellate Division

Petitioner Patrick Sharard Guillory
McConnell Unit
3001 S. Emily Drive
Beeville/ TX 78102

Counsel?, a t TSFrial Charles A. Brown Jr.
708: Maini Streetv-Suite 790eS
Houston/ TX 77002

Counsel on Appeal Wayne T. Hill
4615 S.W- Freeway, Ste 600
Houston/ TX 77027

Trial Judge Honorable Larry Gist
180th District Court
Harris County Criminal Justice
Center
1201 Franklin Street/ 18th FL
Houston, TX 77002

li
 INDEX OF AUTHORITIES
CASES PAGES

Albiar v. State, 739 S.W.2d 360 (Tex.Crim.App.1987) 12
Burks v. United States, 437 U.S.1.16.98 S.Ct.2141,57 3
L.Ed-2d 1 (1978)(emphasis in original):Garrett v.
State, 749 S.W.2d 784,792 (Tex.Crim.App.1986)
Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App.2000) 9
Cortez v. State, 683 S.W.2d 419 (Tex.Crim.App.1984) 13
Floyd v. Meachum, 907 F.2d 347,354-55 (2nd Cir. 1999) 13
Garrett v. State, 851 S.W.2d 853,859-60 (Tex.Crim.App. 11
1993)
Goldsmith v. Smith, 2014 WL 261007 (Tex.App.Hou.[14th 9
Dist. ] .2014)
Gomez v. State, 737 S.W.2d 315 (Tex.Crim.App.1987) 6
Hall v. State, 940 S.W.2d 137,139-40 (Tex.App.-Amarillo. 3
1998)(pet. ref.): Simmons v. State, 2009 WL3817582.at*3
(Tex.App.-Amarillo.November 16, 2009)(pet. ref.)(Not
'7-designated' for1 pufol ication) see also Conner v. State, 67
S.W.3d 192,197 (Tex.Crim.App.2001)
Herbert v. State, 827 S.W.2d 507,509 (Tex.App.-Houston 2
[1st Dist.].1992)(no pet.)
Hill v. State, 30 S.W.3d 505 (Tex.App.-Texarkana.2000) 8
Johnson v. Tenth Judicial District Court of Appeals at IV
Waco, 280 S.W.3d 866,874 (Tex.Crim.App.2008)
Langford v. Fourteenth Court of Appeals, 847 S.W.2d . IV
581,585 (Tex.Crim.App.1993)(emphasis added)
Larry v. State, 15 S.W.3d 581,585 (Tex.App.-Amarillo. 2
2000)(Pet. Ref.)
Patterson v. State, 942 S.W.2d (Tex-App.-Texarkana .1997) 8
Perez v. State, 332 S.W.3d 700,702 (Tex.App.-Amarillo. 2,4
2011 )(pet. if il£d) citing: Dewberry v. State, 827 S.W.3d
735,740 (Tex.Crim.App.1999)(cert.den.) 529 U.S. 113,
120 S.Ct.2008, 146 L.Ed.2d 958 (2000)
Richardson v. State, 257 S.W.2d 308 (Tex.Crim.App.1953) 13
Smith v. Flack, 728 S.W.2d 784,788 (Tex.Crim.App.1987) IV
Smith v. State, 996 S.W.2d 1 (Mo.App.1997)(9 pages) V

in
 INDEX OF AUTHORITIES
CASES PAGES

Standerfer v. State 11

Temple v. State, 390 S.W.3d 341,360 (Tex.Crim.App.2013) VII
Thacker v. Dretke, 396 F.3d 607 (5th Cir. 2005), Winship 11
397 U.S. 358,364 S.Ct. 1068, 25 L.Ed.2d 368 (1970)
Thompson v. State, 697 S.W.2d 413,416 (Tex.Crim.App.1985); 6
Michel v. State, 834 S.W.2d 64,67 (Tex.App.-Dallas.1992)
(no pet. )
United States v. Brady, 397 U.S. 742, 90 S.Ct. 1463, 25 5
L.Ed.2d 747 (1970)
U.S. v. Gallardo-Tropero, 185 F.3d 307,319-20 (5th Cir. 13
1999)
U.S. v. Mareno, 185 F.3d 465 (5th Cir. 1999) 8
U.S. v. Martinez!-Larraga, 517 F.3d 256 (5th Cir. 2008) 11
Wooley v. State, 273 S.W.3d 260,268,nl2 (Tex.Crim.App.2008) 3
Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App.2013) 6

Tex. Code of Criminal Proc.

Article 36.14 8
Article 36.15 9
Article 38.14 6

Tex. Constitution

Article 5§5 V

Tex. Penal Code(s)
7.01 7
7.02 (a) Criminal Responsibility 5
19.03 10
19.03 (a)(2) VI
29.02 (2) Vernon Supp. 2010 3

Tex. Rules of App. Proc.
68.1 1

iii(b)
 STATEMENT REGARDING ORAL ARGUMENT (TRAP 68.4(d))

Petitioner is not requesting oral argument in this case
unless the respondents request oral argument in this matter.

STATEMENT OF THE CASE (TRAP 68.4(e))

Petitioner was indicted for the offense of Capital Murder.
The indictment alleged that petitioner intentionally caused the
deathr.of Raul Amaro while in the course of committing or attempt
ing to commit the robbery of Raul Amaro. (CR-I-7) Petitioner
entered his plear; of "not guilty" and was tried by a jury. The
jury found the petitioner "guilty" as charged in the indictment.
(CR-I-307) The petitioner was sentenced to life without parole -i
in the Texas Department of Criminal Justice - Institutional Divi
sion. (CR-I-308) A Motion for New Trial was filed in this matfe^:
ter. (CR-I-321) And the petitioner gave Notice of Appeal in this
case. (CR-I-311) The Fourteenth Court of Appeals affirmed the
judgment in a Non-Published Opinion on February 10/ 2015/ in No.
14-13-01037-CR.

REASONS FOR GRANTING REVIEW (TRAP 66.3(a))

Petitioner avers that the Court of Appeals' decision is in
direct conflict with another Court of Appeals' decision on the
same issuer which involves matters of criminal law. Smith v- Flack

728 S.N.2d 784, 788 (Tex.Crim.App.1987) "Criminal Law Matters"
as used in Tex.Const-Article.5§5, also encompasses at least "all
legal issues arising directly out of a criminal prosecution.
Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581/ 585 (Tex.
Crim.App.1993)(emphasis added) The Court of Criminal Appeals
construes the phrase so as to "keep the lines of direct appellate
review open, so that the legal issues can be confronted directly
and finally resolved..." Johnson v. Tenth Judicial District Court
of Appeals at Waco, 280 S.W.3d 866/ 874 (Tex.Crim.App.2008)
Petitioner Guillory shows this Honorable Court that the Four-rf ^:n

IV
teenth Court of Appeals decision is in conflict with the Court
of Appeals' decision in Jackson County. Smith v- State, 966 S.W.
2d 1 (Mo.App.1997)(9 pages): Defendant was convicted in the
Circuit Court of Jackson County... of First Degree Murder and
Armed Criminal Action, and he appealed. The Court of Appeals...
held that: (1) defendant was entitled to instruction on lesser-
included offense of Second Degree Murder. (2) The State failed
to establish what evidence supported the findings that defendant
committed the offense. (3) Order granting Certificate of Appeal
ability (2 pages) upon de novo review of the record and peti^i
tioner's motion, the court granted review on whether petitioner
received his due process right to a fair trial due to counsel's
failure to request a jury instruction on the charge... The judg
ment of the trial court- is reversed and remanded.

Petitioner Guillory requests that this Honorable Court
reverse and remand on the merits of the issues presented on his
Petition* for Discretionary Review.

STATEMENT OF PROCEDURAL HISTORY

On November 28th, 2011, at approximately 7:40j*p.m., Miguel
Frias went to a Conoco station.(R-III-32) After pumping gas,
Frias got back in his vehicle with a friend. Frias then heard
four gunshots. (R-III-35) Frias thought the gunshots; came from
the back of the store. He saw people running from the side and
the last person he saw running collapsed. (R—111-37) He desrorx
scribed the individual who collapsed as a little bit older man
who he had never seen before. (R-III-41) Before collapsing, the
man was hunched over with his hand on his left side. (R-III-43)
Frias called 911 and was following their instructions in an
effort to assist the fallen man. (R-III-44,45) The man appeared
to be going in and out of consciousness when Frias was trying
to ask him questions. (R-III-46,47) Frias described the man's
answer; as "mumbling". (R-III-48) Frias was "unable to actually
tell the police who shot the complainant [Raul Amaro]." (R-III-
51) After hearing the gunshots, Frias said people were running
from the side, people were running from inside coming out of the
store and getting into their cars and leaving, people were trying
to get the heck out of there. (R-III-61) FRtAS ACKNOWLEDGED THAT
HE WAS UNABLE TO PLACE PETITIONER AT THE SCENE THAT EVENING. (R-
111-64)
[Officer Jose Gomez], with the Harris County Sheriff's De
partment, was working patrol on November 28, 2011 when he reec';•
ceived a dispatched call to 13102 Bissonet. (R-III-68) After
arriving, Gomez noticed a Hispanic male lying on the ground and
another Hispanic male putting pressure on the man's left side.
(R—III—72) Gomez attempted to speak to the man on the gound
(complainant), who Gomez believed was about to die. (R-III-77)
Gomez stated that the complainant told him that it was a black
male and that the black male was trying to rob him and then the
male shot him. (R-III-78) Gomez also spoke with two other indi
viduals at the scene (Alex Flores and Ivan Martinez). (R-III-81)
"GOMEZ DESCRIBED BOTH INDIVIDUALS AS BEING PRETTY INTOXICATED"
(R-III-81)
During cross-examination, Gomez acknowledged that he did not
ask the complainant who was with him. Gomez also failed to de4c.<
termine how many people came at the complainant. The complainant
was unable to tell Gomez what his assailant was wearing. (R-III-
86) In sum, the only thing that the complainant was able to say
was that a Black male< attempted to rob him and shot him. (R-III-
86) Further, the complainant was unable to say "whether he was
with Flores and Martinez that night." (R-III-87)

GROUNDS FOR REVIEW (TRAp 68.4(G))

ISSUE #1; There was [N]o positive identification that- petitioner
Guillory was the person who shot the complainant, or
that '''he" took 'part' 'in 'this' shooting .''Vhe States Wit
ness "Vasquez" could not positively identify petition
er as the shooter or that he took part in this crime.

ISSUE #2: Petitioner shows this court facts that there is [N]o
Evidence that a crime was committed by him, or a mur
der was committed during the course of a robbery. The
State showed clear evidence that the victim "Amaro" v
was found to have a large amount of money still inside

VI
 his wallet.

ISSUE #3: Petitioner argues that the Court of Appeals erred in
finding petitioner was not entitled to an instruction
on the lesser-included offense of Felony Murder, evenn
though the State failed to prove every element of
Capital Murder beyond a reasonable doubt.

ISSUE #4: Petitioner argues that the trial court critically <•:
erred on error #3; and; #4 in denying his jury instruc
tions where the evidence strongly showed the State had
failed to establish beyond a reasonable doubt that
petitioner committed this crime and where the evidence
o clearly shows that the State's witness knew of the
criminal wrongdoings "before" arriving at the store.
(Proving the accomplish witness argument)

ISSUE #5: The State made an improper plea for law enforcement,
requesting the jury to place.themselves in the shoes
of the victim's family when deliberating the issue of
guilt or innocence.
Petitioner argues that to obtain a conviction for Capital
Murder the State was required to "prove" that petitioner murdered
Amaro and that the murder was intentionally committed during the
course of a robbery. Tex.Penal Code.§ 19.03(a)(2) Petitioner con
contends that his conviction;.should be set aside because there is

no evidence that proves "he" (1) murdered Amaro, or that "he" (2)
committed a robbery or that a robbery even took,>place. Petit-:'r-n
tioner understands that this court, in reviewing the legal suffi
ciency of the evidence, must examine all of the evidence in light
most favorable to the verdict and determine whetherba rational

trier of the facts could have found the essential elements of the

offense beyond a reasonable doubt. Temple v. State, 390 S.W.3d
341,360 (Tex.Crim.App.2013) The evidence is insufficient when
the record contains no evidence or merely a "modicum" of evidence
as shown here in this case. (See Claim No. One at P. #2)

VII
 NO.

TO THE

COURT OF CRIMINAL APPEALS
OF TEXAS

**************************************************

PATRICK SHARARD GUILLORY
Petitioner,

VS

THE STATE OF TEXAS
Respondent,

*****************************************************

Petition for Discretionary Review in Cause number;
14^-13^01037-CR, From the 180th District Court in
Harris County/Texas,under cause no.1340306.
*****************************************************

PETITION FOR DISCRETIONARY REVIEW

********************************

TO the Honorable Judges of the Court of Criminal Appeals:

COMES NOW,Patrick Sharard Guillory,and Submits this petition

under TEX. R.APP. P.68.1 in support of this request for remand of

this cause to the court of appeals for new analysis.
CLAIM NO. ONE FOR REVIEW

Whether the evidence is legally insufficient as a matter of law
to sustain peti.CiTojnex""-3B conviction for the offense of Capital i';,r
Murder.

ARGUMENT FOR RECONSIDERATION

Underlying Law
The well-known standard of review of legally insufficient
evidence claims asks "whether, after viewing the evidence in Li. ,))
light most favorable to the verdict, any rational trier of the
facts could have found the essential elements of the crime

beyond a reasonable doubt. Larry v. State, 15 S.W.3d 581,585
(Tex.App.-Amarillo, 2000, pet. ref.) A reviewing court must
evaluate all of the evidence in the record, both direct and cir

cumstantial, whether admissible or inadmissible. Perez v. State,

332 S.W. 700,702 (Tex.App.-Amarillo 2011,pet. filed), citing
Dewberry v. State, 4 S.W.3d 735,740 (Tex.Crim.App.1999), Cert-
denied, 529 U.S. 1131, 120 S.Ct.2008, 146 L.Ed.2d 958 (2000)
Although this is generally an easy standard to meet, where the
uncontradicted evidence reflects a defense. No rational trier of

the facts could find petitioner guilty beyond aoreasohable'odbubt ,
we must reverse. Herbert v. State, 827 S.W.2d 507,509 (Tex-App.
-Houston [1st Dist]-1992, no pet.) Petitioner Guillory shows
this court clear facts within the record that neither of the

Stater'.s witnesses positively identified him as being the person
who shot "Amaro" or that he committed "any" robbery during this
offense. (R-III-51) The State's witness, Frias, was unable to
actually tell the police who shot the complainant [Raul Amaro].
(R-III-86) Which states the complainant as well as Frias was m
unable to tell officer Gomez what his assailant was wearing.
The record clearly reflects that the only "alleged" witnesses
were two individuals, Alex Flores and Ivan Martinez, whom Offi
cer Gomez spoke with at the scene. (R-III-81) Gomez described
bothoindrintfidualsj as; beingm'fpretty intoxicated. " (R-III-82)
Therefore, the record stands as being established on circumstan
tial evidence presented during petitioner's trial and in light of

2.
the evidence as being insufficient to prove Capital Murder.
Some authorities suggest a finding of insufficient evidence that
involves the Appellate Court's substitution of it's own judgment
for that of the jury, other cases include those from the Court of
Criminal Appeals and the United States Supreme Court dictating
otherwise; such an appellate reversal means;:that the government's
case was lacking that it should not have even been submitted to
the jury. Burks v. United States, 437 U.S.li 16, 98 S.Ct.2141,
57 L.Ed.2d 1 (1978),(emphasis in original); Garrett v. State,
749 S.W.2d 784, 792 (Tex.Crim.App.1986) Consequently, no en
croachment oh the jury's role is entailed and legally insuffi
cient evidence prompts reversal and acquittal rather than a new
trial. Wooley v. State, 273 S.W.3d 260, 268, n.12 (Tex.Crim.App.
2008)
Where the indictment accuses the defendant of Capital Murder
via murder in the course of committing or attempting to commit
the offense of robbery, one essential element is that the defen
dant "intended to obtain or maintain control of the decedent's

property prior to or during the killing." Hall v- State, 940 S.W.
2d 137, 139-140 (Tex.App.-Amarillo 1998,Pet.ref.) Simmons v.
State, 2009 WL 3817582, at*3 (Tex.App.-Amarillo, November 16,
2009 pet.ref.) (Not designated for publication); Conner v. State,
67 S.W.3d 192, 197 (Tex.Crim.App.2001) Robbery requires proof of
either bodily injury or placing of another in fear of imminent
bodily injury or death. Tex. Pen.. Code Ann.§Art 29.02(;2)Vernon ?: ,;: :
Supp.2010) The State "never" proved Guillory committed either.

APPLICATION OF LAW TO FACTS

The only evidence the State relied on to attempt to show
intent of petitioner was the testimony of Roy^Vasquez-. Who testi
fied that he picked up two people in the neighborhood and offered
them a ride. Vasquez stated that he was talking on the phone
when the two entered his car. (R-III-139) Vasquez [made] several
statements that did not positively show that petitionerocommit-
ted this offense, not one thread of evidence that proves intent*
3.
or the state of mind of petitioner to commit this offense.
Petitioner shows that nothing in the record or anything
stated by the State's witness indicated he, the petitioner,
formed the intent before, during, or after the murder or of tak
ing anything by force. Iftnfacty.'".thecpetitioneE was never posi
tively identified at the convenience store during the time of
this offense. Therefore, all the testimony by the State's wit
ness is clearly inadmissible if taken into account Perez, 332
S.W.3d at 702 and therefore unsupported by any evidence to
sustain this conviction against petitioner. The testimony of.
Amaro being robbed - if indeed he was. The evidence that he was
robbed is again unsupported by the record. The Crime Scene Unit
Deputy, Gary Clayton, established that $304.00 was found still
inside the complainants wallet at the scene. (R-III-127) Clayton
failed to collect clothing from the complainant for forensic
testing. (R-III-128) There is no evidence that supports this
conviction that establishes that petitioner committed this ofkn
fense. There is no physical evidence, forensic or biological. ;?
evidence, no positive eyewitness identification that proves "be
yond a reasonable doubt" that petitioner committed this crime or
was a part of> the offense. Th^; State prosecutor "failed" to es
tablish that petitioner formed "intent" to commit this act or was
in "any way a party." The State can not shift the burden on the
defense to prove otherwise, because the State and the State only
has the burden to prove a defendant guilty of an offense via the
jury for guilt and innocence on the presentment of evidence.
Therefore, the appropriate remedy is to vacate the Trial Court's;,
judgment and enter an Order of Acquittal.
CLAIM NO. TWO FOR REVIEW:
The Trial court erred when it denied petitioner's request for an
accomplice witness jury charge. (R.V.5)

STATEMENT OF FACTS "RESUBMITTED" UNDER POINT OF ERROR NO. TWO

At the conclusion of the evidence, the trial court submitted

it's proposed jury charge to the respective parties and asked if
there were any objections. (R—V—5) The State voiced no object!
tions. Petitioner's counsel objected to the lack of an accom
plice witness charge. (R—V—5) The trial court overruled peti
tioner's objection.

ARGUMENT FOR RECONSIDERATION

Petitioner, Patrick Guillory, argues that the accomplice
witness jury charge was "critically" necessary to establish that
there was other evidence that tended to connect Vasquez as a
party to this offense. Therefore, the trial court erred by over
ruling petitioner's request. Guillory shows this Honorable Court
that the State trial court made and unreasonable determination in

it's decision to overrule the defense's request for an accomplice
witness jury charge. This is a violation of petitioner's due ;
process right to a full and fair trial. United States v. Brady,
397 U.S. 742, 90 S.Ct.1463, 25 L.Ed-2d 747 (1970) The record
clearly reflects "supportable evidence" that tends to connect
Rogelio Roby Vasquez as an accomplice. Tex.Penal Code.Sec.7.02(a)
[Criminal Responsibility for the conduct of another]...(a) A
person is criminally responsible for an offense committed by the
conduct of another "If"; (3) Having a legal duty to prevent the
commission of the offense and acting with intent to promote or
assist it's commission, he fails to make a "reasonable effort" to

prevent the commission of the offense. Petitioner contends that
the law is well settled in Texas that in determining whether a
defendant participated in an offense as a party; the court may
examine the events before, during, and after the commission of
the offense and may rely on actions by the defendant that shows

5.
an understanding and common desigh to commit the offense. Thomp
son v. State, 697 S.W.2d 413,416 (Tex.Crim.App.1985); Michel v.
State, 834 S.W.2d 64,67 (Tex.App.-Dallas.1992, no pet.) Vasquez
stated in open court that "he" was well aware of Tyreon Young's
plan to commit a robbery [Hit a LickU as Vasquez drove to the
Conoco location. Vasquez testified that the individual in the
back set displayed a revolver to Vasquez. Therefore, the evidence
presented herein show's that Vasquez was in fact a party to this
offense. He failed to call 911 or stay at the location until the
police arrived, if indeed he was not a party. Article 38.14 of
the Texas Code of Criminal Procedure clearly provides that a
conviction can not be had upon the testimony of an accomplice
unless its corroborated by other evidence tending to connect the
defendant with the offense and the corroboration is not suffi
cient if it merely shows the commission of the offense.
An accomplice witness is one who participates before, during':
or after the crime. Gomez v. State, 737 S.W.2d 315 (Tex.Crim.App.
1987) If a "prosecution witness" is an accomplice, the trial c;,<••
court is under a legal duty to instruct the jury accordingly.
Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App.2013) According to
Vasquez's own testimony ffhe admitted" that he was aware of the
plan to rob someone at the Conoco store oh November 28th, 2011.
The record and statements clearly reflect that Guillory's Consti
tutional right to a full and fair defense was violated U.S.C.A.
§6. The trial court's decision to overrule the objection "cre.T-
ated" social harm within the proceeding and caused the jury to be
withheld critical information violating petitioner's due process
right to a fair trial. Guillory asserts that the evidence of
whether Vasquez was a "key" to this offense relied upon the re
quested jury charge being placed before the jury. Therefore, the
jury was unable to hear this evidence that would have established
that Vasquez played an important role in this offense and revert;
sal is required. PejtfLtioner asks that this Honorable Court re
verse ttheccTrial-Courtssn decision and remand for a new trial on
the merits. ,
CLAIM NO. THREE FOR REVIEW:
The Court of Appeals erred in finding petitioner was not entitled
to an instruction on the lesser—included offense of Felony Murder

EVIDENCE OF THE FACTS

In the above claim petitioner referenced back to point of
error one and two, in addition to the objection and the trial
court's failure to submit a jury instruction on the lessor-inclu
ded offense of murder. The jury was instructed only on the law
pertaining to the offense of Capital Murder. (CR-I-298-306) The
evidence clearly shows, as noted above, evidence presented by the
State "failed" to show the commission of Capital Murder. Without
direct proof in the record of what took place behind the Conoco
store on November 28, 20(11, the trial court instructed the jury
that it could only find petitioner guilty or not guilty.

ARGUMENT FOR RECONSIDERATION

The evidence presented during trial and within the petition
herein, raises questions about who actually shot and killed Raul
Amaro. There were no eyewitnesses to the shooting (even taking
into consideration that clearly in the record the mumbling refer
enced to two black males). (R-III-46-48,51) There was no evi- u,
dence establishing how many people total were behind the Conoco
store on November 28, 2011. People often congregated on the side
of the store and drank beer. (R-III-29) The area behind the
store was inhabited by a large group of homeless people. (R-III-
98) The record reflects that the "only" person identified as
having "any" physical contact with anyone as he was running from
behind the store was Tyreon Young. Petitioner establishes that
the State has not proven every element beyond a reasonable doubt
to prove that he is guilty of Capital Murder. A Ajury instruction
was warranted to show petitioner's state of mind.
Petitioner argues that the trial court committed fundamental
error by delivering a charge to the jury that impermissibly ex
panded the statutory authority to find a defendant guilty beyond

7.
a reasonable doubt and if so, finding a defendant guilty of a
lessor-included offense of murder. The law is well-established

that must prove knowingly and intent and all elements "must" be
proven to produce a conviction. Anything less relieves the State
of its burden to prove every element of its case beyond a reason
able doubt. Tex.Penal Code.Ann.art.§6.03(a) Intent or knowingly
are essential elements of "murder" as alleged and must be proven
beyond a reasonable doubt. Patterson v. State, 942 S.W.2d (Tex.
App.-Texarkana.1997) According to Vernon.Ann's.Tex.Code.Crim.
Proc.Art.36.14, a jury charge is fundamentally defective if it
authorizes a conviction without requiring the jury to find (all)
the elements of an offense beyond a reasonable doubt. A jury
charge must be legally accurate and factually supportable,
courts may (not) instruct the. jury with a charge that lacks an
evidentiary predicate. U.S. v. Mareno, 185 F.3d 465 (5th Cir. '<
1999) The court's charge clearly excluded a lessor-included
offense paragraph and it's well within the record that there was
no physical or biological evidence that connected petitioner to
this offense.

Petitioner avers that moreover special instruction charge of
the .court) relieved! the jjurycof its' duty when:it:addsoor^excludes -
The trial court must produce a correct jury charge that does not
violate the rights of the accused to have a full and fair oppor
tunity to present a defense and if the prosecution fails to prove
an element of that charge the jury has a legal duty to decide on
a lessor-included offense then that of the primary charge. Hill
v. State, 30 S.W-3d 505 (Tex.App--Texarkana.2000)
This court should concur with the above cited precedents i:
that the trial court exclusion of a lessor-included offense

instruction impermissibly expanded the statutory authority of the
definition required to prove every element, thus it caused egre
gious harm. Petitioner requests that this court reverse and re--
mand for a new trial on the facts presented herein.and any other
relief deemed by this Honorable Court.

8.
CLAIM NO. FOUR FOR REVIEW:
The trial court erred when it denied defendant's request for a
lesser-included offense of aggravated assault in the jury charge.
(R-V-5)

FACTS FOR RECONSIDERATION

Petitioner again reincorporates the statement of facts in
claim numbers one, two, and three to support his contensions in
his argument and authorities presented herein for this court's
consideration and evaluation of this point of error no. four.

ARGUMENT FOR RECONSIDERATION

Petitioner argues that within the court's charge presented
to the jury during closing argument, petitioner's trial counsel
objected to the trial court overruling his objection to an im
proper jury charge that excluded a lesser-included offense of
aggravated assault. (R-V-5) The jury was only instructed on the
law pertaining to Capital Murder. (CR-I-298-306) Petitioner
Guillory shows as noted on point of error number three; Article
36.15 of the Code of Criminal Procedure; provides for the sub
mission of a jury instruction and objection to the trial court's
failure to submit a proper charge to the court.
Petitioner argues that during his criminal trial the proses,
cution failed to establish whether petitioner was the person who
shot and killed Raul Amaro on November 28, 2001 and the record

clearly reflects that the burden was and remains on the court to
prove all elements that petitioner Guillory is guilty of Capital
Murder. The fact remains that the jury was not charged with the
required lesser-included offense charge. Petitioner contends
that the law is well settled in that aggravated assault is a
lesser-included offense of murder and therefore of Capital Murder
Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App.2000) Petitioner
re-establishes in the instant appeal the holding in Goldsmith v.
State, 2014 WL 261007 (Tex.App.Hou.[14th Dist.]-2014) that
aggravated assault by threats did constitute a lesser-included

9.
offense of Capital Murder under the facts of the case. Peti
tioner argues that the trial court erred in not submitting a
lesser-included jury instruction on aggravated assault when
petitioner's counsel objected to the trial court's failure to do
so. Again Guillory shows this Honorable Court clear facts within
the record, as noted above.! in point of error number three above.
There was no evidence presented at trial to establish that the
individual who shot and kill Raul Amaro did so with the specific
intent to cause his death as required by Section 19.03 of the
Texas Penal Code. Nor was there"any" evidence that tied peti^i n
tionemas being the person who shot and killed the complainant
Amaro. The critical error that is in question here is was the
petitioner "denied" a Constitutional right when the jury was only
given the option of finding petitioner "guilty" or "not guilty"
without consideration of a lesser-included offense, as also ad
dressed in point of error number three. Where the elements of an
offense remains in doubt, but the defendant is [clearly not
guilty] of the greafcero6.f£ense.. The trial court was in error when
it denied the petitioner the requested jury charge. The jury,nas
being the judges of the facts,presented, was clearly denied crit
ical information that would have made a difference in this trial.
Therefore, without the aggravated assault charge, the jury was
denied the opportunity to find petitioner guilty of something
lesser than Capital Murder. Because of the trial court's failure
to so charge the jury, petitioner suffered some actual harm.
There can be no other remedy but to reverse the trial court's:
judgment and remand the case back for a new trial and any other
relief deemed by this Honorable Court.

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