Garza, Benito

iioz-ts
N0.PD-1102-15

o n \ C \M &I IN THE RECEIVED SN
UKlVD*^^1- COURT OF CRilWAL APPEALS
COURT OF CRIMINAL APPEALS

NOV 02 2015
OF TEXAS

>sta,

BENITO GARZA,
Appellant/Petitioner

VS.

THE STATE OF TEXAS/
Appellee/Respondent

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

FILED IN
in Appeal No .04-14-00682-CR COURT OF CRIMINAL APPEALS
from the ^y Q2^
Court of Appeals
. . , . Abel Acosta, Clerk
for the Fourth Judicial District 'wcm

San Antonio/Texas

( ORAL ARGUMENT REQUESTED )

Benito Garza

TDCJ# 01957561

3001 S. Emily Dr.
Beeville, TX 78102
 TABLE OF CONTENTS

Pg.

STATEMENT REGARDING ORAL ARGUMENT 1

STAEMENT OF CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

GROUNDS FOR REVIEW 4

GROUND ONE:

The Court of Appeals erred by holding that the trial court
did not err in denying a unanimity instruction in the jury
sharge 5-8

GROUND TWO AND THREE:

Garza was denied the effective assistance of counsel a trail
and on appeal, (trial one ;appealtwo) 9-11

PRAYER FOR RELIEF 12

CERTIFICATE OF SERVICE 13

APPENDIX "A"
(Memorandum Opinion from Court of Appeals)

APPENDIX "B"
(RR3,pgs.91-118, "robbery testimony")

APPENDIX "C"
(RR4,pgs.206-208, "request for lesser included offense instruction)

[Appendix A,B, and C in Original Copy only]

II
 INDEX OF AUTHORITIES

Pg.
Blott v. State,588 S.W.2d 588,592
(Tex.Crim.App.1979) 10
Hernandez v. State,726 S.W.2d 53,57
(Tex,Crim.App.1986). . 9,10
Kitchens v. State, 823 S.W.2d 256,258
(Tex.Crim. App.1991) . ." 6
Mercado v. State,615 S.W.2d 225,228
(Tex.Crim.App.1981) . .., 9
Mitchell v. State,6.8 S. W.3d640,642
(Tex.Crim.App.2002) 9
Narvaiz v. State, 840 S.W.2d 415,434
.(Tex.Crim.App.1992) 9
Ngo v. State,175 S.W.3d 738
(Tex.Crim.App.2005) . . . 6,7
Richardson V. U.S.,119 S.Ct.1707
(1999) .5
Schad v. Arizona, 111 S.Ct.2491 5
Solis v. State, 792 S.W.2d 95,100
(Tex.Crim.App.1991) 10
Strickland v. Washington,466 U.S.668,686
(1984) 9,10
White v. State,308 S.W.3d 467
(Tex.Crim.App.2006) 5

STATUTES / CONSTITUTIONS
Tex.Penal Code §1.07(23) 8
Tex,Penal Code § 19.02(b)(3) 6,7
Tex.Penal Code §38.04(b)(3) 11,12
Texas Code of Criminal Procedure Art. 36.29(a) .... 7
Tex.Const.Art.I, §10 9
Tex.Const.Art.V,§13 7

III
 NO. PD-11Q2-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

BENITO GARZA,
Appellant/Petitioner

vs.

THE STATE OF TEXAS,
Appellee/Respondent

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant/Petitioner respectfully submits this Petition for

Discretionary Review and moves that this Honorable Court grant

review of this cause and offers the following in support thereof:

STATEMENT REGARDING ORAL ARGUMENT

The Appellant/Petitioner requests oral argument in this case

because such argument may assist the Court in applying the facts

to the issues raised. It is suggested that oral argument may

help clarify the issues due to the liklihood that Appellant/
Petitioner failsto convey his points in written form due to the

fact that he is not a lawyer or paralegal.
 STATEMENT OF CASE

This case involves jury instruction error on unanimity, in a

Felony Murder charge under TEX.PENAL CODE §19.02(b)(3) , naming

two alternate felonies, EVADING ARREST IN A VEHICLE and ROBBERY

THREATS. The victim in this case died as a result of injuries

sustained in a motorcycle accident. On appeal Garza raised two
points of error addressing jury unanimity and erroneous jury

instruction. This case is distinguished from the case relied

upon by the Court of Appeals in affirming the conviction. The

Appellant/Petitioner is not a lawyer or paralegal and is pro

ceeding pro se to advance his claims seeking relief.
 STATEMENT OF PROCEDURAL HISTORY

In Cause No.2013-CR-9168, Garza was charged with the offense

of Felony Murder under TEX.PENAL CODE §19.02(b)(3). Garza was

convicted by a jury and sentenced to 60 years in prison. A timely

appeal was taken to the Fourth Court of Appeals, San Antonio under

cause no. 04-14-00682-CR. The Appeals Court Affirmed the trial

court's judgment in an opinion by Justice Patricia O.Alvarez,

delivered and filed on August 5,2015. No motion for rehearing

was filed. On this p(6 day of QCToQfc (I ,2015, this Petition
for Discretionary Review was timely forwarded to the Court of

Criminal Appeals for filing pursuant to Rule 9.2(b), Texas Rules

of Appellate Procedure.
 GROUNDS FOR REVIEW

i

ONE. (RR3-pgs.90-119)

The Court of Appeals erred by holding that the trial court

did not err in denying a unanimity instruction in the jury charge

TWO. (RR4-206-208) (RR3-pg90-119)

Garza was denied the effective assistance of counsel at trial

Garza was denied the effective assistance of counsel on appeal

A.
 GROUND ONE FOR REVIEW

The Court of Appeals erred by holding that the trial court

did not error in denying a unanimity instruction in the jury charge.

Argument and Authorities

In the instant case,.:the court of appeals relied on White v.

State, 308 S.W.3d 467. This case is distinguished from that case

by the difference in the underlying felonies. In White, the

underlying felonies are unauthorized use of a vehicle and evading

arrest or detention. The White Court held that those felonies

were basically morally and conceptually equivalent, and there

fore jury unanimity was not required. The White Court went on

to erroneously redefine the word "felony" as "manner or means that

make up the felony element in §19.02(b) (.3) ." The Supreme Court in

Richardson v. U.S., 119 S.Ct.1707(1999). Stated that the Constitu

tion itself limits a State's power to define crimes in ways that

would permit juries to convict while disagreeing about means, at

least where the definition risks serious unfairness and lacks

support in history and tradition. Schad v. Arizona,501 U.S.at

632-633, 111 S.Ct.2491 (plurality opinion)

The main point of this case is that the Petitioner is actually

innocent of the Robbery Threat offense, which is one of the two

named underlying felonies in the insdictment.(see RR3,pgs 90-119,

Appendix "B", "robbery" testimony). The prosecutors charged the

robbery as an underlying felony as a means of submitting preju

dicial extraneous offense evidence, to taint the jury. The state

had no intention of relying on this offense to obtain a conviction
".^"c^'."u "since general verdicts will stand if at least one of the

'theories' alleged is proved." Kitchens v. State,823 S.W.2d 256,

258 (Tex.Crim.App.1991). When the White Court redefined the

'felony' in Section 19.02(b)(3) dispensing with jury unanimity,

it opened the door for prosecutors over-charging a offense to

maximize the crime in the minds ,of the jurors, with an obligation

of only proving one of however many paragraphs are applied.

Petitioner would show that the White case conflicts with its

prior holdings in Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App.

2005). The Ngo case involved credit card abuse based on an ;.

indictment alleging seperate acts of stealing credit card, reciev-

ing stolen card, and fraudulently presenting it. [all are manner

or means of commiting credit card abuse][emphasis mine throughout]

Defendant in that case appealed alleging denial of right to a

unanimous verdict. The Eastland Court of Appeals reversed and

remanded. State's petition for review was granted. The Court of

Criminal Appeals held en banc, Cochran,J that:

(1) instruction was erroneous in failing to require juror

unanimity on at least one of the three disjunctively submitted

offenses, i.e.,stealing credit card, recieving stolen card, or

fraudulently presenting it, and

(2) the error caused egregious harm.

Petitioner points out that the holdings of the Court of Criminal

Appeals in Ngo fit the circumstances of this case because the

underlying offenses named in the indictment require different

elements of proof to connct them to the cause of death. A look

at the indictment in this case will reveal the manner and means

that did not require jury unanim ity. It was the multiple ways

6.
of operating a motor vehicle in a dangerous way. (see Mem.Op.

pgs.2-3,Appendix "A") "The phrase "manner or means" for an offense

describes "how" the defendant committed the specific statutory

criminal act, but it does not mean that the state can rely upon

a laundry list of different criminal acts and let the individual

jurors take their pick on which each believes the defendant

committed." Vernon:'s Ann-Texas Const .Art. 5§13 ; Vernon's Ann.

CC.P. art.36.29(a). see Ngo v. State, 175 S.W.3d 738,745-47

(Tex.Crim.App.2005).

In the instant case, the victim dies as a result of injuries

sustained in a car wreck. The "dangerous act" that caused the

death was alleged in the indictment as "multiple "ways of driving

dangerously, (see Mem.Op.pgs.2-3, Appendix "A").

The charged offense is murder, which is a "specific" statutory

criminal act. The "how" or "manner or means of casuing death is

the operation of a motor vehicle. Therefore "Robbery" cannot be a

manner or means of committing murder. You cannot operate a motor

vehicle by "robbing" it. The same principle applies to evading •:

arrest. You can operate a vehicle to evade arrest, but you cannot

evade arrest as a "manner or means" of operating that vehicle.

Petitioner would contend, that the "felony" named in §19.02(b)(3)

is the offense that provides culpability to the offense and

designates the elements to be proven beyond a reasonable doubt.

In this case, the Robbery, and the Evading Arrest were "seperate"

offenses, and should have been charged as- seperate "counts" not

under sperate "paragraphs."
 This case is a reminder of "why" juror unanimity was established

in the first place. So a jury would decide a case based on the

evidence presented in "ONE" charge. By dispensing with juror

unanimity there is no way to prevent potentially prejudicial

evidence from coming before the jury under the "guise" of a

"theory" or different way of committing the same offense. This

undermines the whole concept of Due Process and Rules of evidence.

Based on the issues raised in this Petition. Garza has shown

this Court that there are issues related to the denial of a

unanimity instruction that must be addressed by this Court.

Somehow there needs to be precedent that prevents dispensing

with jury unanimity on seperate felonies charged under a single

count. A jury should be limited to hearing evidence "only on

those elements it will base its verdict on." Paragraphs should

not be used to present evidence that the state is not required

to prove to obtain a conviction.

White v. State, unlawfully dispenses with juror unanimity by

redefining a word that is clearly defined in the Penal Code in

which it is useed. Tex.Penal Code § 1.07 "Felony" means an offense

so designated by law or punishable by death or confinement in a

penitentiary.

Conclusion

Garza was entitled by right to a unanimity instruction. It

was error to deny that instruction and the Court of Appeals erred

when it found no error. Garza was egregiously harmed by the

denial of that right and the ability for the state to unalwfully

charge an offense it didn't have to prove affecting the verdict.
 GROUNDS TWO AND THREE FOR REVIEW

Garza was denied the effective assistance of counsel at trial

and on appeal. U.S.C.A.6

Argument and Authorities

The United States Supreme Court held in Strickland v. Washington,

466 U.S.668, 686 (1984), that the benchmark for judging any claim

of ineffective assistance of counsel is whether counsel's conduct

so undermined the proper functioning of the adversarial process

that the trial cannot be relied upon as having produced a just

result. The Court in Strickland set forth a two-part standard,

which has been adopted by Texas. See Hernandez v. State,726 S.W.

2d 53, 57(Tex.Crim.App.1986). First, the defendant must prove

by the preponderance of the evidence that counsel's representation

fell below an objective standard of reasonableness. Mitchell v.

State, 68 S.W.3d 640, 642(Tex.Crim.App.2002); Narvaiz v. State,

840 S.W.2d 415,434(Tex.Crim.App.1992)(citing Strickland v. Washing

ton, 466 U.S. at 688). Reasonably effective assistance of counsel

does not require error-free counsel, or counsel whoce competency

is judged by hindsight. Mercado v. State, 615 S.W.2d 225, 228

(Tex.Crim.App.1981). Second, there must be a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. I_d. A "reasonable probability"
is " a probability sufficient to undermine confidence in the

outcome." Id.

Article I,Section 10 of the Texas Constitution also requires

that a criminal defendant recieve effective assistance of counsel.

However, the Texas constitutional provision does not create a ?:. :

9.
standard that is more protective of a defendant's rights than

that established in S-tr:rck3raad Black v. State, 816, S.W.2d 350,357

(Tex.Crim.App.1986)) citing Hernandez v. State, 726 S.W.2d 53 (Tex.

Crim.App.1986). Therefore,an analysis of the effectiveness of

the applicant's trial counsel in the primary case pursuant to the

Strickland standard does not satisfy either the federal or state

constitutional requirement.

The court will not use hindsight to second-guess a tactial

decision made by trial counsel, nor will the fact that another

attorney might have pursued a different course support a finding

of ineffectiveness. Solis v. State,792 S.W.2d 95, 100(Tex.Crim.

App,1990); Blott v. State,588 S.W.2d 588,592 (Tex.Crim.App.1979).

When;'.evaluating an ineffective assistance claim, the reviewing

court looks at the totality of the representation and the particu

lar circumstances of the performance, the court indulges a strong

presumption that he acted within the wide range of reasonable

professional assistance. Id.

At Trial;...

Garza hereinnraises the ineffective assistance of counsel for

not subjecting the State's case to meaningful adversarial testing

on the robbery offense alleged in the indictment as a underlying

felony. It can be discerned from the record (RR3-pgs.90-119)
that Garza was unlawfully charged with Robbery. Trial Counsel

made no effort to quash the indictment based on the robbery

allegation, nor did he make an attempt to sever the robbery charge

fromv.ithe evading arrest charge. The prejudicial affect of the

extraneous offense evidence presented "through" the robbery charge

10
seriously affected the jury's decision making process and it

would be unwise to think that it made no difference in the length

of the sentence imposed by that jury. The fact that the robbery

charge required different elements to be proven, was enough to

move a reasonable attorney to use some form of challenge to sever

the robbery. The failure to challenge this through a motion to

quash or some similar pre-trial motion potentially forfieted

Garza's ability to challenge this robbery issu on appeal.

Trial counsel also failed to object to the jury charge after

being denied a unanimity instruction as well as lesser included

offense instructions. (Appendix C) It is reasonable to expect

trial counsel to object and preserve for appeal issues that he

himself raised to the court.

"':: -- -• On Appeal

Garza was denied the effective assistance on appeal when the

appellate attorney appointed by the court failed to raise the

insufficiency of evidence on the robbery charge and demonstrate

the prejudicial affect that charge had on thejury. The robbery

charge being found insufficiently supported by evidence would

"support" the error and harm on the grounds raised addressing

jury unanimity.

Appellate counsel also failed to raise the denial by the court

of the lesser included offense under §38.04 (see Appendix C).

These errors by the appellate counsel potentially prejudiced his

ability to challenge these issue by any other menas. It is not

reasonable to forfiet reversible error by failing to raise it

on direct appeal.

11
 PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this

Court grant this Petition for Discretionary Review, and that

the case be set for submission; that after submission this Court

reverse the judgement of the Court of Appeals and reform the

judgement to.reflect a remand to the trial court for new trial

on the single count of Evading Arrest Causing Death under Texas

Penal Code §38.04(3)(3).

Respectfully submitted,

Benito Garza, Pro se

TDCJ# 1957561

3001 S. Emily Dr.
Beeville, TX 78102

12.
 CERTIFICAT OF SERVICE

The undersigned Appellant/Petitioner hereby certifies that a

true and correct copy of the foregoing Petition for Discretionary

Review has been mailed, U.S. mail, postage prepaid, to the District

Attorney's Office Bexar County,Texas at Paul Elizondo Tower,

101 W. Nueva Street, San Antonio, TX 78205. And also to the

Office of the State Prosecuting Attorney(Attn.Lisa McMinn),P.O.

Box 12405, Austin, TX 78711, on this the 2J& day of OCT0ft£R> 2015

r^Jl^A) s