Almaguer, Arturo Sanchez

"It^'IS
NO • PD-rmVlS ORIGINAL
IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS •

ARTURO SANCHEZ ALMAGUER,
Appellant/Petitioner
VS.

THE STATE OF TEXAS,
Appellee/Respondent

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
PRO SE

RECEIVED
In Appeal No. 13-14-00312-CR ©OURT OFCRIMINAL APPEALS
from the A(jg 2Q 2015
Court of Appeals
for the Thirteenth Judicial District AB}©IAC
Corpus Christi - Edinburg, Texas

FILED IN
COURT OF CRIMINAL APPEALS

AUS 27 2315
Arturo Sanchez Almaguer
Abel Acosta, Clerk TDCJ#01918635

W.G. McConnell Unit

3001 S. Emily Dr.
Beeville, Texas 78102
 LIST OF PARTIES

APPELLANT

Arturo Sanchez Almaguer

APPELLEE

The State of Texas

DEFENSE COUNSEL AT TRIAL

Rogelio Garza Pam Alexander
310 W. University Dr. 4009 S. Sugar Road
Edinburg, Texas 78539 Edinburg, Texas 78539
(956) 316-1375 (956) 397-2754

STATESS ATTORNEY AT TRIAL

Victoria Muniz

Hidalgo County DA's Office
Asst.Criminal District Attorney
100 N. Closner

Edinburg, Texas 78539

APPELLANT'S ATTORNEY AT 13th COURT OF APPEALS

Oscar Rene Flores

O. Rene Flores, P.C.

1308 S. 10th Avenue

Edinburg, Texas 78539

STATE'S ATTORNEY ON APPEAL

Theodore "Ted" Hake

Hidalgo County DA's Office
Appellate Division
100 N. Closner

Edinburg, Texas 78539

STATE'S PROSECUTING ATTORNEY

P.O. Box 12405

Austin, Texas 78711

n.
 TABLE OF CONTENTS

IDENTITY OF PARTIES ii

INDEX OF AUTHORITIES iv,v

STATEMENT REGARDING ORAL ARGUMENT £g.l

STATEMENT OF CASE Pg.2

STATEMENT OF PROCEDURAL HISTORY Pg.3

GROUNDS FOR REVIEW Pg.4

GROUND NUMBER ONE

Court of Appeals erred by not following established precedent in the

review to determine if the evidence was legally sufficient to support the

capital murder conviction.

GROUND NUMBER TWO

Court of Appeals was without applicable precedent to "test" proof

"beyond a reasonable doubt" on appeal.

ARGUMENT NUMBER ONE Pg-5

ARGUMENT NUMBER TWO Pg.9

PRAYER FOR RELIEF. Pg.14

CERTIFICATE OF SERVICE Pg.15

COA, MEMORANDUM OPINION. .(?^??!??^. !r°.?FJ9Jnf4. ?niY).. -Appendix "A"
(attached to original only)
APPELLANT'S BRIEF • Appendix "B"

ill.
 INDEX OF AUTHORITIES

Brown v. State,716 S.W.2d 939,944

(Tex. Crim.App. 1986) pg.4,5

Burks v. United States, 437 U.S.1,18,98 S.Ct.2141, 57 L.Ed.2d 1

(1978) pg.8,14

Clayton v. State,235 S.W.3d 772,778
(Tex.Crim.App.2007) pg.7

Geesa v. State,820 S.W.2d 154,162

(Tex. Crim.App. 1991) pg.9

Goff v. State,931 S.W.2d 537,550

(Tex.Crim.App. 1996) pg.4,5,10

Guevara v. State, 152 S.W.3d 45,49-52
(Tex. Crim.App. 2004) pg.7

Hooper v. State,214 S.W.3d 9,15-16
(Tex.Crim.App.2007) pg.4,7,11

Jackson v. Virginia,443 U.S.307,318-19,S.Ct.2781,2788-89,
61 L.Ed.2d 560 (1979) pg.7,14

King v. State,29 S.W.3d 556,564-65
(Tex. Crim.App. 2000) pg.7

Langs v. State,183 S.W.3d 680,686
(Tex. Crim.App. 2006) pg.8

Moreno v. State,755 S.W.2d 866,867 , 7
In re Winship,297 U.S.358,377,25 L.Ed.2d 368,377, 90 S.Ct.1068,
51 Ohio Op.2d 323 (1970) pg.9

RULES / STATUTES
Texas Code of Criminal Procedure Art.36.13 pg.5
 NO, PD-o^-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

ARTURO SANCHEZ ALMAGUER, PRO SE

Petitioner/Appellant

VS.

THE STATE OF TEXAS

Respondent/Appellee

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Petitioner/Appellant 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 Petitioner/Appellant DOES NOT request an oral argument
in this case because he believes the facts raised can be discerned
without further explanation or assistance. '

1.
 STATEMENT OF CASE

This is a capital murder case with a mandatory life sentence. In 1988,

Wilda and Evan Squires were found murdered in their home. In 2011, some

23 years later, Almaguer was introduced as a suspect based on DNA taken from

forensic samples of feces precerved from the time of the murders. No other,

evidence linked Almaguer to the crime. The State built a circumstantial case

regarding the fecal matter by unsupported speculation. This case-revolves

entirely around the rationality of the inferences about the fecal matter.

2.
 STATEMENT OF PROCEDURAL HISTORY

In Cause Number CR-1214-12-D Almaguer was charged with Capital Murder in

the course of burglary by theft. The jury found Almaguer guilty and the Life

Sentence was imposed based on the guilty verdict. The conviction was appealed.

On the 25th day of June, 2015, in an unpublished opinion, the Thirteenth Court

of Appeals Affirmed the judgement of the trial court. A Motion for rehearing

was filed and subsequently denied on the 24th of July, 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.

3.
 GROUND FOR REVIEW

I.

PETITIONER ASSERTS THAT THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE

EVIDENCE WAS LEGALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUPPORT A CAPITAL

MUDER CONVICTION.

A) The Court of Appeals erred in considering evidence under the "parties theory"
without a lawful jury charge on the elements of criminal responsibility. This
is contrary to this Court's rulings in: Goff v. State,931 S.W.2d 537,544 (1996);
and Brown v. State,716 S.W.2d 939,944 (1986). [see COA, Mem.Op.,pgs.6-7,sec.3
"Party to the Offense."; and Appellant's Brief pgs.19-27]

B) The Court of Appeals erred by not distinguishing whether the jury verdict
was based on reasonable inference supported by evidence, or speculation, in
determining that Almaguer "was the shooter" and therefore possessed the requisite
intent to kill. This is contrary to this Court's rulings in Hooper v. State,
214 S.W.3d 9,13 (2007); and Threadgill v. State,146 S.W.3d 654,665 (2004).[see
COA, Mem.Op.,pg.6,sec.2 "Murder"; and Appellant's Brief pg.12,14-15]

II.

WITH CONSIDERATION OF PREVIOUS ATTEMPTS TO DEFINE AND APPLY THE PROOF BEYOND

A REASONABLE DOUBT STANDARD, PETITIONER RESPECTFULLY AND HUMBLY SETS FORTH

THREE PROPOSITIONS TO PERSUADE THIS HONORABLE COURT TO "SET NEW PRECEDENT."

A) Beyond a Reasonable Doubt can be clearly defined and applied.

B) Beyond a Reasonable Doubt is a "legal formula" which creates a threshhold
of proof and narrows the theories from which inferences may be drawn.

C) As a "formula" Beyond a Reasonable Doubt can be applied to "test" the
evidence, by a jury or in an appellate court sufficiency of evidence review.
 GROUND ONE ARGUMENT

Petitioner asserts that the Court of Appeals erred because there is no "rational

inference" supported by evidence that proves "beyond a reasonable doubt" that

Almaguer, acting as principal, possessed the requisite intent to murder, with

the objective of committing or attempting to commit burglary by theft.

A). "Parties of Offense."

The Court of Appeals, and jury, erroneously considered evidence under the

"parties theory." The jury DID NOT recieve the ,aw on parties charge from court.

Texas Code of Criminal Procedure Art.36.13 states "the jury is the exclusive

judge of facts, but is bound to recieve the law from the court and be governed

thereby." "The test for ascertaining whether a person is a party to an offense

by virtue of his own conduct or by conduct of another for which he is criminally

responsible [is]: 'the trial court should first remove from consideration the

acts and conduct of the nondefendant actor. Then, if the evidence of the conduct

of the defendant then on trial would be sufficient, in and of itself, to sustain

the conviction, no submission of the law of principals is required—On the

other hand, if the evidence introduced upon trial of the cause shows, or

raises an issue, that the conduct of the defendant then upon trial is not

sufficient, in and of itself, to sustain a conviction, the State's case.rests

upon the law of principals and is dependant, at least in part, upon the conduct

of another. In such a case, the law of principals must be submitted and made

applicable to the case." see Brown v. State,716 S.W.2d 939,944 (Tex.Crim.App.

1986). "Under the law of parties, the State is able to enlarge a defendant's

criminal responsibility to acts in which he may not be the principal actor...

Where there is no charge on the law of parties a defendant may only be convicted

on the basis of his own conduct." see Goff v. State,931 S.W.2d 537,544 (Tex.

Crim.App.1996).
"The judge's duty to instruct the jury on the law applicable to the case

exists even when defense counsel fails to object to inclusions or exclusions

in the charge; this may require the judge to sua sponte provide the jury with

the law applicable to the case." see Taylor v. State,332 S.W.3d 483,486 (Tex.

Crim.App.2011).

There is no question that the "parties theory" played a significant role in

how the Court of Appeals, as well as the jury, reached conclusions regarding

whether the evidence supported a finding of guilt as principal or accomplice.

The jury during deliberations at guilt/innocence, requested the Court to

clarify the law of parties. And it is clear that the Court of Appeals used the

law of parties to determine sufficiency.

In this case^the parties theory was introduced during voir dire to influence

the inferences to be drawn from the evidence. The state vacillated between

Almaguer being the principal and accomplice to overcome the obvious lack of

evidence and did abuse the law of parties. The only evidence linking Almaguer

to the crime was DNA obtained from fecal matter, which was not in the immediate

vicinity of the murders. All inferences beyond a finding that the fecal matter

could reasonably be linked to Almaguer are purely unsupported speculation. There

is no direct or circumstantial evidence to support any speculations "created"

to make a finding of guilt.

B)."Reasonable Inference or Speculation?"

The Court of Appeals failed to distinguish between reasonable inference

supported by evidence and speculation, in determining whether there was rational

proof beyond a reasonable doubt, that Almaguer intentionally murdered the victims

of this offense. " The role of a reviewing Court is that of a due process safe

guard, ensuring only the rationality of the trier of fact's finding of essent

ial elements of the offense charged beyond a reasonable doubt." see Moreno v.

State, 755 S.W.2d 866,867 (Tex.Crim.App.1988).
The Court of Criminal Appeals has affirmed murder convictions based soley on

inferences raised by circumstantial evidence, see e.g. Clayton v. State,235 3d
772,778-782 (Tex.Crim.App.2007); Guevara v. State,152 S.W.3d 45,49-52 (Tex.Crim.

2004; King v.State>29 S.W.3d 556,564-65 (Tex.Crim.App.2000). An inference is a

conclusion reached by considering other facts and deducing a logical consequence
from them, see Hooper v. State,214 S.W.3d 9,15-16 (Tex.Crim.App.2007). Specu
lation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. A conclusion reached by speculation may not be completely
unreasonable , but it is not sufficiently based on facts or evidence to support
a finding beyond a reasonable doubt. Id. Each fact need not point directly and
independantly to the guilt of the appellant as long as the cumulative effect of
all the incriminating facts are sufficient to support the conviction. Id.at 13.
Petitioner asserts that the fecal matter from which a DNA test that could not

exclude Almaguer, is circumstantial evidence, and the ONLY evidence from which

all inferences were drawn. Any inferences beyond a link between Almaguer and the
fecal matter is purely speculation. The state created an "imagery association"
between a bowel movement and the bathroom, to lead the jury to an unreasonable
inference that Almaguer was "in the bathroom" which was logically shown to be
the location of the shooter. It is irrational and illogical to use this imagery
association to infer that the person who deposited the fecal matter, is the same

person who was in the bathroom shooting the victims. Nor can it be rationally

inferred that Almagaguer; was criminally responsible for the actions of the person
in the bathroom based on fecal matter alone.

"The reviewing Court is required to ensure that the evidence presented actually

supports a conclusion that the defendant commited the criminal offense of which

he is accused."see Williams v. State, 235 S.W.3d 742,750(Tex.Crim.App.2007);

(citing Jackson v. Virginia, 443 U.S.307,318-19, 99 S.Ct.2781,2788-89, 61 L.Ed.

2d 560 (1979).
Additionally, "the element distinguishing capital murder from felony murder is

the "intent to kill". Felony murder is an unintentional murder committed in the

course of committing a felony while capital murder includes a intentional murder

committed in the course of robbery [burglary] see Threadgill v. State,146 S.W.

3d 654,665 (Tex.Crim.App.2004). [instant case emphasis]

The underlying offense in this case -is burglary. Burglary itself has an

underlying element, see Langs v. State,183 S.W.3d 680,686 (Tex.Crim.App.2006).

In the instant case, the state alluded to "theft" as the underlying offense of

the burglary. To follow the logic of establishing the requisite "intent to kill",

it would require the state to prove that Almaguer had the intent to kill as the

primary means of obtaing property from the residence. To support a capital

murder conviction, the murder would have to take place prior to, or simulataneously
with, the entering of the residence or the theft. If, the murder took place
"after" the initiation of the burglary or theft, it is at best a felony murder.

The sequence of events is the deciding factor between a felony murder and a

capital murder. There is no evidence to make this determination in the instant

case.

Accordingly, Petitioner moves this Honorable Court to reverse the Court of

Appeals judgement affirming the conviction, and enter a judgement of aquittal

based on the finding that the evidence is legally insufficient to support a

capital murder conviction, see Burks v. United States,437 U.S.1,18, 98 S.Ct.

2141,57 L.Ed.2dJ.l (1978). Holding, if the record evidence is legally insufficient

under the Jackson rule, the reviewing Court must render a judgement of aquittal.

see also Tovar v. State, 165 S.W.3d 785 (Tex.App.— San Antonio 2005).

8.
 GROUND TWO ARGUMENT

Petitioner asserts' that the "Beyond a Reasonable Doubt Standard" is not

limited to a jury instruction at trial, but is a standard to be applied by an

Appellate Court to test evidence in a sufficiency review.

The Texas Legislature has not defined the term "reasonable doubt" and it was

not until 1991 that the Court of Criminal Appeals adopted a definition of the

term, see Geesa v. State,820 S.W.2d 154,162 (Tex.Crim.App.1991). Geesa's

definition has now been overruled by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.

App. 2000). "Despite its early use in American jurisprudence, the phrase

'reasonable doubt' appears in neither our federal or state constitutions."

see Paulson v. State, 991 S.W.2d 907,911 (Tex.App.-[14th Dist.] 1999), rev'd

on other grounds, Paulson 28 S.W.3d 570; see also In re Winship,297 U.S.358,377

25 L.Ed.2d 368,377, 90 S.Ct.1068, 51 Ohio Op.2d 323 (1970) (Black J. dissenting),
We know, of course, that the due process clause of the Fourteenth Amendment

to the United States Constitution protects an accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged. Winship, 397 U.S.at 364. Although the "beyond

a reasonable doubt" standard is a requirement of due process, the federal

constitution neither prohibits trial courts from defining reasonable doubt nor

requires them to do so as a matter of course. Victor v. Nebraska,511 U.S. 1,5,

127 L.Ed.2d 583, 114 S.Ct.1239 (1994). Moreover, the United States Constitution

does not require that any particular form of words:be used in advising the jury

of the prosecutor's burden of proof.-see (citing Rodriguez v. State, 96 S.W.3d

398,400-01 (Tex.App.-Austin[3rd Dist.] 2002). "The role of the reviewing Court

is that of a due process safeguard, ensuring only the rationality of the trier

of fact's finding of the essential elements of the offense [beyond a reasonable

doubt]'.' see Moreno v. State,755 S.W.2d 866,867 (Tex.Crim.App. 1988) [emphasis

added by petitioner].
 Petitioner proposes that the foundational purpose of the beyond a reasonable

doubt standard, is to give great weight to the presumption of innocence and
firmly attach a "heavy burden of proof" on the state. If we view the standard

of proof as a "formula" used to find a solution to a specific type of legal
problem- we can then find a plausible definition and application of the proof
beyond a reasonable doubt standard at trail, or on appeal.

This Court has recognized that individual jurors may require different levels
of "proof" in order to be convinced beyond a reasonable doubt, see Goff v. State,
931 S.W.2d 537,550 (1996) . Simply put, "proof" must be decided by the jury,
and "beyond a reasonable doubt" must be decided by rule of law.

The term "beyond" is a transcendental legal term used in law, just like "pi"
in mathmatics. Pi is a constant number without definition. You cannot define
pi, but anyone can "apply it" to find a specific solution. And so it is with
the term "beyond". You cannot define it, but anyone can apply it as part.of an
equation to find a solution to the problem of reasonable doubt.

The beyond a reasonable doubt standard is applied to any case involving
circumstantial evidence, which requires the jury to reach a verdict by drawing
inferrences from theory and evidence. Since the burden is on the State, each

element must be proved from the "same line of reasonaing." The inferrences

relied upon to prove the elements of the offense, must connect to a"single"
theory inferred from the evidence. Elements proved through 'multiple theories,*
would not meet the burden of proof. Each element must "track" the relied upon
theory, and interconnect with all other elements to be considered proved beyond
a reasonable doubt. Evidence submitted to support a theory, "must" be directly

and unquestionably connected to the events and circumstances of the charged
offense. Evidence by theory alone does not meet the burden of proof.

10-
 PROPOSED DEFINITIONS

Circumstantial Evidence: evidence that tends to prove a factual matter based

on inference drawn from theory of events and circumstances.

Proof: parsuasion that a fact exists.

Beyond: a transcendental term that limits.

Doubt: question of proof based on "direct" evidence; resolved by jury.

Reasonable Doubt: a legal question of proof based on "circumstantial" evidence,

created when there is "more than one" equally compelling theory from which a

juror is to draw inferrences.

Beyond a Reasonable Doubt: a "legal formula" applied by rule of law to resolve

matters of reasonable doubt, i.e. (reasonable doubt + presumption of innocence

= aquittal).

Proof Beyond a Reasonable Doubt: a threshhold of proof from which no verdict may
fall below, created by applying a legal formula as rule of law, which gives great
weight to the presumption of innocence, and requires a verdict to rest on "one"

theory from which the jury reasonably inferred guilt. The inferrences must be

trackable to one theory regarding evidence relied upon to prove each element of

offense beyond a reasonable doubt. Each element to be proved must be "traceable"

to a proving factor with a direct and undisputable connection to the charged

offense* Circumstantial evidence cannot exist on theory alone and must be

directly Inked and corroborated by "real" evidence, see Hooper v. State, 214 :~:

S.W.3d 9,13 (Tex.Crim.App.2007).

HYPOTHETICAL JURY CHARGE

The State has the burden of proving each element of the offense charged beyond

a reasonable doubt. This requires the State to narrow the evidence to a single

theory from which you may draw! inferrences in reaching your verdict.

11.
 You are hereby instructed that the case before you involves circumstantial

evidence, requiring you to reach a verdict from inferrences drawn from the

evidence presented. If, after careful and impartial consideration of all the

evidence in this case, you are faced with reasonable doubt as defined in these

instructions, regarding any element of this offense, you will apply the weight

of the preumption of innocence, giving the defendant the benefit of the doubt,

and enter your verdict as not guilty, by rule of law.

PROPOSED FORMULA APPLIED TO INSTANT CASE

Petitioner relies on the instant case to demonstrate the ffectiveness of

applying a "formula" to determine if the evidence supports a finding of guilt

"beyond a reasonable doubt." The evidence in this case fails on at least two

levels: 1) the inferrences were drawn from an uncorroborated theory that said

Almaguer "was the shooter" based on fecal matter linked by DNA test. 2) The

State presented "more than one theory" from which the jury was expected to

draw inferrences in reaching a verdicti.: Specifically, that Almaguer was the

principal "AND" accomplice. The state introduced the law of parties at voir

dire but did not give a charge on "which" theory to follow in reaching a verdict.

The Court of Appeals erroneously followed this UN-charged parties theory.

Stepl Question: Does the verdict rest substantially or entirely on circum

stantial evidence? Answer: Yes, therefore inference becomes a factor to be

considered.

Step 2 Question: Is the theory from which inferrences can be drawn, supported

by evidence rationally and directly linked to the offense. Answer: No, the

theory from which inferrences were drawn is puely speculation without support

of any "real" evidence. Evidence fails to meet the burden of proof.

12,
Step 3 Question: Is there "more than one" equally compelling theory from which

to draw inferrences? Answer: Yes, the State presented Almaguer as the primary
actor and the accomplice. Evidence fails to move "beyond" reasonable doubt.

Step 4 Question: Is there a legal question of proof regarding reasonable doubt?

Answer: Yes, the theory is unsupported; and there is "more than one" theory
that is equally compelling from which to draw inferrences. Reasonable Doubt +

Presumtion of Innocence = Aquittal. Evidence is legally insufficient to support
a captial murder conviction with an underlying offense of burglary.
Petitioner has presented what he believes to be a strong proposition for
the necessity of a lawful Reasonable Doubt "Formula" and Definition. The

only burden put on the State by this formula is one that is reasonable and

worthy of creating a "high' standard of proof. The State must establish a

"single " theory from which a juror is to draw inferrences and each piece of
evidence presented by the state to "lead" a juror to an inferrence "must"

be directly linked to the events and circumstances of the offense charged.
Extraneous evidence with only a theoretical connection does not meet the

threshhold of proof "beyond" a reasonable doubt. This is especially important
when the charged offense has multiple levels of elements to be proved. "Each"
element must be proved in and of itself. The greater offense is not proved
by the lesser offense in a capital murder offense.

Accordingly, Petitioner humbly shows this Honorable Court that the current

precedent on the beyond a reasonable doubt standard is fundamentally flawed,

and humbly and respectfully moves this Court to "Set New Precedent" to restore

the weight of the presumption of innocence and re-establish the "heavy" burden
of proof on the state in proving it's case.

13,
 Petitioner humbly asserts that the evidence is legally insufficient to
support.a finding "beyond a reasonable doubt" as proposed in this Petition

for Discretionary Review. Based on the .application of the propsed "formula"
Petitioner moves this Court to reverse the Court of Appeals judgement affirming
the conviction, and enter a judgement of aquittal based on the finding that the
evidence is legally insufficient to support a conviction. Burks v. United States,
427 U.S. 1,18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) . Holding, if the record
evidence is legally insufficient under the Jackson rule, the reviewing Court
must render a judgement of aquittal. see also Tovar v. State,. 165 S.W.3d 785

(Tex.App-San Antonio 2005).

PRAYER FOR RELIEF

For -the reasons stated herein, it is respectfully submitted that the

Court of Criminal Appeals of Texas should GRANT this Petition for Discretionary
Review.

Respectfully submitted,
on this j^V day of ^JPyJ^V ,2015

By: Arturo
Arturo Sanchez Almaguer #1918635,pro
#1918635,c se
3001 S. Emily Dr.
Beeville, TX 78102

14.
 CERTIFICATE OF SERVICE

The undersigned pro se Appellant/Petitioner hereby certifies that a true

and correct carboncopy [without a copy of the Memorandum Opinion] of the

foregoing Petition for Discretionary Review has been mailed, U.S. mail,

postage prepaid, to the District Attorney, Appellate Division, Ted Hake,

100 Closner, Edinburg, Texas 78539, and the State Prosecuting Attorney, P.O.
Box 12405, Austin, Texas 78711, on this /°\ day of Au^uSr ,2015.

Arturo Sanchez Almaguer

15,
 CERTIFICATE OF SERVICE

I hereby certify that a carbon copy of the foregoing motion to suspend Rule
9.3 T.R.A.P. has been forwarded to the following parties by U.S.Mail postage
prepaid through the McConnell Unit mailroom. District Attorney, Ted Hake,
Appellate Division, 100 Closner, Edinburg, Texas 78539, and the State Prosecuting
Attorney, P.O. Box 12405, Austin, Texas 78711, On this (*\ day of
ftuc^yf ,2015.

Arturo Sanch^fe Almaquer

2.of 2.
COURT OF APPEALS MEMORANDUM OPINION

•'APPENDIX "A"

APPENDIX "A"
 NUMBER 13-14-00312-CR

COURT OF APPEALS /
THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ARTURO SANCHEZ ALMAGUER, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Longoria

Appellant, Arturo Sanchez Almaguer, was convicted by a jury on two counts of

capital murder and sentenced to life imprisonment. See Tex. Penal Code Ann.

§ 19.03(a)(2) (West, Westlaw through Chapter 46 2015 R.S.). Appellant challenges his

conviction by two consolidated issues. We affirm.
 I. Background

On November 12, 1988, Officer Roberto Moreno of the Weslaco Police

Department responded to a report of shots fired at the Magic Valley Trailer Park in

Weslaco, Texas. Upon his arrival, residents of the trailer park directed him to the Squires

home. Inside the trailer, he discovered a male and a female body on the floor. Officer

Moreno identified the bodies as those of Evan and Wilda Squires. Both appeared to have

been shot and neither was responsive. Both died as a result of the gunshot wounds.

Officer Moreno and other investigators who were called to the scene observed a pile of

human feces on the carpet in one of the rooms, as well as a pair of jean shorts covered

in feces. They also observed a box of silverware lying on the floor, a machete on a chair,

and a radio that appeared to have been wrapped up. Officer Patsy Pemelton observed

a trail of clothes leading from the side door of the trailer down to a drain ditch some

distance away. At the end of the trail, she found a bag containing clothes as well as a

torn shirt that was also covered in feces. Officer Pemelton took these items into evidence.

In 2005, the Texas Department of Public Safety ("DPS") DNA lab in McAllen,

Texas, obtained partial DNA profiles from the fecal stains on both the torn shirt found at

the end of the trail and the jean shorts found at the Squires' home. In 2012, the DPS

DNA lab received a known DNA sample from appellant. The lab compared the DNA

profiles from the shirt and jean shorts to appellant's DNA profile. DNA analyst Alejandro

Madrigal testified that appellant could not be eliminated as a potential contributor to the

DNA profiles found on the clothing. The State indicted appellant on three counts of capital

murder. See id. A jury convicted appellant on all three counts of capital murder. The
State elected to dismiss Count 1 after receiving the verdict, and appellant was

automatically sentenced to life imprisonment.1

II. Legally Insufficient Evidence

By his first issue, appellant asserts that the evidence is legally insufficient to

support a finding beyond a reasonable doubt that he intentionally caused the deaths of

Evan and Wilda Squires.

A. Standard of Review and the Applicable Law

The standard for reviewing the existence of legally sufficient evidence is whether

any rational trieroffact could have found all the essential elements of the charged offense

proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We

view the evidence in the light most favorable to the verdict. Id. The jury serves as the

exclusive judge of the facts, the credibility of the witnesses, and the weight given to the

witnesses' testimony. Williams v. State, 226 S.W.3d 611, 615 (Tex. App:—Houston [1st

Dist.] 2007, no pet.). The jury may believe all, some, or none of the testimony presented.

Id. In our review, we must uphold the jury's verdict unless it is irrational or if it is not

supported by more than a mere modicum of evidence. Gomez v. State, 234 S.W.3d 696,

702 (Tex. App.—Amarillo 2007, no pet.). Every single fact presented does not have to

point directly and independently to the defendant's guilt; it is sufficient if the conclusion is
reasonable by the cumulative effect of all the incriminating circumstances. Alexander v.

State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). The standard of review is the same

for both direct and circumstantial evidence. Frank v. State, 265 S.W.3d 519, 521 (Tex.

App.—Houston [1st Dist.] 2008, no pet.).

1 Appellant was also indicted for murdering more than one person during the same criminal
transaction. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West, Westlaw through Chapter 46 2015 R.S.).
 We measure the legal sufficiency of the evidence against the elements of the

offense as defined by a hypothetically correct jury charge. Curry v. State, 975 S.W.2d

629 (Tex. Crim. App. 1998). A hypothetically correct jury charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the

State's burden of proof or restrain the State's theory of criminal responsibility, and

adequately describes the particular offense for which the defendant was tried. Triplett v.

State, 292 S.W.3d 205, 210 (Tex. App.—Amarillo 2009, pet. ref'd).

Here, the State was required to prove that appellant murdered the Squires in the

course of committing or attempting to commit burglary. See Tex. Penal Code Ann.

§ 19.03(a)(2). Aperson commits murder if he "intentionally or knowingly causes the death
of an individual." See id. A person commits burglary if: (1) without consent of the owner,

(2) the person enters a habitation (3) with intent to commit a felony, theft, or assault. See
id. § 30.02 (West, Westlaw through Chapter46 2015 R.S.); Gardner v. State, 306 S.W.3d

274, 287 (Tex. Crim. App. 2009) (stating that appellant committed burglary when he

entered the victim's home without her effective consent and committed murder).

B. Discussion

Appellant argues that no evidence, circumstantial or otherwise, was presented to

show that he caused the death of either Mr. or Mrs. Squires. Although DNA evidence

was presented to show that appellant was at the crime scene, there was no evidence to

show that he was present at the time of the murders. Even though appellant does not

dispute that circumstantial evidence is sufficient to establish guilt, he contends that

convictions cannot be upheld if based solely on speculation. Appellant argues that the

only link to the offense was his DNA at the scene of the crime; that DNA alone is not
sufficient evidence to show he intentionally caused the death of the Squires; and that the

DNA evidence is also insufficient to show that he was in the course of committing or

attempting to commit a burglary.

1. Burglary

Here, the State was required to prove that appellant had entered the Squires' home

without their consent to commit a felony. See Tex. Penal Code Ann. § 30.02. The jury

heard evidence that the Squires appeared to have been awakened in the middle of the

night and at a time they were usually already in bed. The evidence showed that

appellant's DNA was discovered at the Squires' home in the form of feces on the carpet

and on more than one article of clothing. An investigator testified that the feces appeared

to be fresh because the odor strongly permeated the scene when he arrived a few minutes

after the shots were fired. Furthermore, silverware and other valuables were found in

what appeared to be odd places around the home and outside. A radio appeared to be

wrapped up as if in preparation of being moved elsewhere and a machete had been

placed on a chair. Appellant's DNA placed him inside the Squires' home and at the end

of the trail of clothing outside the home. Therefore, the evidence could have permitted

the jury to make a logical inference as to appellant's unlawful presence in the Squires'

home that night as well as his attempt to commit a burglary. See id.; Matamoros v. State,

901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (holding that the defendant committed

burglary because the evidence was sufficient to establish that the victim was sleeping in

his bed when the defendant entered the house without his victim's consent and the

defendant surprised and killed him).

2. Murder
 To prove the offense of capital murder, the State was required to show that

appellant intentionally or knowingly shot the Squires and caused their deaths. See id.

§19.03(a)(2). Appellant argues that no direct or circumstantial evidence was presented

that could prove he intended to cause the death of either Squires. Appellant contends

that the intent element for capital murder was not proven by the State because the State

did not present any evidence that he harbored ill will towards them and the record

contained no evidence of appellant's fingerprints at the crime scene or eye witnesses who

could place him near the scene.

However, contrary to appellant's contention that the record is bereft of any

evidence to infer that he possessed the requisite intent to commit murder, the evidence

showed that the Squires were shot at a close range of between two and four feet. At such

close proximity to the victims, the law presumes an intent to kill. See Sholars v. State,

312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd.); Childs v. State,

21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd.). Furthermore, the

bullet that exited Mr. Squires' body was lodged into the wall opposite the bathroom, and

Mr. Squires fell forward into the bathroom. Such placement of the bullet and his body

indicates that the shooter was in the bathroom when he shot Mr. Squires. The jury could

logically infer from this evidence and the presence of his feces elsewhere in the house

that appellant was the shooter because he was unable to control his bowels that night

and was in the bathroom when he shot Mr. Squires.

3. Party to the Offense

The evidence also indicates that multiple parties participated in the burglary.

Under a hypothetically correct jury charge, the jury could convict appellant if it found that
he was present at the commission of the offense and he encouraged or aided another

person in intentionally causing the death of the Squires. See Tex. Penal Code Ann.

§ 7.02(a)(2); King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000). In reviewing the

sufficiency of the evidence to support appellant's participation as a party to the offense,

we may consider evidence occurring before, during, and after the commission of the

offense and may rely on his actions showing an understanding and common design to do

the prohibited act. Gross v. State, 352 S.W.3d 238, 240 (Tex. App.—Houston [14th

Dist.]), aff'd, 380 S.W.3d 181 (Tex. Crim. App. 2012).

Appellant argues that while the evidence shows that someone intentionally and

knowingly caused the deaths of the Squires, the evidence does not prove that appellant

was present at the time the murders were committed. However, there were two sets of

footprints found in the Squires' home. Appellant's DNA establishes that he was there

shortly before the first police officer arrived because the fecal matter was still fresh. As
previously mentioned, his DNA was also found at the end of the trail leading from the

Squires' home to a ditch some distance away. The pajamas found outside on the trail
matched the pajamas of the victim left inside the home, further indicating a burglary was

being committed. Finally, neither Mr. nor Mrs. Squires owned any firearms. The jury

could reasonably inferfrom such evidence that appellant was present at the commission

of the burglary and that he or his accomplice brought a firearm with them with the intent

of murdering the inhabitants of the residence should they interfere with the burglary. See

Gardner, 306 S.W.3d at 287. Thus, considering the evidence of the events that occurred

during and after burglary, we conclude that the evidence presented was legally sufficient

to support appellant's conviction. We overrule appellant's first issue.
 III. Motion for a New Trial

By his second, third, and fourth issues, appellant asserts that the trial court abused

its discretion by denying his motion for a new trial because the court unconstitutionally

applied Texas Rule of Evidence 606(b) and improperly excluded juror testimony. We

review these issues together.

A. Standard of Review and the Applicable Law

We review a trial court's denial of a motion for a new trial under an abuse of

discretion standard, and we reverse only when the trial judge's opinion was so clearly

erroneous as to lie outside the zone within which reasonable persons might disagree.

Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App. 2011). If there is no such abuse

of discretion, we are not justified in reversing the judgment. Id. We view the evidence in

the light most favorable to the trial court's ruling. Lopez v. State, 428 S.W.3d 271, 278

(Tex. App.—Houston [1st Dist.] 2014, pet. refd). We do not substitute our judgmentfor

that of the trial court, but will uphold the ruling if it was within the zone of reasonable

disagreement. Weadv. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
Texas Rule of Evidence 606(b) provides that, during an inquiry into the validity of

a verdict or an indictment, a juror may not testify as to any matter or statement occurring

during the jury's deliberations, to the effect of anything on that juror's or another juror's
vote, or any juror's mental processes concerning the verdict or indictment. Tex. R. Evid.

606(b). The court may not receive a juror's affidavit or evidence of a juror's statement on

these matters. Id. However, a juror may testify under two exceptions: (1) as to whether

any outside influence was improperly brought to bear on any juror; or (2) to rebut a claim

that the juror was not qualified to serve. Id.

8
 B. Discussion2

Appellant argues that he is entitled to a new trial because of juror misconduct that

occurred during voir dire proceedings and during jury deliberations at trial. He contends

that during voirdire proceedings, the State introduced and explained the law of parties to

the venire panel even though the law of parties was not authorized by the charge of the

court. According to appellant, this constituted an "outside influence" that was improperly

brought to bear on jurors under the first exception of Texas Rule of Evidence 606(b).

Furthermore, appellant argues that, according to juror Maribel Martinez's affidavit, the jury

found appellant guilty based on the law of parties and there was not enough evidence to

convict him of murder as a principal. To support this contention, defense counsel

introduced into evidence notes from the jurors asking for clarification on the law of parties.

Appellant further asserts that the trial court abused its discretion in denying his motion for

a new trial because he was not given the opportunity to develop the record on appeal and

because Rule 606(b) was applied unconstitutionally.

The "outside influence" exception allows proof of external pressures that may

affect the verdict, and it is limited to those situations that occur both outside of the jury

room and outside of the jurors' personal knowledge and experience. See Tex. R. Evid.

606(b); Colyerv. State, 428 S.W. 3d 117,124 (Tex. Crim. App. 2014). The State brought

up the law of parties during voir dire, before the jury had even been selected. Maribel

2 Appellant argues that Texas Rule of Evidence 606(b) is unconstitutional as applied to him.
Appellant does not dispute that Texas Rule of Evidence 606(b) has been deemed constitutional by
provisions of both the federal and state constitutions and he does not give a substantial reason as to why
it should be held unconstitutional in his particular case. Appellant does not cite to any authority to support
his contention that Rule 606(b) is unconstitutional as it pertains to his case. Under Texas Rule of Appellate
Procedure 38.1, appellant must provide specific arguments and authorities that support his argument to
effectively brief a constitutional issue. See Tex. R. App. P. 38.1; Hicks v. State, 15 S.W. 3d 626, 630 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref'd.). Thus, because appellant has not complied with the briefing
requirements of Rule 38.1, we hold that appellant has waived appellate review of his constitutionality issue.
Martinez had not yet been designated as a juror, and was merely a member of the venire

panel. The information about party liability that she obtained from the State was acquired

prior to being selected to serve on the jury. See Tate v. State, 414 S.W. 3d 260, 264

(Tex. App.—Houston [1st Dist.] 2013, not pet.) (stating that a jury's decision was not

affected when a member of the venire panel acquired information relevant to the case

prior to being selected to serve on the jury). Furthermore, information given to the venire

members by the parties during voir dire is not an outside influence because it was part of

normal court proceedings. See Franks v. State, 90 S.W.3d 771, 802 (Tex. App.—Fort

Worth 2002, no pet.). Texas courts have considered factual or legal information conveyed

to the jurors by an unauthorized individual who seeks to affect the deliberations as an

"outside influence." See Colyer, 428 S.W. 3d at 125. Appellant does not allege that the

State provided factual or legal information to the jury outside of the normal proceedings

of the trial. Thus, the jury's consideration of the law of parties was not an "outside

influence" improperly brought to bear against the jury. See Tex. R. Evid. 606(b); see also

Franks, 90 S.W.3d at 802. The trial court did not abuse its discretion by denying

appellant's motion for new trial. We overrule appellant's second issue.

III. Conclusion

Under the facts of this case, we conclude that (1) the evidence was legally

sufficient to uphold appellant's conviction; and (2) the trial court did not abuse its

discretion by denying appellant's motion for a new trial.

10
We affirm the judgment of the trial court.

NORA L. LONGORIA
Justice

Do not publish.
Tex. R. App. P. 47.2(b).

Delivered and filed the
25th day of June, 2015.

11
APPELLANT'S BRIEF ON APPEAL

APPENDIX "B"

APPENDIX "B"
 13-14-UU31i!-
THIRTEENTH COURT OF APF
CORPUS CHRISTI, Tl
11/18/2014 3:37:39
'V
DORIAN RAMI
CLI.

NO. 13-14-00312-CR

In the Thirteenth Court^ of Appeals
Edinburg, Texas

Arturo Sanchez Almaguer
Appellant

v.

State of Texas
Appellee

On Appeal from Cause Number CR-1214-12-D
206th Judicial District Court of Hidalgo County, Texas
Hon. Rose Guerra Reyna Presiding

APPELLANT'S BRIEF

NO ORAL ARGUMENT REQUESTED O. RENE FLORES
State Bar Number 24012637
O. Rene Flores, P.C.
13 08 S. 10th Avenue
Edinburg, Texas 78539
(956) 383-9090 Telephone
(956) 383-9050 Facsimile
Counsel for Appellant

G COPY
i
V

IDENTITY OF PARTIES AND COUNSEL

Appellant Appellate Counsel
Arturo Sanchez Almaguer Oscar Rene Flores
0. Rene Flores, P.C.
1308 S. 10th Avenue
Edinburg, Texas 7 853 9

Trial Counsel
Rogelio Garza
310 W. University Dr.
Edinburg, Texas 78539
(956) 316-1375

Pam Alexander
4009 S. Sugar Road
Edinburg, Texas 78539
(956) 397-2754

Appellee Trial Counsel
State of Texas Victoria Muniz
Hidalgo County DA's
Office
Asst. Criminal
District Attorney
100 N. Closner
Edinburg, Texas 7 8539

Appellate Counsel
Theodore "Ted" Hake
Hidalgo County DA's
Office
Appellate Division
100 N. Closner
Edinburg, Texas 78539
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iii

STATEMENT OF THE CASE vi

STATEMENT REGARDING ORAL ARGUMENT vii

ISSUES PRESENTED vi i i

I s sue One vi i i, 7

I s sue Two vi i i, 19

Issue Three vii i, 19

I s sue Four ix, 2 0

STATEMENT OF FACTS 1

SUMMARY OF THE ARGUMENT 6

ARGUMENT 20

PRAYER 36

CERTIFICATE OF SERVICE 39

CERTIFICATE OF COMPLIANCE 39

in
 INDEX OF AUTHORITIES

Cases

Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141,
57 L.Ed.2d 1, (1978) 19

Charles v. State, 146 S.W.3d 204, 210
(Tex. Crim.App. 2004) 22

Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App .2007) 9

Davis v. State, 111 S.W.3d 355, 358 (Tex.App.-Houston
[1st Dist.] 2005, no pet.) 10

Guevara v. State, 152 S.W.3d 45, 49-52
(Tex. Crim. App .2004) 12

Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App .2007) 12

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.
2781, 2788-89, 61 L.Ed.2d 560 (197 9) 8,19

Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston
[1st Dist.] 2003, pet. ref'd) 10

Jones v. State, 815 S.W.2d 667, 669
(Tex. Crim. App .1991) 27

King v. State, 29 S.W.3d 556, 564-65
(Tex. Crim. App .2000).'. 12

Losada v. State, 721 S.W.2d 305, 309

(Tex. Crim. App .1986) ) 10

Moreno v. State, 755 S.W.2d 866, 867

(Tex. Crim.App. 1988) 9

IV
Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.

[Pane 1 Op. ] 1981) 10

Riley v. State, 378 S.W.3d 453, 457
(Tex. Crim. App .2012) 21

State v. Herndon, 215 S.W.3d 901, 905 n. 5
(Tex. Crim. App .2007) ) 22

Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211,
2218, 72 L.Ed.2d 652 (1982) 9

Tovar v State, 165 S.W. 3d 785 (Tex. App. San Antonio

2 0 05) 19

Walker v. State, 823 S.W.2d 247, 248
(Tex. Cr im. App .1991) 27

Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App .2007) 8

Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2 000) ...10

Riles/Statutes

Texas Rule of Appellate Procedure Rule 21.3 21,28

Texas Rule of Appellate Procedure Rule
21.3(g) 31,35,36,37

Texas Rule of Appellate Procedure Rule 21.8(b) 22

Tex. R. Civ. P. 166a (c) ..22

Tex. R. Evid. 606(b) 27,33,36

Constitution

Article I, section 15, of the Texas Constitution 19
Sixth Amendment of the United States Constitution 19
TO THE HONRABLE JUSTICES OF THE THIRTEENTH COURT OF
APPEALS:

Appellant, Arturo Sanchez Almaguer, files this

brief requesting that the Court reverse and render a

judgment of acquittal or alternatively remand for a new

trial. Appellant Almaguer respectfully shows:

STATEMENT OF THE CASE

Nature of the Case Appellant was indicted for

three counts of capital

murder. This is an appeal

from convictions on Counts 2

and 3. The State Moved to

Dismiss Count l.1 See TRAP 43;

TEX. Penal. Code Ann. Section

19.02(b)(1)and (3); CR7-8;

132-137; 147

Course of Proceedings Appellant Almaguer pleaded

'Not Guilty" and was tried by

1Note that the jury convicted Appellant Almaguer of all three counts in the indictment. The Statehowever elected
to dismiss count one of the indictment after the verdict.

VI
 a jury. At the guilt-

innocence phase of the trial,

the jury returned verdicts of

guilty as charged in the

indictment in counts 1, 2 and

3 for the offense of Capital

Murder. (CR7-8; 132-137)

(RR17@55-56)

Trial Court's Disposition After having found Appellant

guilty of Capital Murder the

Court assessed punishment at

LIFE imprisonment in the

Institutional Division of the

Texas Department of Criminal

Justice. The trial court

rendered judgment on the

verdicts accordingly.

STATEMENT REGARDING ORAL ARGUMENT

Appellant Almaguer is not requesting Oral Argument at

this time.

VII
 ISSUES PRESENTED

ISSUE NUMBER ONE

The evidence in this case is legally insufficient to
support a finding beyond a reasonable doubt that
Appellant Almaguer intentionally caused the death of
Evan and/or Wilda Squires; the evidence in this case is
legally insufficient to support a finding beyond a
reasonable doubt that Appellant Almaguer was present at
the time that the killings took place; the evidence in
this case is legally insufficient to support a finding
beyond a reasonable doubt that Appellant Almaguer is
guilty of Capital Murder.

ISSUE NUMBER TWO

The Trial Court Unconstitutionally Applied Rule 606(B)
Of The Texas Rules Of Evidence, Resulting In A
Violation Of Appellant Almaguer's Right To Trial By
Jury As Mandated By Article I, Section 15, Of The Texas
Constitution And Of His Right To A Fair And Impartial
Jury As Provided By The Sixth Amendment Of The United
States Constitution.

ISSUE NUMBER THREE

The Trial Court Erred By Denying Appellant A Post-
Conviction Inquiry Of Juror Maribel Martinez Regarding
Whether The Jury Deliberated On The Law Of Parties In
Reaching A Verdict Of GUILTY When The Jury Charge Did
Not Authorize A Conviction Of Capital Murder As A
Party. The Trial Court Reversibly Erred By Denying
Appellant Almaguer To Develop The Record To Show That
This Outside Influence Was Brought To Bear On The Jury
During Deliberations.

VIII
ISSUE NUMBER FOUR

The Trial Court Abused Its Discretion By Denying
Appellant's Motion For New Trial.

IX
 STATEMENT OF FACTS

Responding Officer Roberto Moreno

At approximately 11:26 p.m. on November 13, 1988,

Weslaco Police Officer Roberto Moreno responded to

"shots fired" at the Magic Valley Trailer Park in

Weslaco, Texas. RR15019-22 Moreno was directed to the

trailer belonging to the victims in this case by a

stander-by, Eileen Myer, a resident of the trailer

park. She and Mary Nestle gave Officer Moreno a

description of the assailant and it was later given to

the investigators in the case. RR15O3 0, 31, 48 Upon

entry into the residence, Officer Moreno observed two

bodies located in the hallway of the mobile home. He

observed a male and a female - they had been shot.

Moreno checked them for pulse; they were unresponsive.

Moreno contacted EMS and called for investigators to be

dispatched to the scene. RR15@22,23, 50 While at the

scene, Moreno observed what he believed to be "fecal

matter" in one of the rooms.
Investigator Bruce Kennedy

On November 13, 1988, Investigator Bruce Kennedy

had been an investigator with Weslaco PD for about a

year; this was his first homicide investigation.

Although not on duty that night, he was called in late

and told to bring his personal video recorder as the PD

did not have one of its own. Kennedy made a video of

the crime scene that night - he hasn't seen it since.

RR15@55, 58-59,78-79, 81

While Kennedy walked through the crime scene that

night, he observed what he believed was fecal matter

and some denim shorts covering the fecal matter, both

of which were collected as evidence. RR15@66-67, 92

Kennedy also testified that at the time of the

investigation, there were two suspects, yet no

information was gathered from the crime scene "linking"

these suspects at that time. RR15@78 The

investigation believed there were two suspects because

two sets of footprints were observed leaving the scene.

RR15085, 90
CSI Pat Pemelton

This witness documented the scene in photographs.

RR15@lll-ll2 In one of the rooms, she described what

she believed to be feces covered with denim shorts.

RR15@140-142; State's Exhibit 62-66 Pemelton also

testified describing the "trail of clothing" dropped

outside the trailer and speculates that the person who

dropped them must've been in a hurry to leave.

RR150146-147, 149-150 Ultimately Pemelton confirmed

that no evidence as to who this clothing belonged to

was recovered. RR150182 Nor was a murder weapon

recovered. RR15@179, 205

Investigator Billy Pemelton

Pemelton first became involved in this case in

2011, when appellant Almaguer first became a suspect.

RR15O2 09, 212 He traveled to Michigan to obtain a

warrant for the DNA sample of Appellant. RR15@213

This witness admitted that there was no other evidence

other than the DNA profile that pointed to Appellant in

this case. RR16O102 Pemelton further admitted "we
 don't know whether he killed them or not," when asked
f
/ if he knew that Appellant committed these murders.

RR16@128

Dr. Norma Jean Farley

Testified that gunshot wounds to the left chest of

Evan Squires and a gunshot wound to the chest of Wilda

Squires were determined to be the cause of death to the

victims in this case. RR15O239-240

William Lawrence Jury

This is Wilda Squires' son. Evan Squires was her

second husband. This witness described Evan Squires'

son as having an estranged relationship with his father

and Wilda. Although he believed this was a robbery

gone badly, he admitted that nothing was missing from

the trailer. RR16@7-13, 17

Crime Lab Analyst Alex Madrigal

This witness testified re: the forensic analysis of

DNA and about the forensic samples which had been

preserved from the time of the murder. There were

samples submitted for analysis in this case.
Specifically, this witness identified samples of the

clothing found and found that the DNA profile present

on those items was consistent with the DNA profile of

Appellant Almaguer. RR16O29-3 0, 35-36, 67

Madrigal testified that he had no DNA evidence to

show that Appellant Almaguer committed these murders.

In fact, Madrigal testified that he could not say that

the DNA on these items belongs to Appellant Almaguer.

RR16@51, 58

Lieutenant Robert Vallejo

Testified that he'd had a conversation with a man by

the name of Paul Boychuck. After the murders, Boychuck

went and told Vallejo that three days prior to the

murders, Wilda Squires had shared with him she feared

for her life; that she and her husband had been

threatened; that she and her husband had been given

"until Sunday" to change the will giving him half the

money. The person making the threats was never

identified but Evan Squires' son was the only one
identified as having an estranged relationship with his

parents. RR16@156-159, 161

SUMMARY OF THE ARGUMENT

Appellant argues that the evidence is legally

insufficient to support his conviction because there

was no evidence presented that Appellant caused or even

intended to cause the death of either of these victims.

Further, although there was DNA evidence presented to

show that Appellant's DNA profile was at the crime

scene, there was no evidence to show when it was that

Appellant was there. Even the investigators in this

case admitted they did not know whether or not

Appellant committed this crime. Nor could forensic

investigators testify when Appellant's DNA profile was

deposited at the scene. Appellant avers that these

facts conclusively establish a reasonable doubt as to

whether appellant in fact did commit the offense of

which he was convicted.

Texas Rule of Evidence 606(b) was

unconstitutionally applied in this case when the trial
court denied Appellant Almaguer a post-conviction

inquiry in order to develop the record to show Juror

misconduct as contemplated by Tex. Rule of Appellate

Procedure 21.8(g). In so doing, the Trial Court failed

to recognize and admit evidence that the jury in this

case reached a verdict based on the Law of Parties,

which they were unauthorized to do since the charge of

the court did not instruct the jury on the law of

parties. Appellant Almaguer therefore, avers that the

trial court abused it's discretion in denying

Appellant's Almaguer Motion for New Trial.

ISSUE NUMBER ONE

The Evidence In This Case Is Legally Insufficient To
Support A Finding Beyond A Reasonable Doubt That
Appellant Almaguer Intentionally Caused The Death Of
Evan And/Or Wilda Squires; The Evidence In This Case Is
Legally Insufficient To Support A Finding Beyond A
Reasonable Doubt That Appellant Almaguer Was Present At
The Time That The Killings Took Place; The Evidence In
This Case Is Legally Insufficient To Support A Finding
Beyond A Reasonable Doubt That Appellant Almaguer Is
Guilty Of Capital Murder.

Appellant argues that the evidence is legally

insufficient to support his conviction because there
was no evidence presented that Appellant intended to

cause the death of either of these victims. Further,

although there was DNA evidence presented to show that

Appellant was at the crime scene, there was no evidence

to show when it was that Appellant was there. Even the

investigators in this case admitted they did not know

whether or not Appellant committed this crime. Nor

could forensic investigators testify when Appellant's

DNA was deposited at the scene. Appellant avers that

these facts "conclusively establish a reasonable doubt

as to whether [appellant] in fact did commit the

offense of which he was convicted."

The legal sufficiency of the evidence should be

reviewed by considering all of the evidence in the

light most favorable to the verdict to determine

whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable

doubt. Williams v. State, 235 S.W.3d 742, 750

(Tex.Crim.App.2007) {citing Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d
560 (1979)). Evidence is legally insufficient when the

"only proper verdict" is acquittal. Tibbs v. Florida,

457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d

652 (1982). The role of a reviewing Court is that of a

due process safeguard, ensuring only the rationality of

the trier of fact's finding of the essential elements

of the offense charged beyond a reasonable doubt. See

Moreno v. State, 755 S.W.2d 866, 867

(Tex.Crim.App.1988). In doing so, deference is to be

given to the responsibility of the fact finder to

fairly resolve conflicts in testimony, weigh evidence,

and draw reasonable inferences from the facts. Id. The

reviewing Court should defer to the fact finder's

resolution of conflicting evidence unless the

resolution is not rational. See Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007) . But the reviewing

court is required to ensure that the evidence presented

actually supports a conclusion that the defendant

committed the criminal offense of which he is accused.

See Williams, 235 S.W.3d at 750.
 Jurors are the exclusive judges of the facts, the

credibility of the witnesses, and the weight to be

given the witness's testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981);

Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston

[1st Dist.] 2003, pet. ref'd). And, they may choose to

believe or disbelieve any part of a witness's

testimony. See Davis v. State, 111 S.W.3d 355, 358

(Tex.App.-Houston [1st Dist.] 2005, no pet.). Likewise,

"reconciliation of conflicts in the evidence is within

the exclusive province of the jury." Wyatt v. State, 23

S.W.3d 18, 30 (Tex.Crim.App.2000) (quoting Losada v.

State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986)).

Ordinarily, to sustain a conviction for capital

murder as charged in this indictment, the evidence must

demonstrate that: 1) the accused intentionally or

knowingly caused the death of an individual and that

the accused was then and there in the course of

committing or attempting to commit the offense of

burglary of a habitation; and further that the victims

10
were the owners of said habitation. Tex. Penal Code §§

19.02(b)(1), 19.03(a)(2). Testimony from the several

witnesses presented in this case showed the only

evidence linking Appellant to this crime was a "DNA

profile" "consistent" with Appellant's DNA profile.

Note that Alex Madrigal from the crime lab testified

that he could not say that the DNA submitted in this

case even belonged to Appellant. RR16@58. DNA is

durable; it does not evaporate or dissipate, and the

time at which it was deposited on a surface cannot be

directly determined. Evidence of a DNA profile

consistent with Appellant, without more, could not have

led a rational person to believe beyond a reasonable

doubt that Appellant caused the death of these victims

or that Appellant was in the course of committing or

attempting to commit the burglary alleged here.

What about circumstantially? Circumstantial

evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.

11
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).

The Court of Criminal Appeals has affirmed murder

convictions based solely on inferences raised by

circumstantial evidence. See, e.g., Clayton, 235 S.W.3d

at 778-82; Guevara v. State, 152 S.W.3d 45, 49-52

(Tex.Crim.App.2004) ; King v. State, 29 S.W.3d 556, 564-

65 (Tex.Crim.App.2 000). An inference is a conclusion

reached by considering other facts and deducing a

logical consequence from them. Hooper, 214 S.W.3d at

16. Speculation is mere theorizing or guessing about

the possible meaning of facts and evidence presented.

Id. A conclusion reached by, speculation may not be

completely unreasonable, but it is not sufficiently

based on facts or evidence to support a finding beyond

a reasonable doubt. Id. Each fact need not point

directly and independently to the guilt of the

appellant, as long as the cumulative effect of all the

incriminating facts are sufficient to support the

conviction. Id. at 13.

12
 In this case, it was undisputed at trial that Wilda

and Evan Squires died as a result of gunshot wounds;

that sometime after 11:00 p.m. on November 13, 1988,

each was shot in the chest. State's witness Roberto

Moreno testified that he responded to the scene at

11:26 p.m; that he arrived and observed two bodies

located in the hallway, unresponsive; that these bodies

had been shot. RR15@22-23 Dr. Norma Jean Farley

testified that the cause of death of both victims was

gunshot wounds to the chest. RR15@239-240 This

evidence inarguably supports a finding that someone

intentionally and knowingly caused the Squires' death

and that the deaths were the result of having been shot

with a firearm. Appellant argues that in examining the

record to determine whether the evidence, viewed in the

light most favorable to the verdict, is legally

sufficient to support a finding that appellant was

responsible, there is insufficient evidence to sustain

this conviction.

13
 There was no evidence upon which a rational trier

of fact could have relied in finding beyond a

reasonable doubt that Appellant Almaguer was present at

the crime scene at the time that the murders were

committed. Nor was there any circumstantial evidence

from which a rational trier of fact could have drawn an

inference that Appellant Almaguer was present at the

crime scene at the time that the murders were

committed.

There was no evidence upon which a rational trier

of fact could have relied in finding beyond a

reasonable doubt that Appellant Almaguer fired a weapon

on the night of November 13, 1988. Nor was there any

circumstantial evidence from which a rational trier of

fact could have drawn an inference that Appellant

Almaguer fired a weapon on the night of November 13,

1988. Pat Pemelton testified that there was no weapon

recovered in this case. Nor was there any forensic

analysis/evidence presented regarding the bullet

fragments found that affirmatively linked Appellant to

14
the weapon used in this case. Nor was there any

ballistic evidence upon which the jury could have

relied in drawing an inference that Appellant was

linked to the weapon used to commit these murders.

RR15@205

There was no evidence upon which a rational trier

of fact could have relied in finding beyond a

reasonable doubt that Appellant Almaguer intended to

cause the death of Evan and/or Wilda Squires on the

evening of November 13, 1988 or that Appellant Almaguer

even harbored any ill-will toward either of them. Nor

was there any circumstantial evidence from which a

rational trier of fact could have drawn an inference

that Appellant Almaguer intended to cause the death of

Evan and/or Wilda Squires on the evening of November

13, 1988 or that Appellant Almaguer even harbored any

ill-will toward either of them. There was no evidence

upon which a rational trier of fact could have relied

in finding beyond a reasonable doubt that Appellant

Almaguer intended to burglarize and/or rob either of

15
 the victims that night. Nor was there any

circumstantial evidence from which a rational trier of

I fact

Almaguer
could have

intended
drawn

to
an

burglarize
inference

and/or
that

rob
Appellant

either of

the victims that night.

Simply, the only evidence purporting to link

Appellant Almaguer to the crime scene was his "DNA

Profile." Investigator Billy Pemelton admitted that

the DNA was the only evidence they had linking

Appellant to this crime. Even so, although he had a

"belief that Appellant was responsible," neither he nor

his investigators knew whether Appellant killed Wilda

and Evan Squires or not. RR16@89, 102 128 Even

assuming arguendo that the DNA profile was "consistent"

with that of Appellant Almaguer, there was no evidence

upon which a rational trier of fact could have relied

in finding beyond a reasonable doubt that Appellant

Almaguer was present at the time that the Squires were

murdered. Nor was there any circumstantial evidence

from which a rational trier of fact could have drawn an

16
inference that Appellant Almaguer was present at the

crime scene at the time that the murders were

committed. If, as will likely be argued by the State,

Appellant's DNA profile is from a place where the

defendant should not have been, the DNA, by itself, can

confirm only that he was there at some time and cannot,

by itself, prove conclusively that he was there at the

time of the crime. What's more, the record on appeal

is devoid of any evidence upon which the jury could

have relied to even "corroborate the presence of

Appellant at the crime scene during the time of the

murder." For example, there were no fingerprints

belonging to Appellant found at the crime scene; there

were no eye-witness accounts placing Appellant Almaguer

at or near the crime scene at the time of the murders.

In fact, as Roberto Moreno testified, the two standers-

by who directed him to the crime scene upon his arrival

also provided him with a description of the assailant.

While that description was shared with those associated

with this investigation, no evidence was presented that

17
Appellant Almaguer fit the description given. RR15@3 0,

31, 48 There's no confession by Appellant inculpating

himself in these murders; there was no murder weapon

found that was linked to Appellant in any way. While

DNA analysis is a powerful tool in determining guilt or

innocence, usually there is other evidence that links

the defendant to the offense. We must remember that DNA

analysis is performed by humans and is not foolproof,

nor are the conclusions drawn from the analysis always

correct. State's witness and "expert" on DNA analysis

Alex Madrigal not only admitted during his testimony

that some DNA labs have been shut down for mistakes and

that people have been known to be released for mistakes

made regarding DNA testing but further acknowledged

that he could not say that the DNA on the items

submitted for testing in this case was that of

defendant. RR16@52,58 Only if all the prerequisites

for reliability—true match, correct source, and

presence at the crime scene in the applicable time

frame—are satisfied can society have confidence that

18
the DNA evidence is, in and of itself, strong enough to

support a conviction. Lastly, Alex Madrigal testified

that he has no DNA evidence that Appellant committed

these murders. RR16@51.

Accordingly, Appellant prays that the judgment be

reversed, and a judgment of acquittal entered. Burks v.

United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57

L.Ed.2d 1, (1978) (holding if the record evidence is

legally insufficient under the Jackson rule, the

reviewing court must render a judgment of acquittal).

Tovar v. State, 165 S.W. 3d 785 (Tex. App. San Antonio

2005).

ISSUE NUMBER TWO

The Trial Court Unconstitutionally Applied Rule 606(B)
Of The Texas Rules Of Evidence, Resulting In A
Violation Of Appellant Almaguer's Right To Trial By
Jury As Mandated By Article I, Section 15, Of The Texas
Constitution And Of His Right To A Fair And Impartial
Jury As Provided By The Sixth Amendment Of The United
States Constitution.

ISSUE NUMBER THREE

The Trial Court Erred By Denying Appellant A Post-
Conviction Inquiry Of Juror Maribel Martinez Regarding
Whether The Jury Deliberated On The Law Of Parties In
Reaching A Verdict Of GUILTY When The Jury Charge Did

19
 Not Authorize A Conviction Of Capital Murder As A
Party. The Trial Court Reversibly Erred By Denying
Appellant Almaguer To Develop The Record To Show That
This Outside Influence Was Brought To Bear On The Jury
During Deliberations.

ISSUE NUMBER FOUR

The Trial Court Abused Its Discretion By Denying
Appellant's Motion For New Trial.

Appellant respectfully asks the reviewing Court to
consider Issues Number 2 through 4 together.

ARGUMENT AND AUTHORITIES

Motion for New Trial: Standard of Review

Appellant complains on appeal that his right to a

fair trial was violated when the jury in this case

reached a guilty verdict. Specifically, the jury

charges in this case instructed the jury that they

could convict if they were convinced beyond a

reasonable doubt that Appellant Almaguer was guilty of

Capital Murder as a primary actor. That is to say, the

jury was NOT instructed on the Law of Parties. CR119,

1261 Appellant however in his Motion for New Trial

alleges that the Jury engaged in misconduct as

1Appellant refers the Court only to Counts Two andThree here, as Count One was dismissed.

20
contemplated by Texas Appellate Rule 21.3.

Specifically, Appellant avers that the jury in fact

relied on the Law of Parties in reaching its verdict of

guilty on these respective counts. Said verdicts were

not authorized by the Charge of the Court. Further,

Appellant complains that the trial court erred by

refusing to allow post-verdict inquiry in order to

develop the record on appeal for review. CR172;

RR20@18-21

Appellate courts review a trial court's denial of a

motion for new trial under an abuse of discretion

standard, reversing it only if it was clearly erroneous

and arbitrary. .Riley v. State, 378 S.W. 3d 453, 457

(Tex.Crim.App.2 012). The trial court's denial of the

motion is arbitrary if no reasonable view of the

evidence could support the ruling. Id. This standard

requires that the appellate court review the evidence

in the light most favorable, to the trial court's

ruling. Id. Appellate courts do not substitute their

own views for those of the trial court; instead, an

21
appellate court must affirm the ruling of the trial

court if it was within the zone of reasonable

disagreement. Id. "Where there are two permissible

views of the evidence, the factfinder's choice between

them cannot be clearly erroneous." Id.

The same deferential review applies to historical

facts. Id. The appellate court is free to disbelieve

the statements in an affidavit, especially one

unsupported by live testimony. Id. The Court of

Criminal Appeals cited the Rules of Civil Procedure in

holding that "affidavits from an interested party may

establish a fact for summary-judgment purposes only if

that evidence is 'clear, positive and direct, otherwise

credible, and free from contradictions and

inconsistencies, and could have been readily

controverted.' " Id. {quoting Charles v. State, 14 6

S.W.3d 204, 210 (Tex.Crim.App.2004), superseded in part

on other grounds by Tex.R.App. P. 21.8(b), as

recognized in State v. Herndon, 215 S.W.3d 901, 905 n.

5 (Tex.Crim.App.2007)); see Tex.R. Civ. P. 166a(c). It

22
further held, "The phrase 'could have been readily

controverted' means 'the testimony at issue is of a

nature which can be effectively countered by opposing

evidence.' " Id. By contrast, "[s] tatements in

affidavits of interested witnesses concerning their own

state of mind are 'uncontrovertible' because 'the

mental workings of an individual's mind are matters

about which adversaries have no knowledge or ready

means of confirming or controverting.' " Id. The trial

court has discretion to disregard statements in an

affidavit that do not meet this test. Id. ; Charles, 146

S.W.3d at 210.

The Indictment

Count Two of the indictment in this case alleged:

THE GRAND JURY, for the Count of Hidalgo, State of

Texas, duly selected, empaneled, sworn, charged and

organized as such at the January term A.D. 2 012 of the

13 9th Judicial District Court for said County, upon

their oaths present in and to said Court at said term

that Arturo Sanchez Almaguer, hereinafter styled

23
Defendant, on or about the 13th day of November, A.D.,

1988, and before the presentment of this indictment, in

Hidalgo County, Texas, did then and there intentionally

cause the death of an individual, namely Evan Squires,

by shooting him with a firearm, and the defendant was

then and there in the course of committing or

attempting to commit the offense of burglary of a

habitation of Evan Squires, who was the owner of said

habitation.

Count Three of the indictment in this case alleged:

THE GRAND JURY, for the Count of Hidalgo, State of

Texas, duly selected, empaneled, sworn, charged and

organized as such at the January term A.D. 2012 of the

13 9th Judicial District Court for said County, upon

their oaths present in and to said Court at said term

that Arturo Sanchez Almaguer, hereinafter styled

Defendant, on or about the 13th day of November, A.D.,

1988, and before the presentment of this indictment, in

Hidalgo County, Texas, did then and there intentionally

cause the death of an individual, namely Wilda Squires,

24
by shooting her with a firearm, and the defendant was

then and there in the course of committing or

attempting to commit the offense of burglary of a

habitation of Evan Squires, who was the owner of said

habitation. CR7-8

The Jury Charges

The application paragraphs of the court's charge to the

jury in count two provided:

Now, if you find from the evidence beyond a

reasonable doubt that on or about November 13,

1988, in Hidalgo County, Texas, the Defendant,

Arturo Sanchez Almaguer did then and there

intentionally cause the death of an individual,

namely, Evan Squires, by shooting him with a

firearm, and the defendant was then and there in

the course of committing or attempting to commit

the offense of burglary of a habitation of Evan

Squires, then you will find the Defendant guilty of

Capital Murder.

25
 Unless you so find, from the evidence beyond a

reasonable doubt that the Defendant is Guilty of

Capital Murder, as defined herein, or if you have a

reasonable doubt thereof, you will acquit the

defendant of capital murder and say by your

verdict, Not Guilty. CR121

The application paragraphs of the court's charge to the

jury in count three provided:

Now, if you find from the evidence beyond a

reasonable doubt that on or about November 13,

1988, in Hidalgo County, Texas, the Defendant,

Arturo Sanchez Almaguer did then and there

intentionally cause the death of an individual,

namely, Wilda Squires, by shooting her with a

firearm, and the defendant was then and there in

the course of committing or attempting to commit

the offense of burglary of a habitation of Wilda

Squires, then you will find the Defendant Guilty of

Capital Murder.

26
 Unless you so find, from the evidence beyond a

reasonable doubt that the Defendant is Guilty of

Capital Murder, as defined herein, or if you have a

reasonable doubt thereof, you will acquit the

defendant of capital murder and say by your

verdict, Not Guilty. CR12 8

In order for a jury to be authorized to convict a

defendant as a party, the" la'w of parties must be

included -in. the -application paragraph of 'the charge.

Walker v. %* state, 823 S.W.2d 247, 248

. (Tex.Crim.App.1991); Jones v. State, 815 S.W.2d 667,

669 (Tex.Crim.App. 1991) . The indictment in this cas.e
•&&
(k!\- .alleged appellant" committed these offenses as a primary

actor. Because the jury charge did not include an

instruction on the law of parties, the jury was

entitled to convict appellant only on the basis of his

own conduct. Walker, 823 S.W.2d at 248.

Texas Rule of Evidence 606(b)

Texas Rules of Evidence 606(b) provides as follows:

27
 Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any

matter or statement occurring during the jury's

deliberations, or to the effect of anything on any

juror's mind or emotions or mental processes, as

influencing any juror's assent to or dissent from

the verdict or indictment. Nor may a juror's

affidavit or any statement by a juror concerning

any matter about which the juror would be precluded

from testifying be admitted in evidence for any of

these purposes. However, a juror may testify: (1)

whether any outside influence was improperly

hi
(9&^pf\ brought to _kea.r-_upon any_juror; or (2) to rebut a
claim that the juror was not qualified to ser,ye.

Tex.R. Evid. 606(b).

Texas Rule of Appellate Procedure Rule 21.3

Texas Rule of Appellate Procedure Rule 21.3

provides that a Defendant must be granted a new

trial "when the jury has engaged in such misconduct

28
 the defendant did not receive a fair and impartial

trial." Tex.R.App. P. 21.3(g).

Analysis

Appellant Almaguer insists that the trial court

erred by overruling his motion for new trial because

the jury engaged in jury misconduct resulting in the

denial of a fair and impartial trial. In his motion for

new trial, /Appellant urged that the jury received
7 "other evidence" that constituted an "outside
f
influence" that was brought to bear in that the jury

considered the application of the Law of Parties to his

case, contrary to the jury instructions in the charges

in counts two and three} Appellant Almaguer asserted in

his motion and in an affidavit attached to the motion

that jurors stated that there simply wasn't enough

evidence to convict him as the one who actually did the

killing. RR14@53-59

During voir dire proceedings, the State voir dire

on the principles associated with the Law of Parties.

The panel was given a bank robbery example involving

29
 a shooter, a lookout and a getaway driver. During the

discussion, the jury panel was educated on the

principle of law known as the law of parties and

further advised that although only the gunman in the

example actually committed the hypothetical shooting,

that all three are equally responsible for the shooting

of the bank teller. RR14053-59 Now, it is unclear

yd^X/ whether the State requested a gartie,s chargel since the
record on appeal is silent with respect to a request

for such a charge. At the close of the evidence, the

parties agreed to exchange proposed charges and bring

any specific requests to the Court if they could not

agree. RR16@164-166 The next morning, the parties

announced they had received copies of the proposed

charges and neither party lodged any objections to the

charges. RR17@4 what is clear is that no charge on

the law of parties was incorporated into any of the

Court's charges, Counts 1, 2 or 3. CR113, 119, 126.

The State objected to Appellant's affidavit in

support of his motion for new trial. CR212 In the

30
affidavit, defense counsel discussed the deliberations

of the jurors. CR176-178 Although Appellant attempted

to present evidence to support his allegation of jury

misconduct during deliberations, the trial court denied

any post-conviction inquiry as such, thereby sustaining

the State's objection couched in Texas Rule of Evidence

606(b). RR20@18-21

The Texas Supreme Court has found that Texas Rule

606(b) violated neither federal due-process principles

nor the right to a fair trial under the Texas

Constitution. And several Texas courts of appeals have

upheld the Rule's constitutionality under provisions of

both the United States and Texas constitutions. But

Appellant urges this Court to review whether the rule

was applied unconstitutionally in this case. Appellant

contends that this application of Texas Rule of

Evidence 606(b) was unconstitutional in this case and

this unconstitutional application prevented Appellant

from establishing the jury misconduct that, under Rule

21.3(g), mandates a new trial.

31
 Finally, Appellant contends that his allegation of

juror misconduct was further corroborated and

substantiated by a |jury question to the court during
its deliberations in the guilt/innocence phase. £The
jury's question to the trial court was a request to

clarify the Law of Parties. CR172-207; RR20O24; Defense

Motion for New Trial Exhibit 7

The State will surely argue at this point that

there is no "admissible" evidence of juror misconduct

such that would show that the jury convicted Appellant

Almaguer on any other principle other than what they

were authorized to do. Therein lies the quandary and

another complaint of Appellant Almaguer. Appellant

recognizes Rule 606(b) of the Texas Rules of evidence

provides that upon an inquiry into the validity of a

jury's verdict a juror may not testify as to any matter

or statement occurring during the jury's deliberations

or to the effect of anything on any juror's mind or

emotions or mental processes as influencing any juror's

assent to or dissent from the jury's verdict. TEX. R.

32
 EVID. 606(b). The rule further provides that a juror's

affidavit concerning such matters would not be admitted

into evidence for any of those purposes. Id. However,

Appellant Almaguer also understands that the rule does

provide that a juror may testify as to whether any

outside influence was improperly brought to bear upon

any juror. Tex.R. Evid. 606(b).

Appellant urges this Court to consider the

discussion had during voir dire about the Law of

Parties as an "outside influence" as contemplated by

Texas Rule of Evidence 606(b) and Texas Rule of

Appellate Procedure 21.3 RR14053-59; Tex.R. Evid.

tr^K^J 606 (b) • TRAP 21.3(g) ^At the hearing on the motion for
new trial, defense counsel was prepared to rely on his

affidavit and call a witness, Juror Maribel Martinez,

to testify to the alleged misconduct. The State,

anticipating that the appellant would call jurors,

objected under Rule 606(b), which prohibits juror

testimony on matters concerning jury deliberations or

33
affecting a juror's decision-making. The trial court

sustained the objection.

Counsel also introduced into evidence the notes

from the jurors, which the motion for new trial and

defense counsel had purported to include comments

regarding "the jury's desire to hear a clarification

regarding the law of parties." Defense Motion for

Pretrial Exhibit 7. At the hearing, counsel explained

that the jurors' notes were quite clear that the jury

was deliberating on the law of parties when

unauthorized to do so by the Court's Charge, and

therefore offered the notes for purposes of the

appellate review. RR20@23-25

The trial court further allowed defense counsel to

make a proffer of evidence in support of his motion.

Defense counsel stated:

Your Honor, if Maribel Martinez had been called to

the witness stand, it is the defense's belief that

she would have testified accordingly, to wit: The

jury found the defendant guilty based on the law of

34
 parties, and they wanted clarification on the law

of parties. There were a lot of unanswered

questions, and there was nothing to say that he

actually did it, and there was not enough evidence

to convict him of murder but he might have been

working with someone else. She also discussed

other concerns she had such as money being left and

the jewelry on the body being left. I also

believe, had she been allowed to testify here this

afternoon, Your Honor, that she would have

testified accordingly, and I offer that proffer for

purposes of appellate process. RR2 0@2 9-3 0

Appellant Almaguer asserts that an "outside

influence" was improperly brought to bear upon the

jurors, the Law of Parties discussed during voir dire.

The Court erred by denying Appellant a post-conviction

inquiry into whether the "outside influence" was in

fact brought to bear on the jury during deliberation

such that would violate Texas Rule of Appellate

Procedure section 21.3(g). Because the Court sustained

35
the State's objection couched in Texas Rule of Evidence

606(b), Appellant was not afforded an opportunity to

develop the record on appeal in order for this Court to

review whether in fact a violation of 21.3(g) occurred

such that would entitle Appellant a new trial based on

jury misconduct. Appellant asserts Rule 606(b) was

applied unconstitutionally in this case and operated to

violate the appellant's constitutional rights.

Appellant asserts that the trial court abused its

discretion in denying the appellant's motion for a new

trial.

PRAYER

Appellant Almaguer prays that this Court make

findings that the evidence in this case was

insufficient for a rational trier of fact to find

beyond a reasonable doubt that Appellant Almaguer

intended to cause the death of Evan and Wilda Squires.

Further, Appellant Almaguer prays this Court make

findings that the evidence in this case was

insufficient for rational trier of fact to find beyond

36
a reasonable doubt that Appellant Almaguer was present

at the time that the murders occurred. Further still,

Appellant Almaguer prays that this Court make findings

that the evidence in this case was insufficient for a

rational trier of fact to find beyond a reasonable

doubt that Appellant Almaguer actually caused the death

of Evan and Wilda Squires. Appellant prays this Court

make the aforementioned findings and render a judgment

of acquittal accordingly.

Subject to a ruling and without waiving the

foregoing, Appellant prays that this Court make

findings that the trial court erred in denying

Appellant a post-conviction inquiry into whether or not

the jury engaged in misconduct as contemplated by Texas

Rule of Appellate Procedure 21.3(g) when the trial

court unconstitutionally applied Texas Rule of Evidence

606(b). As such, Appellant further prays that the trial

court abused its discretion by denying Appellant

Almaguer's Motion for New Trial. In so finding,

37
Appellant requests this finding cause this matter to be

reversed and remanded for a new trial.

Respectfully submitted,

0. Rene Flores, P.C.
1308 S. 10th Ave
Edinburg, Texas 78539
Telephone No. (956) 383-9090
Facsimile Nq^—^95,61 383-9050

O. Re
State 24012637

ATTORNEY FOR APPELLANT

38
 CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of

the foregoing Appellate Brief was served in accordance

with the rules on the following persons:

Theodore "Ted" Hake
Assistant District Attorney
Hidalgo County District County Attorney
Appellate Division
Hidalgo County Courthouse
100 N. Closner
Edinburg, Texas 78539
By: Hand delivery

TDCJ #01918635
Arturo Sanchez Almaguer
Texas Department of Corrections
Connally Unit
3001 South Emily Drive
Beeville, Texas 78102 v"

0. Rene ^3

CERTIFICATE OF COMPLIANCE

Pursuant to TRAP 9.4 (3), I hereby certify this

Brief contains 7028 words. "7^S "\

O. Rene

39