ACCEPTED
04-14-00246-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/24/2015 6:41:29 AM
KEITH HOTTLE
CLERK
NO. 04-14-00246-CR FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS
FOURTH JUDICIAL DISTRICT 6/24/2015 6:41:29 AM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
_________________________________________________________________
DESTYN DAVID FREDERICK,
Appellant
V.
THE STATE OF TEXAS
Apellee
_________________________________________________________________
APPEAL FROM CAUSE NO. 11-09-00041-CRL
IN THE DISTRICT COURT LA SALLE COUNTY, TEXAS
FOR THE 81ST / 218TH JUDICIAL DISTRICT OF TEXAS
_________________________________________________________________
STATE’S BRIEF
_________________________________________________________________
Rene Pena
District Attorney
81st/218th Judicial District
Marc Ledet
Asst. District Attorney
81st/ 218th Judicial District
1327 3rd Street
Oral Argument Waived Floresville, Texas 78026
Unless Granted Telephone: 830 / 393-2200
Fax: 830/ 393-2205
State Bar No. 24002459
Email: marcledet@81stda.org
ATTORNEYS FOR STATE
Attorneys for the State of Texas
PARTIES
For the Appellant:
COUNSEL (Trial):
Patrick L. Hancock
1800 McCullough
San Antonio, TX 78212
(Appeal)
Richard Langlois
217 Arden Grove
San Antonio, TX 78215
For the State:
Rene Pena – District Attorney
Marc Ledet – Trial/Appellate Attorney
Audrey Louis – Trial Attorney
1327 3rd Street
Floresville, TX 78114
Presiding Judge:
Hon. Donna Reyes
81st/218th District Judge
Atascosa County, TX 78026
page ii
TABLE OF CONTENTS
Page
Identity of Parties .. . . . . . . . .. . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . iv
Statement of Facts. . . . . . . . . . . . . . . . . 1
APPELLANT’S ISSUE NUMBER ONE . . . . . . . . . . . 6
Upon a statutory sufficiency review of the
testimony by the accomplice witness Marcus
Serna pursuant to Article 38.14, Texas Code of
Criminal Procedure, the evidence is
insufficient to connect Appellant to support a
finding that Appellant was guilty of Felony
Murder pursuant to Texas Penal Code
19.02(b)(3).
APPELLANT’S ISSUE NUMBER TWO
The evidence is legally insufficient to support
a finding that Appellant was guilty of Felony
Murder pursuant to the Texas Penal Code
19.02(b)(3)
Prayer. . . . . . . . . . . . . . . . . . . . . . . 21
Certificates of Service and Compliance . . . . . 22,23
page iii
INDEX OF AUTHORITIES
Case Page
Jackson v. Virginia, 443 U.S. 307, 316,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). . . . . 17
Cathey v. State, 992 S.W.2d 460
(Tex.Crim.App. 1999). . . . . . . . . . . . . . . 8
Dowthitt v. State, 931 S.W.2d 244
(Tex.Crim.App. 1996). . .. . . . . . . . . . . . 16
Golden v. State, 851 S.W.2d 291
(Tex.Crim.App. 1993). . . . . . . .. . . . . . . . 8
Gross v. State, 380 S.W.3d 181
Tex.Crim.App. 2012). . . . . . . . . . . . . . . . 15
Guevara v. State, 152 S.W.3d 45
(Tex. Crim. App. 2004). . . .. . . . . . . . . . . 12
Laster v. State, 275 S.W.3d 512
(Tex. Crim. App. 2009). . . . . . . . . . . . . . . 17
Malone v. State, 253 S.W.3d 253
(Tex.Crim.App. 2008). .. . . . . . . . . . . . . . 7
Reed v. State, 744 S.W.2d 112
(Tex.Crim.App. 1999). . . . . . . . . . . . . . . . 14
Simmons v. State, 282 S.W.3d 504
(Tex.Crim.App. 2009). . . . . . . . . . . . . . . . 8
Trevino v. State, 991 S.W.2d 849
(Tex.Crim.App. 1999). . . . . . . . . . . . . . . 8
Constitutions, Statutes, & Rules
TEX. R. APP. P. 38.2(a)(1)(B). . . . . . .. . . . . 1
page iv
Tex. C. CRIM. P. 38.14. . . . . . . . . . . . . . . . . 7
TEX. PENAL C. 7.02. . . . . . . . . . . . . . . . . . . 18
page v
NO. 04-14-00246-CR
IN THE COURT OF APPEALS
FOURTH SUPREME JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
DESTYN DAVID FREDERICK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
TO THE HONORABLE COURT OF APPEALS:
Now comes the State of Texas and files its brief in
answer to the brief of DESTYN DAVID FREDERICK,
Appellant, appealing his guilty verdict and punishment
ordered in the 81st/218thJudicial District of La Salle
County, Texas, Honorable Judge Donna Rayes presiding.
STATEMENT OF FACTS
Pursuant to TEX. R. APP. P. 38.2(a)(1)(B), the State
challenges all factual assertions contained in
Appellant’s brief, except admissions expressly made
State’s Brief page -1-
therein, and submits its version of the relevant facts
below in its reply to Appellant’s issues.
On June 13, 2011, Mr. Israel Casas and his wife of
sixty-three years, Guadalupe Casas, went on a bus to
San Antonio from Cotulla, Texas for the purpose of a
doctor’s appointment concerning a chronic condition of
his heart. As the bus had other passengers to pick up
at various points in south Texas, the Mr. and Mrs.
Casas had to get up at four o’clock in the morning to
go meet the bus. After attending Mr. Casas’ medical
appointment, they waited for the bus and again rode
home to Cotulla. Due to the delivery of other
passengers on the bus, they did not make it home until
7 o’clock that evening, some fifteen hours after their
departure. [R.R. Vol. IX, pp. 7-10]
Upon arrival at their home, they did the activities
which were normal for them. They watched television,
particularly the news, then talked to their daughter on
the telephone. Once that conversation had ended, both
Mr. and Mrs. Casas went to bed. [R.R. Vol. IX, pp. 10-
State’s Brief page -2-
11] Their evening, the last they would spend together,
was just beginning however.
Unbeknownst to the Casas family, the Appellant and
two of his friends, Marcus Serna and Rigo Guerra, had
spent the day together and were now out on the town.
The three had already conspired to commit a burglary.
Rigo Guerra decided they needed a gun, so they went to
Frederick’s mother’s house and smuggled it out of the
house. As the gun was unloaded, the three then went to
Serna’s house to obtain shotgun shells. {R.R. Vol
VIII, pp. 98-99] They dump the truck at a property in
Cotulla and walk across Interstate 35, where they
acquire a Gator ATV which they use to drive down the
interstate’s feeder road, under the bridge and arrive
at the Casas home. [R.R. Vol. VIII, pp.87-88, 129]
Still intent on burglary, Rigo Guerra grabs the
shotgun and goes into the Casas’ garage, where they
grab sodas out of the refrigerator. While Serna and
Frederick want to wait, Appellant decides to kick in
State’s Brief page -3-
the door to the home and enter. Serna follows behind
him. [R.R. Vol. VIII, pp. 123-124]
Mr. and Mrs. Casas were awakened by a thudding
noise at their home which could be heard from the door
which enters their kitchen from outside. Mr. Casas
called out if anyone was in the house and then, dressed
only in boxer shorts, jumped to the door to close it
for the protection of him and his wife. Just as Mr.
Casas was closing the door, Appellant fired into the
door, hitting Mr. Casas in the face with both shot from
the shotgun and wood fragments from the exploding door.
He fell to the ground on his back while Mrs. Casas
screamed for the intruders to take what they wanted and
leave them alone. [R.R. Vol. IX, pp. 14-19] The
gunman, who was tall and thin, entered the room and
shot Mrs. Casas in the arm before leaving. An arm she
would later lose as doctors were unable to save it.
[R.R. Vol. IX, pp. 18-21]
Dragging herself to the phone, with her one good
remaining arm, Mrs. Casas called 911 and alerted them
State’s Brief page -4-
to what had occurred. Mr. Casas, bleeding profusely
from the face and neck, got off the floor and pulled
himself beside her on the bed. Due to the location and
severity of the injury, Mr. Casas was unable to speak.
[R.R. Vol. IX, pp. 17-23]
Mrs. Casas stayed on the phone with dispatch, who
informed her that deputies were at their home but
remained outside as they were unaware of whether the
shooter was in the house. Mr. Casas got up and walked
outside to alert the deputies that there was no shooter
remaining in the house so they could enter and attend
to his wife’s injuries. Two ambulances were dispatched
to the scene and Mr. Casas and Mrs. Casas were taken
separately. Mrs. Casas reach Dilley, Texas, where she
was airlifted to a hospital in San Antonio for surgery.
Mr. Casas was pronounced dead before his ambulance
even got to Dilley. [R.R. Vol. IX, pp. 21-26]
During the time that Mr. and Mrs. Casas were lying
injured in their home and awaiting assistance,
Appellant, Serna and Guerra had dumped the stolen gator
State’s Brief page -5-
and started riding around in Frederick’s pickup truck,
still in possession of the shotgun that was used to
kill Mr. Casas. [R.R. Vol. VI, pp. 223-229, 237-238]
While in the vehicle and smoking a synthetic
marijuana, Guerra decides that he wishes to rob the
Valero convenience store located in Cotulla. Complying
with his wishes, Frederick and Serna drop him off at
the Valero while he enters inside with the shotgun.
Frederick and Serna leave the scene in the pickup while
Guerra is robbing the store. Frederick and Serna hide
the truck, and then walk to a high spot where they can
watch the robbery. All while continuing to smoke the
synthetic marijuana. [R.R. Vol. VI, pp. 223-229, 237-
238]
APPELLANT’S POINTS OF ERROR NUMBER ONE
Upon a statutory sufficiency review of the
testimony by the accomplice witness, Marcus Serna
pursuant to Article 38.14, Texas Code of Criminal
Procedure, the evidence is insufficient to connect
Appellant to support a finding that Appellant was
guilty of Felony Murder pursuant to Texas Penal Code
19.02(b)(3).
State’s Brief page -6-
STATE’S REPLY
Even with the subtraction of Marcus Serna’s
testimony as an accomplice, there was substantial
evidence provided from which rational jurors could
conclude that Appellant was sufficiently connected to
the crime.
Argument and Authorities
In review of this issue, there is no doubt that
Marcus Serna was an accomplice, and therefore the State
is under a requirement to produce corroborating
evidence of Appellant’s guilt. The State’s case cannot
be solely based upon the testimony of the accomplice
witness alone.
A reviewing court must consider the evidence
present before the jury absent that which was provided
by the accomplice. Texas Rule of Criminal Procedure
38.14. Upon examination of the remaining evidence, the
reviewing court must make a determination if there is
any evidence that tends to connect the accused with the
commission of a crime. Malone v. State, 253 S.W.3d
253, 257 (Tex.Crim.App. 2008) The standard of review
State’s Brief page -7-
in regards to the remaining evidence is whether it
tends to connect Appellant to the crime, not that the
remaining evidence must prove the case beyond a
reasonable doubt. Trevino v. State, 991 S.W.2d 849,
851 (Tex.Crim.App. 1999); Cathey v. State, 992 S.W.2d
460, 462 (Tex.Crim.App. 1999) While the remaining
evidence only has to link Appellant to the crime in
some manner, mere presence at the scene is not
sufficient. Simmons v. State, 282 S.W.3d 504, 508
(Tex.Crim.App. 2009); Golden v. State, 851 S.W.2d
291,294 (Tex.Crim.App. 1993)
While Appellant cites Trevino in his brief, the
logic of his argument is a constant shell game ignoring
its holding. For the State’s case to stand, it only
has to link Appellant to the crime through
corroborating testimony, not, as the Trevino court
held, prove its case beyond a reasonable doubt.
Appellant attempts to make it appear as if he were only
present at the scene and played absolutely no part in
State’s Brief page -8-
the murder of Israel Casas. As we shall discuss below,
this was far from being factually correct.
Contrary to his assertions, we know that Appellant
was the one who provided the murder weapon. It was
being carried by the three for the purpose of breaking
into houses. Appellant knew that the gun was
accompanying them on what was to be an attempt to break
into people’s houses and burglarize them. He heard
Guerra state that is was “hit a lick night” before
leaving to rob houses, and “I’m a gangster, this is
what I do” after shooting. It didn’t curtail his
actions in assisting Guerra throughout the night. These
facts were part of his two separate statements to law
enforcement and which were read to the jury. Appellant
even admits that there was a discussion of them,
instigated by Guerra, to commit burglary while they
were in the process of switching from Appellant’s truck
to the Gator. [R.R. Vol. VI, pp. 223-229, 237-238]
Further, a jury is allowed to infer intent from the
actions of the defendant, including what he may have
State’s Brief page -9-
done after the crime itself. In this incident,
Appellant:
1. Provided the murder weapon which accompanied
them on the burglary run for protection;
2. Helped ditch the Gator in which they were
riding;
3. Used his own truck to leave the site where the
Gator was left;
4. Concealed his truck from protection both at the
time they transferred to the less identifiable
Gator and then again at the end of the night;
5. Convey Rigo Guerra, with Appellant’s shotgun,
to the Valero station knowing Guerra’s intent
to commit another robber. Appellant also knew
that Guerra had already shot someone earlier.
His only action after dropping Guerra off to
commit another robbery was to conceal his
truck, find a nice spot where he and Serna
could watch the robbery, and smoke more
synthetic marijuana.
State’s Brief page -10-
One of the facts of this case known to the jury was
that Serna in fact gave two statements as he had lied
to law enforcement in the first one. The first
statement, Appellant told a story where he did not even
go on the gator with Guerra and Serna, but remained
behind. This lie was told with the obvious intent of
not even placing him at the scene. Once confronted
with this untruth, he changed his story, but once again
tried to negate any part he played in the murder.
Another inconvenient fact in regards to his mere
presence, and which would lead a jury to disbelieve he
was mere a bystander was DNA evidence found at the
Casas home. In the carport, it was determined that an
empty soda can which had come from the Casas outdoor
refrigerator had been drunk by him. So in spite of
claims of no knowledge and no intent, as the time all
three were standing outside the Casas home with a gun,
Appellant was calmly helping himself to the Casas’
beverages.
State’s Brief page -11-
"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." Guevara v.
State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) Intent
may be inferred from circumstantial evidence such as
acts, words, and the conduct of the appellant. Id. at
50.
Therefore, the jury which convicted Appellant knew
that he had supplied the gun to the shooter, had known
that the intent of their trip was going to be burglary,
had hidden his truck twice during the night and
appropriated another vehicle, had driven the shooter
around including conveying him to commit another crime,
which he made sure he could watch while enjoying
synthetic marijuana, and then attempt to mislead police
in that he was even there.
Appellant’s shell game involves picking pieces of
the evidence which are only provided by Serna, and then
trying to hold the State’s corroborating evidence to a
State’s Brief page -12-
standard of proof beyond a reasonable doubt. A perfect
example would be the shotgun shells which came in only
through the testimony of Serna. Appellant opines that
because that fact is taken out by the reviewing court,
then he could not be culpable under the accomplice
witness rule. Not only does this thinking discount all
corroborating evidence which points to his guilt, but
it also tries to switch the rules of review. This
Court need only find that the corroborating evidence
somehow connected Appellant to the crime, not that it
proves the case beyond a reasonable doubt.
Time and again, Appellant in his brief points out
the fact that he made sure the gun was unloaded when he
initially handed it to Guerra. However, this brings up
multiple interesting points:
1. This fact comes from Appellant’s statement,
which has already been shown at court to be self-
serving and deceitful;
2. We know from Serna’s testimony that they made
a separate trip to his house to get shotgun
State’s Brief page -13-
shells. While not subject to this review, it is
an important fact in that the corroborating
evidence is not required to prove this case in
its entirety all by itself. It also shows that
even in his second statement, Appellant was
misleading in an attempt to protect himself in
omitting the trip to Serna’s home to get shotgun
shells.; and
3. It is evident from the facts of the case that
the gun was loaded at the time they entered the
Casas’ home, as proved by the shooting of Mr. and
Ms. Casas.
Only under Appellant’s logic does the State’s case
fail review. Only when you switch the standard from
finding a mere connection to the crime versus
reasonable doubt, does Appellant’s reasoning hold
water. All facts and circumstances may be considered
in this Court’s review of whether there was sufficient
corroboration to the accomplice witness testimony.
Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1999)
State’s Brief page -14-
Appellant states in his brief that he was merely
present and had no intent to commit a burglary by
entering beyond the garage. We know from a review of
the corroborating evidence that even if Appellant did
not go into the house further than the garage, he had
committed multiple acts at several points during the
night to facilitate this burglary occurring and to
avoid possible detection or capture. We also know from
the corroborating evidence listed above that he had
full knowledge of what was occurring and it indicates
his intent to participate, which is why Appellant’s
citation of Gross is nonsensical. Gross v. State, 380
S.W.3d 181 (Tex.Crim.App. 2012) [Where reversal due to
no evidence showing that defendant ever knew they were
going to shoot the victim, involvement with the victim
was serendipitous and not part of a plan, as was the
presence of the shotgun used to kill the victim.]
As indicated prior, the State concedes that mere
presence at the scene of a crime is insufficient
corroboration, but there is so much corroborating
State’s Brief page -15-
evidence which shows that Appellant was a full and
willing participant. Further, while mere presence may
be insufficient, when coupled with other suspicious
circumstances, may tend to connect Appellant to the
offense. Dowthitt v. State, 931 S.W.2d 244, 249
(Tex.Crim.App. 1996) There can be no doubt that there
is sufficient corroborating evidence, when taken as a
whole, that tend to connect Appellant to this crime.
APPELLANT’S POINTS OF ERROR NUMBER TWO
The evidence is legally insufficient to support a
finding that Appellant was guilty of Felony Murder
pursuant to Texas Penal Code 19.02(b)(3).
STATE’S REPLY
Jurors may make inferences as to intent, design and
plan based upon the evidence, and they correctly
determined there was sufficient evidence to show
Appellant guilty beyond a reasonable doubt.
Argument and Authorities
The United States Constitution requires that a
criminal conviction be supported by evidence "necessary
State’s Brief page -16-
to convince a trier of fact beyond a reasonable doubt
of the existence of every element of the offense."
Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). A reviewing court must view
the evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt. Id. at 319; Laster v. State, 275
S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Proper
deference must be given to the jury's determination of
the credibility of the evidence. Id. Unlike the
discussion above, there is no need to discount any of
the evidence which was submitted at trial.
In spite of this fact, Appellant continues to argue
that at the time he handed the gun to Guerra, it was
unloaded. As this issue’s review allows us to examine
all evidence before the jury, including accomplice
witness, we know that there was a trip to Serna’s house
to get shells to load the gun.
State’s Brief page -17-
Appellant goes further, stating that even though
they had talked about robbing houses, they had hid his
truck, had gotten a less identifiable ride in the
Gator, and were now drinking sodas in a strange garage,
he somehow could not have foreseen Guerra and Serna
would actually rob the house. The weapon they were
carrying, the manner in which they approached the
house, their actual presence in the garage during the
middle of the night and their conversations up until
this point ALL show how Appellant could have
anticipated what had happened. He had spent the
evening planning and assisting to make sure it
happened, but then he was surprised when it actually
did happen? That strains credulity.
It also goes further in arguing that he did not
have the intent to shoot Israel Casas, which does not
matter. Under Texas Penal Code 7.02(b), he is not
required to develop that intent. Rather, he merely
becomes responsible when the murder was a result of a
crime he and his cohorts did intend to commit, which
State’s Brief page -18-
was burglary of a habitation. Appellant falsely claims
that he would have had to have been a part of a
conversation between Guerra and Serna where Guerra
talked about killing people to have the necessary
intent for culpability. This is simply not true, all
that is required is whether he should have anticipated
the shooting as a result of the burglary.
When discussing reasonable anticipation of Mr.
Casas shooting, we are talking about entering a strange
home in the middle of the night. We know from evidence
that the electricity was on and that there were dogs
barking, an indication that the house was not
abandoned. As Appellant himself had a soft drink out
of the Casas fridge, he knew this was not an abandoned
house. Now if Appellant cannot be said to have a
reasonable anticipation of Guerra shooting someone
inside the house with his shotgun, then it begs the
question: what was the shotgun for? Unless Appellant
thinks there might have been a covey of quail inside
the Casas home, there can be no other intent for
State’s Brief page -19-
providing it and carrying it into the home than to
shoot those inside of it should the burglars need that
protection. The only logical conclusion is that they
carried the gun into the house to facilitate the
burglary, so it is ridiculous to claim that it could
not be anticipated when the even for which the gun was
purposed actually happened.
The State would reference all the actions detailed
therein by the State in support of Appellant’s
involvement and participation in the burglary of the
Casas home. The State will not waste the Court’s time
by listing them a second time.
Upon consideration in a light most favorable to the
verdict, there are multiple acts by Appellant to show
him a willing participant in the act of burglary of the
Casas home. He also supplied the weapon which was
taken into the home and resulted in the shooting of Mr.
and Mrs. Casas. When arming yourself to rob a house,
the shooting of an occupant of that house is a natural
and possible outcome. The very presence of the gun
State’s Brief page -20-
speaks to an intent to shoot anyone who they may
encounter inside, otherwise there would be no reason to
have it. Under 7.02(b) of the Penal Code, Appellant’s
participation in the burglary and the likely outcome of
a shooting coming from that burglary make him culpable.
The evidence was sufficient for the jury to make their
verdict.
PRAYER
Wherefore, the State respectfully prays this
Honorable Court affirm the judgment of the trial court,
the jury and for such relief to which it may be justly
entitled.
State’s Brief page -21-
Respectfully submitted,
Rene Pena
District Attorney
81st/218th Judicial District
/s Marc Ledet
Marc Ledet
Asst. District Attorney
81st/ 218th Judicial District
1327 Third Street
Floresville, Texas 78026
Telephone: 830 / 393-2200
Fax: 830/ 393-2205
State Bar No. 24002459
marcledet@81stda.org
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above
and foregoing State's Brief has been sent
electronically to the attorney of record on this the
24th day of June, 2015.
/s Marc Ledet
Marc Ledet
Asst. District Attorney
81st/218th Judicial District
State’s Brief page -22-
CERTIFICATE OF COMPLIANCE
I hereby certify that in accordance with the rules
the number of words contained in this brief as verified
by Microsoft Word is 3,325.
/s Marc Ledet
State’s Brief page -23-
Destyn David Frederick v. State
Combined Opinion