Abrego, Jesus Efrain

• Court: Court of Appeals of Texas
• Decided: April 16, 2015
• Docket: PD-0417-15
• Status: Published

Opinion

PD-0417-15 April 16, 2015

NO. ___________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

__________________________________________________________________

JESUS EFRAIN ABREGO, Petitioner v.

THE STATE OF TEXAS Respondent

On Appeal from Cause No. 1335057D in the 371st District of Tarrant County, Texas, Honorable Mollee Westfall,, Judge Presiding, and No. 07-14-00171-CR in the Court of Appeals for the Seventh District of Texas __________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW ____________________________________________________________________

Stickels & Associates, P.C. John W. Stickels TBN: 19225300 P. O. Box 121431 770 N. Fielder Rd. Arlington, Texas 76012 Phone: (817) 479 - 9282 Fax: (817) 622 – 8071 john@stickelslaw.com Attorney for Petitioner

NO ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................................... i

TABLE OF AUTHORITIES ............................................................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY ................................................................. 1

GROUNDS FOR REVIEW ................................................................................................ 1

I. The Seventh Court of Appeals erred when it did not find that there was insufficient

evidence to support Petitioner’s conviction. ....................................................................... 1

REASONS FOR REVIEW .................................................................................................. 2

DISCUSSION ...................................................................................................................... 2

ARGUMENTS .................................................................................................................... 4

A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW: ...................... 4

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE: ....................... 5

PRAYER FOR RELIEF ...................................................................................................... 6

CERTIFICATE OF SERVICE ............................................................................................ 7

CERTIFICATE OF COMPLIANCE .................................................................................. 8

APPENDIX ......................................................................................................................... 9

i TABLE OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). ................................................. 5

Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001). .................................................. 4

Jackson v. Virginia, 443 U.S. 307 (1979) ........................................................................... 4

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993). .................................................. 5

Statutes

Tex. Penal Code §2.01(2003). ............................................................................................. 5

Rules

Tex. R. App. P. 66.3 ............................................................................................................ 2

Tex. R. App. P. 9(4)(i)(1). ................................................................................................... 8

Tex. R. App. P. 9.4(e) .......................................................................................................... 8

ii STATEMENT REGARDING ORAL ARGUMENT

Petitioner does not request oral argument in this case.

STATEMENT OF THE CASE

Petitioner’s jury trial was held in the 371st District Court of Tarrant County,

Texas, before the Honorable Mollee Westfall, Judge Presiding. (R.R. Vol. 1 – 4).

The jury convicted Petitioner for the offense of aggravated robbery. (CR. 33-38,

50; ROA. 3, 130.) The jury sentenced Petitioner to confinement for forty (40)

years in the Institutional Division of the Texas Department of Criminal Justice.

(C.R. 41-45, 50; ROA. 3, 144). Petitioner has remained in custody pending

appeal. Petitioner has remained in custody pending appeal.

STATEMENT OF PROCEDURAL HISTORY

The opinion by the Seventh District Court of Appeals affirming the trial

court’s decision was handed down on March 13, 2015. Therefore, this PDR was

due on April 13, 2015. A Motion for Leave to File PDR Late is being tendered

herwith.

GROUNDS FOR REVIEW

I. The Seventh Court of Appeals erred when it did not find that there was

insufficient evidence to support Petitioner’s conviction.

1 REASONS FOR REVIEW

1. The decision of the Seventh Court of Appeals conflicts with decisions

rendered by the Court of Criminal Appeals.

2. The decision of the Seventh Court of Appeals conflicts with the decisions

of other courts of appeals.

3. The decision of the Seventh Court of Appeals so far deviates from the

fair administration of justice that a Court of Criminal Appeal’s correction is

required. See Tex. R. App. P. 66.3

DISCUSSION

Petitioner was wrongfully convicted of the felony offense of aggravated

robbery because the alleged victim of the crime misidentified Petitioner as the he

person who robbed him. The victim misidentified Petitioner as the person who

robbed him because it was too dark for the victim to see who robbed him. Thus,

without the wrongful identification, the jury would not have convicted Petitioner of

this offense.

U. U., the victim of this crime, lives in Carrolton, Texas, and works as a

financial planner for an insurance company. (4 RR 15-17). U. U. also has a hobby

as an amateur photographer who routinely contacts models on a website called

Model Mayhem. (4 RR 17-19). On the night of the robbery, U. U. contacted a 2 prospective model, M., and arranged to photograph her at her apartment in Haltom

City, Texas, so he could photograph her. (4 RR 21).

U. U. arrived at M.’s apartment at about 9:15 p.m. and set up for the

photography shoot. An unknown male was at the apartment with M. (4 RR 24). U.

U. thought the photo-shoot would take about an hour. 4 RR 26. However, it ended

up lasting a lot longer and U. U. decided to leave and he went to his car. (4 RR 26).

M. followed U. U. to the car so she could be paid. (4 RR 26-27). However, M. did

not make it all the way to the car because her friend told her she had a phone call

from her grandmother. (4 RR 26-27). Petitioner continued to his car and waited for

M. to come get paid. (4 RR 27).

M. came to the car and U. U. wrote her a check. (4 RR 28). As U. U. was

writing M.’s check, two men came up directly to the car. (4 RR 28). The first man

pulled a gun on U. U. and as told U. U. to give him whatever he had on him. (4 RR

28-29). U. U. gave the man his wallet and cell phone. (4 RR 29-30). The second

man opened the car door, ransacked the car and tool cameras, eye glasses,

sunglasses, checkbook, driver’s license, gift cards, and camera lenses. (4 RR 29-

30).

3 The second man also took the monograms (decals) from U. U.’s car. 4 RR

30. After the two men left, U. U. drove away, parked at a gas station under the

light, and called the police. (4 RR 34-35).

Sometime after the robbery, U. U. viewed six similar photographs at the

Haltom City Police Department. (4 RR 43-44). U. U. picked the person who held

the gun on him out of the photographic lineup. (4 RR 44). U. U. picked Petitioner

out of the photographic line up and identified him in court as the person who had

the gun and robbed him. (4 RR 45-46). On cross examination, U. U. admitted that

it was very dark when the robbery happened. (4 RR 51-52). U. U. also admitted

that he was focused on the weapon. (4 RR 55-56).

ARGUMENTS

A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW:

When reviewing a claim of insufficiency of the evidence, the appellate court

must determine, after considering all the evidence in the light most favorable to the

verdict, whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). In conducting this

review of insufficiency, the court does not reevaluate the weight and credibility of

the evidence, but only ensures that the jury reached a rational decision. Muniz v. 4 State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Whether the evidence

satisfies the Jackson test is a matter of law. The Jackson v. Virginia legal-

sufficiency standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:

The State is required to prove every element of an offense beyond a

reasonable doubt. Tex. Penal Code §2.01(2003). According to the evidence

adduced at trial, there is both factually and legally insufficient evidence for the jury

to have found beyond a reasonable doubt that Petitioner committed the indicted

offense. As a result, this Court should overturn his convictions and order an

acquittal.

A person commits the criminal offense of aggravated robbery if the person

uses threats force to commit a theft and uses or exhibits a deadly weapon. Tex.

Penal Code §29.03(1994). The State failed to prove each and every element of the

offense charged. Specifically, the State failed to prove that Petitioner was the

person who committed the offense in question because of a mistaken identity

and/or misidentification. 5 U. U., the victim of the robbery, was not able to adequately identify the

person who robbed him because it was too dark to see. Therefore, the State failed

to prove each and every element of the offense charged because there is

insufficient evidence to show that Petitioner was one of the people who robbed U.

U. evidence clearly shows that Petitioner was living at the Gardenia Street

residence on As a result, there is insufficient evidence to sustain Petitioner’s

conviction and this court must reverse his conviction.

The Seventh Court of Appeals erred when it did not find that there is

insufficient evidence to sustain Petitioner’s conviction and this court should

reverse Petitioner’s conviction.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

that this Court grant discretionary review and allow each party to fully brief and

argue the issues before the Court of Criminal Appeals and that upon reviewing the

judgment entered below, that this Court reverse this cause and remand it for a new

trial.

6 Respectfully submitted,

Stickels & Associates, P.C. P. O. Box 121431 770 N. Fielder Rd. Arlington, Texas 76012 Phone: (817) 479 - 9282 Fax: (817) 622 – 8071 john@stickelslaw.com

BY: /S/ John W. Stickels John W. Stickels State Bar No. 19225300 Attorney for Jesus Efrain Abrego

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has

been furnished to counsel for the State via hand delivery and on the State

Prosecuting Attorney via regular mail on this 14th day of April, 2015.

/S/ John W. Stickels John W. Stickels

7 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Tex. R. App. P.

9.4(i)(2) because it contains 4,108 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9(4)(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

because it has been prepared in proportional spaced typeface using

Windows Word software in Times New Roman 14-Point text and Times

New Roman 12-point font in footnotes.

8 APPENDIX

1. Opinion of the Seventh Court of Appeals