PD-0797-15
NO. ________________
IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS _______________________________________________
ARTURO CHAVEZ Petitioner,
V.
STATE OF TEXAS Respondent. ____________________________________________________
On Appeal from the 338th Judicial District Court for Harris County, Texas - Trial Court No. 1338052 Appeal No. 01-14-00232-CR _________________________________________________________
ARTURO CHAVEZ’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________________
DEGUERIN, DICKSON, HENNESSY & WARD
Matt Hennessy July 30, 2015 State Bar No. 00787677 1018 Preston, 7th Floor Houston, Texas 77002 (713) 223-5959 Telephone (713) 223-9231 Facsimile
July 29, 2015 ATTORNEY FOR PETITIONER
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
Table of Contents…………………………………………………….. ii
Table of Authorities…………………………………………………... iii
Statement Regarding Oral Argument…………………………………. 1
Statement of the Case…………………………………………………. 1
Statement of Procedural History……………………………………… 2
Grounds for Review…………………………………………………… 2
Argument……………………………………………………………… 3
Conclusion…………………………………………………………….. 18
Certificate of Service………………………………………………….. 19
Appendix A
ii TABLE OF AUTHORITIES
Cases
Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007) ……………… 8
Cruz v. State, 690 S.W.2d (Tex. Crim. App. 1985)……………………… 11
Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997)……... 10
Hernandez v. State, 1997 WL 33641950 at *6 (Tex. App.—Corpus Christi 1997, no pet.)…………………………………………………… 11
Holladay v. State, 709 S.W.2d 194, 199–200 (Tex. Crim. App. 1986)….. 4
McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997)…………. 3
Miller v. State, 177 S.W.3d 177 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)……………………………………………………………….. 8
Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983)………… 4
Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993)………….. 12
Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009)……….. 4
Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011)…………… 3
Wincott v. State, 59 S.W.3d 691 (Tex. App.—Austin 2001, pet. ref’d)…. 12
Statutes
Article 38.14 of the Texas Code of Criminal Procedure…………………. 3
iii Statement Regarding Oral Argument
This is an accomplice-witness case. The court of appeals misapplied the
standard of review in concluding that there was non-accomplice testimony that
tended to connect Petitioner “with planning the commission of the offense”
(Appendix A at 9), and it separately failed to assess the reasonableness of the jury’s
chosen view of the non-accomplice testimony. Oral argument will assist the Court
in addressing the grounds raised in this petition.
Statement of the Case
A jury convicted Petitioner of murder based on accomplice-witness testimony
and sentenced him to life in prison. CR. 6 (Indictment); 609-10 (Judgment). The
court of appeals held that there was sufficient non-accomplice evidence that tended
to connect Petitioner to the commission of the offense and affirmed the conviction.
This petition identifies the flaws in the court of appeals’ reasoning. The lower court
was able to affirm the conviction only by using a standard that diminished the burden
that the State must carry in an accomplice-witness case, and by failing to consider
whether the jury’s chosen view of the evidence was reasonable.
1 Statement of Procedural History
The court of appeals issued its decision on May 28, 2015. No motion for
rehearing was filed. This Court granted an extension of time to file a petition until
July 29, 2015.
Grounds for Review
1. Whether the court of appeals correctly applied the standard of review
in assessing the sufficiency of the non-accomplice evidence in this case.
2. Whether, under the correct application of the standard of review, non-
accomplice testimony that Petitioner once borrowed a friend’s car tended to connect
Petitioner to the commission of the crime when there was no non-accomplice
evidence that tied the car to the offense.
3. Whether the court of appeals assessed the reasonableness of the jury’s
chosen view of the non-accomplice evidence before deferring to that view.
4. Whether the court of appeals erred in misinterpreting the quality and
quantum of evidence necessary to corroborate accomplice testimony in a murder
case.
5. Whether it was reasonable to conclude that non-accomplice evidence
that Petitioner assisted the perpetrators only after the murder had been committed
sufficiently connected him to the actual commission of that offense.
2 Argument
A. Reasons for Review.
While the court of appeals correctly identified the standard of review in an
accomplice-witness case, it failed to rigorously adhere to that standard in its review
of this case. Under Article 38.14 of the Texas Code of Criminal Procedure, “A
conviction cannot be had on the testimony of an accomplice witness unless
corroborated by other evidence tending to connect the defendant with the offense
committed; and the corroboration is not sufficient if it merely shows the commission
of the offense.” The court of appeals expressly accepted that it must “eliminate from
consideration the accomplice testimony and then examine the other inculpatory
evidence to ascertain whether the remaining evidence tends to connect the defendant
with the offense.” Appendix A at 3 (quoting McDuff v. State, 939 S.W.2d 607, 612
(Tex. Crim. App. 1997)). But the court failed to eliminate the accomplice’s
testimony in its review of the non-accomplice evidence despite this
acknowledgement. If the court of appeals had properly applied the standard of
review, it would have concluded that there was no non-accomplice evidence to
support a finding that Petitioner participated in “planning the commission of the
offense.” See Appendix A at 9. Such a conclusion would have diminished “the
combined force of the non-accomplice evidence,” and weakened the already shaky
ground upon which the verdict rested. See id. at 4 (citing Smith v. State, 332 S.W.3d
3 425, 442 (Tex. Crim. App. 2011); Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim.
App. 1983)).
This Court has held that “when there are two permissible views of the
evidence (one tending to connect the defendant to the offense and the other not
tending to connect the defendant to the offense), appellate courts should defer to that
view of the evidence chosen by the [jury].” Simmons v. State, 282 S.W.3d 504, 508
(Tex. Crim. App. 2009). Such “[c]onfirmation as to the defendant’s connection to
the offense, however, should be by independent evidence from which the jury may
reasonably be satisfied.” Id. (quoting Holladay v. State, 709 S.W.2d 194, 199–200
(Tex. Crim. App. 1986) (emphasis added)). The court of appeals seems to have
misread Simmons’ guidance regarding different “permissible views of the evidence”
to mean that it should defer to the jury’s chosen view of the evidence without regard
to whether the jury’s view was reasonable. If reasonableness of the jury’s view had
been part of the court’s analysis, the evidentiary shortcomings identified in
Petitioner’s opening brief and his reply brief should have led the court to conclude
that the non-accomplice evidence regarding Petitioner’s conduct after the murder
did not tend to connect him to the offense. See App. Brief at 15-21; Reply Brief at
5-16. However, none of those evidentiary deficiencies is addressed in the court’s
opinion. Proper application of the law in this case should have resulted in an
acquittal.
4 B. Background.
The decedent, Santiago Garcia, was shot and killed on a sidewalk near a park
in Baytown in November 2004. Appendix A at 2. The Baytown Police Department
began their investigation immediately, but the case soon went cold. Id. A break
came in 2011 when new information led the Baytown investigators to interview
Daniel Torres. Id. Torres confessed to participating in Garcia’s murder in the
interview, and he implicated Petitioner and Carlos Barrera. Id. Petitioner, Barrera
and Torres were charged with Garcia’s murder soon thereafter.
Torres agreed to testify against Petitioner in return for the State’s
recommendation for a fifteen-year sentence. Id. Torres told the jury that he drove
Barrera to the park in a borrowed, green Impala where Barrera shot Garcia. Id. at 2,
9. Torres drove from the scene with Barrera, and they later met up with Petitioner
at his father’s home. Id. at 10. According to Torres, he and Barrera committed the
murder at Petitioner’s direction, but no non-accomplice evidence supported his
claim. Id. at 2, 9.
C. Non-Accomplice Evidence.
The court of appeals held that the “combined force” of the testimony of three
non-accomplice witnesses tended to connect Petitioner to the commission of the
offense, and therefore the non-accomplice evidence together with Torres’s testimony
provided a sufficient basis for the conviction. See id. at 3, 5-7. Only one of these
5 non-accomplice witnesses, W. Navarrete, provided testimony regarding Petitioner’s
conduct before the murder. Id. at 5. The testimony of the other two witnesses, F.
Velasquez and C. Benavidez, was limited to events that occurred after the
commission of the offense. Id. at 5-7.
1. Non-Accomplice Evidence—Before the Murder.
Navarrete testified that Petitioner borrowed his green Impala on one occasion,
but he did not remember the date of the loan. Id. at 5. Chavez asked to borrow the
car because someone owed him money, and he did not want to be seen in his own
car. Id. Navarrete did not offer any testimony that connected his car to Garcia’s
murder or to Torres or Barrera—he did not know them. See id. at 5, 10. In assessing
this testimony, the court of appeals concluded: “Although [Navarrete] could not
remember the date, [his] description of events corroborated Torres’s testimony about
the timing and circumstances of borrowing the green Impala.” Id. at 7. But that is
not the test for determining the sufficiency of non-accomplice evidence. The test is
whether non-accomplice evidence—standing alone—tends to connect a defendant
to the commission of the offense. See id. at 4 (citing Smith v. State, 332 S.W.3d 425,
442 (Tex. Crim. App. 2011); Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim.
The only evidence that tied Navarrete’s green Impala to Garcia’s murder came
from Torres who was an accomplice as a matter of law. See id. at 5 (trial court
6 instructed jury that he was an accomplice). Without Torres’s testimony, all that the
record supports is that Chavez borrowed Navarrete’s car at some unidentifiable time
in the past. There was absolutely no non-accomplice evidence to connect
Navarrete’s car with Garcia’s murder. The fact that Chavez once borrowed it,
without any additional non-accomplice evidence, did not tend to connect Chavez to
the crime. The court of appeals was wrong to conclude otherwise. This failure to
correctly apply the law warrants this Court’s review.
2. Non-Accomplice Evidence—After the Murder.
The remaining non-accomplice testimony identified by the court of appeals
came from F. Velazquez and C. Benavidez. See Appendix A at 5-7. Both of them
related events that occurred after the completed offense. Id.
a. F. Velasquez.
The court summarized Velazquez’s testimony as follows:
Velasquez, Chavez’s friend, testified that Chavez called him on November 14, 2004, the day before the murder. In the conversation, Chavez reported that Garcia had tried to break into his house. Later that night, early on November 15, Chavez called Velasquez again and said, “[T]hey had killed Garcia.” Chavez told Velasquez that Barrera and Torres were on their way to Velasquez’s house in Beaumont. Barrera and Torres arrived at Velasquez’s house about forty-five minutes later. Chavez, his family, and his brother also arrived at Velasquez’s home. Chavez, his brother, Barrera, Torres and Velasquez went into a tent on Velasquez’s property. Inside the tent, Chavez tried to burn the gun with a plumber’s torch; when it would not melt, Chavez took the gun apart. Chavez, Torres, and Barrera each took some of the parts, and Chavez threw a part of the gun in the water behind the house. Shortly afterward, everyone left Velasquez’s house. Chavez told 7 Velasquez that he planned to go to Mexico so that “everything would cool down.”
Id. at 5-6.
The court of appeals concluded that “Velazquez’s testimony about Chavez’s
attempts to destroy a gun on the night of Garcia’s murder tends to connect Chavez
to the crime,” citing Miller v. State, 177 S.W.3d 177 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d) and Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007). Id.
at 7. However, neither case is on point.
Miller is a self-defense case. See Miller, 177 S.W.3d at 180. The defendant
testified that he shot the complainant because he was in fear of his life. Id. The
accomplice-witness rule is never even mentioned in that case.
Castillo is an accomplice-witness case, but the non-accomplice evidence in
that case is vastly different than here. The court summarized the non-accomplice
evidence as follows:
The…non-accomplice testimony includes evidence that appellant was seen wearing the victim’s necklace shortly after the murder, that appellant was seen with a gun and with the accomplices in the hours before the murder, that the victim made a plan just prior to his murder to meet one of the accomplices, that appellant told a fellow inmate that he and accomplices had planned a robbery, that appellant shot the victim multiple times when the victim attempted to run, that Lucinda overheard appellant admit to Teresa that he was responsible for shooting someone, and that Brown overheard a similar conversation between appellant and Teresa. This evidence is sufficient to “tend to connect” appellant with the murder and robbery. Art. 38.14.
8 Castillo, 221 S.W.3d at 693. There was also testimony that the appellant said that
he had hidden a gun and a bullet-proof vest in a field. Id.
In stark contrast to Castillo, there was absolutely no non-accomplice evidence
that tended to connect Chavez to events that occurred before Garcia’s murder or to
the murder itself.1 The court of appeals’ reference to Miller and Castillo as support
for the conviction evinces a fundamental misinterpretation of the evidence in this
case, and suggests that the court did not properly evaluate the reasonableness of the
jury’s verdict.
b. C. Benavidez.
The other non-accomplice witness relied upon by the court of appeals was
Chavez’s ex-wife, C. Benavidez. The court summarized her testimony as follows:
C. Benavidez testified that Chavez woke her up in the middle of the night of the murder, telling her that they were not safe in the house and needed to leave. Chavez, Benavidez, and their children went to a hotel and stayed there for a few hours. Then they drove to Velasquez’s house in Beaumont. Benavidez remained in the parked car outside the house, but she saw Barrera and Torres from the car. She saw Chavez, Barrera, Torres, and Velasquez go inside; she remained in the car for an hour or two. Chavez and Barrera then returned to the car. Chavez drove to a pier. On the way, Chavez and Barrera discussed Garcia’s murder, stating that they did him a favor because he had been doing drugs and he could be with his deceased father. When they arrived at the pier, Barrera exited the car and dropped an object into the water.
Later that day, Chavez, Benavidez, and their children left for Mexico. They returned from Mexico two months later. Chavez openly talked
1 Navarrete’s green Impala provided no such connection. 9 about the murder with other people in front of Benavidez during the years between the murder and the trial.
Appendix A at. 6-7.
The court of appeals concluded:
Benavidez’s testimony that Chavez moved their family in the middle of the night to a hotel, then to Beaumont and Mexico, is evidence of Chavez’s flight and consciousness of guilt. Velasquez similarly testified that Chavez planned to go to Mexico until everything calmed down after Garcia’s murder. Evidence of a defendant’s flight may tend to connect him with a crime when combined with other corroborating circumstances. See Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (“Evidence of flight and guilty demeanor, coupled with other corroborating circumstances, may tend to connect a defendant with a crime.”) [(citation omitted)]; Miller, 177 S.W.3d at 184 (flight immediately after shooting is circumstantial evidence of guilt). Finally, Benavidez testified that Chavez took partial credit for the murder when he spoke with Barrera stating that they had done Garcia a favor by killing him.
Appendix A at 7.
As already discussed, Miller is not an accomplice-witness case. In Miller, the
defendant confessed to the killing on the stand and sought to explain it. See Miller,
177 S.W.3d at 180. The issue under review was whether the State had sufficiently
disproven the claim of self-defense. The court’s analysis of the evidence in that case
provides no guidance here. While Hernandez is an accomplice-witness case, the
court of appeals’ reliance on it is misplaced here as well, but for different reasons.
3. Hernandez v. State.
10 Hernandez is an accomplice-witness case with an unusual procedural history.
On initial review, the court of appeals reversed Hernandez’s conviction and ordered
an acquittal because the non-accomplice evidence did not tend to connect the
defendant to the crime. See Hernandez, 939 S.W.2d at 176-77. The court of appeals
relied heavily on Cruz v. State, 690 S.W.2d (Tex. Crim. App. 1985), in reaching this
conclusion. See Hernandez, 939 S.W.2d at 176-77. This Court disagreed with the
court of appeals’ reliance on Cruz, reversed the court of appeals for failing to
properly consider the facts before it, and remanded the case for reconsideration.
Hernandez, 939 S.W.2d at 179. On remand, the court of appeals reversed the
conviction a second time, holding that the accomplice’s testimony from a prior trial
should not have been admitted at Hernandez’s trial. See Hernandez v. State, 1997
WL 33641950 at *6 (Tex. App.—Corpus Christi 1997, no pet.). Admission of that
testimony violated the confrontation clause. Id. This Court’s disagreement with the
court of appeals in Hernandez was, therefore, based on an analysis of facts that never
should have been considered by a jury in the first place. For that reason, Petitioner
suggests that a court of appeals’ reliance on the specific factual analysis—as opposed
to general statements of law—in Hernandez merits cautious review.
Procedural history aside, the Hernandez court granted review because the
lower court “failed to take into account facts which distinguish Cruz from the instant
case and ignored caselaw which speaks directly to the significance of such facts.”
11 Hernandez, 939 S.W.2d at 177 (citing Munoz v. State, 853 S.W.2d 558, 559 (Tex.
Crim. App. 1993) (noting each case must be considered on its own facts and
circumstances)). Here, review is warranted to address the court of appeals’ similar
failure to distinguish the facts in Hernandez from the facts of this case, as well as
the lower court’s disregard for the holdings in Cruz and Wincott v. State, 59 S.W.3d
691 (Tex. App.—Austin 2001, pet. ref’d). Cruz and Wincott speak directly to the
to the facts of this case.
4. Cruz v. State.
An examination of how this Court compared the facts before it in Hernandez
with those in Cruz is instructive. The Hernandez court summarized the facts in Cruz
as follows:
No connection was shown between the rifle and pistol [Cruz] had been seen with at some, unspecified time prior to the murder, and the weapons used to kill [the victim]. The State never even proved the caliber of the murder weapons or bullets. Similarly, the State does not explain the significance of the discovery of the Christmas gift in the truck, in connecting [Cruz] to the murder….[Cruz] was never linked to the truck, and the discovery of the truck and the Christmas gift was never connected to the murder.
[T]he testimony only narrowed the time of death between December 24th and December 27th. No one testified as to when they last saw [Cruz] on the victim’s property or with the accomplice. Since [Cruz] lived on the victim’s property, just 200 yards from the victim’s house, his presence there was of limited significance. We stated that there was essentially nothing tending to connect [Cruz] to the offense apart from the accomplice witness testimony; the fact that [Cruz] lived near the victim and went away following the murder did not tend to connect [Cruz] to the offense. 12 Hernandez, 939 S.W.2d at 177.
Contrasting the evidence before it with that in Cruz, the Hernandez court held
that “there was non-accomplice evidence that [Hernandez] was with the accomplice
on the night of the offense about two hours before the murder….Witnesses Richard
Cisneros and Andres Salgado also testified that they saw [Hernandez] with [the
victim] around 8:00 that night.” Id. at 178. “Cisneros further testified [Hernandez]
showed him a 12–gauge sawed-off pump shotgun a few months before the murder.
Dr. Dahm, the pathologist who performed the autopsy, testified that a 12–gauge
shotgun was probably used to kill the victim. Officer Perez, an investigating officer
in the case, also stated that he believed a 12–gauge shotgun was used to commit the
murder.” Id. The Court also noted that Hernandez “left Brownsville without
explanation after the offense.” Id. All of this led this Court to conclude that the
Hernandez court of appeals mistakenly relied on Cruz. See id. at 178-79.
As in Hernandez, the court of appeals in this case relied on the wrong
authority in reaching its conclusion. However, the court of appeals’ mistake in this
case was the opposite of that committed in Hernandez. In Hernandez, the court of
appeals erred by concluding that the facts were similar to those in Cruz. Here, the
court of appeals’ error was in refusing to recognize that the facts in this case have
more in common with Cruz than Hernandez.
13 Unlike Hernandez, there was no non-accomplice evidence placing Petitioner
with Garcia near the time of the murder, and there was no evidence that Petitioner
had any connection with any weapon prior to the offense. Petitioner did leave home
in Baytown soon after Garcia’s murder, but his flight is not analogous to
Hernandez’s flight from Brownsville. Hernandez left after the murder and he was
indicted shortly thereafter. Id. at 175. He remained a fugitive for more than four
years, and was forcibly returned to Brownsville following his arrest. See id. After
Garcia’s murder, Petitioner went to a family home in Mexico and returned two
months later. See Appendix A at 7. He lived in Baytown until his arrest in 2012,
more than seven years after the offense.
In Cruz, there was evidence that Cruz was on the victim’s property at the time
of the murder. See Cruz, 690 S.W.2d at 248, 250-51. But the Cruz court found that
evidence to be only a slight connection at best because Cruz lived there. Id. at 250-
51. That connection was not substantial enough to make Cruz’s flight to Mexico
immediately after the murder a significant fact in the Court’s analysis, despite the
fact that Cruz was arrested when he tried to cross the border in California. Id. at
248, 250-51. Here, there was absolutely no evidence—accomplice, non-accomplice,
direct or circumstantial—that Petitioner was at or near the scene of Garcia’s murder.
Consequently, Petitioner’s travel to Mexico after Garcia’s murder is even less
significant than Cruz’s immediate flight. See id. at 250-51.
14 Cruz and Hernandez were accused of being the primary actors—they were
accused of actually shooting the victims. In both cases, there was evidence that Cruz
and Hernandez possessed firearms similar to those used to commit the crimes before
the crimes were committed. See Hernandez, 939 S.W.2d at 177-78. Petitioner was
not accused of being the primary actor, and there was no evidence that he possessed
a firearm of any kind prior to Garcia’s murder. These facts further distinguish
Hernandez from this case, and they tend to distance this case from Cruz as well.
There are fewer connections between Petitioner and the offense than were present in
Cruz—a case that resulted in an acquittal. The court of appeals’ reliance on
Hernandez was misplaced. The court should have been guided by Cruz.
5. Wincott v. State.
The court of appeals also erred in not recognizing the import of the factual
analysis in Wincott v. State, 59 S.W.3d 691 (Tex. App.—Austin 2001, pet. ref’d).
Drawing further on C. Benavidez’s testimony, the court of appeals noted that she
“testified that [Petitioner] took partial credit for the murder when he spoke with
Barrera stating that they had done Garcia a favor by killing him.” Appendix A at 8
(emphasis added). That actual testimony regarding this point was ambiguous, and
Petitioner’s brief and reply brief directed the court of appeals’ attention to Wincott
to assist in determining how to deal with such testimony. See Pet. Corrected Brief
15 at 16-17; Pet. Reply Brief at 14-16. However, the court of appeals dismissed its
applicability.
Benavidez claimed to have heard a conversation between Petitioner and
Barrera soon after they left Velazquez’s house. She testified as follows:
[Petitioner and Barrera] were saying things like, you know, they did [Garcia] a favor because he was like gone already, like I guess [Garcia] had been doing drugs or something. And they were talking about that they did him a favor and nobody cared about him. They said something like the only person that cared about him was his dad and he was gone and now [Garcia] could be with his dad.
8 RR. 116. When asked to recount any other conversations she overheard regarding
the murder, she said “I don’t remember exactly what was said.” 8 RR. 122.
Benavidez never testified that Petitioner claimed responsibility for Garcia’s murder.
She never testified that Petitioner said that “I” or “we” did it.
In Wincott, a woman testified about a conversation that she had with the
defendant about the string of robberies he was accused of committing. Wincott, 59
S.W.3d at 701. The woman said that Wincott told her that “he had done some bad
things and…express[ed]…relief over being arrested.” Id. The State admitted letters
from Wincott to the same woman in which he similarly “express[ed] sorrow for the
bad things he had done.” Id. The State also admitted a letter from Wincott to a
second woman in which he told her that “they should not talk about his arrest because
he was ashamed of it.” Id. The court concluded that this evidence was inconclusive
at best. Id. at 701. The court observed: 16 In their vague context—a conversation involving various subjects any of which could be construed as “bad things”—[Wincott’s] statements do not tend to connect him to the crimes with which he was charged. At most, they raise a mere suspicion that he is referring to his participation in the robberies. As noted, even a strong suspicion is insufficient to satisfy article 38.14.
Id. at 702.
Wincott’s statements were more clear and more direct than those attributed to
Petitioner in this case. Wincott claimed personal responsibility and expressed
remorse for personally committing misdeeds in a conversation about the robberies
he was accused of at the time. In contrast, Petitioner did not say that he did anything.
He said “they” did it. Wincott’s statements were held to be insufficient
corroboration, and the court acquitted him. Id.
Petitioner made these points regarding Wincott’s holding to the court of
appeals but the court dispensed with the case, stating that Wincott “held that the non-
accomplice testimony in that case connected the defendant to the accomplice and
other suspects but did not connect him to the offense itself.” Appendix A at 9. The
court did not address whether, in light of Wincott, a jury could have reasonably
determined that Benavidez’s vague testimony amounted to Petitioner taking partial
credit for Garcia’s murder. Nor did the court explain exactly what part of the murder
a jury could have reasonably concluded that Petitioner supposedly took credit for.
The court of appeals erred in failing to be guided by Cruz, and it erred by
dismissing the guidance offered by Wincott as well. 17 D. Conclusion.
Navarrete’s testimony that Petitioner borrowed his green Impala did not tend
to connect Petitioner to Garcia’s murder because there was no non-accomplice
evidence connecting the car to the offense. The court of appeals was able to
conclude otherwise only by misapplying the law. The court also failed to correctly
identify controlling caselaw, and distinguish this case from Hernandez. Review is
warranted to address the court of appeals’ errors.
Respectfully submitted,
/s/Matt Hennessy State Bar No. 00787677 matt @deguerin.com 1018 Preston, 7th Floor Houston, Texas 77002 (713) 223-5959 Telephone (713) 223-9231 Facsimile
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I hereby certify that a true and correct copy of the foregoing has been delivered to the following parties via electronic filing on July 29, 2015:
Kimberly Stelter Assistant District Attorney 1201 Franklin, Suite 600 Houston, Texas 77002
Lisa McMinn State Prosecuting Attorney P O Box 13406 Austin, Texas 78711
/s/Matt Hennessy Matt Hennessy
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