Juan Jose Lopez Jr. v. State

Opinion

FILED IN THE 13TH COURT OF APPEALS CORPUS CHRISTI

06/02/15 __________________________________________________________________ DORIAN E. RAMIREZ, CLERK BY cholloway IN THE COURT OF APPEALS RECEIVED IN THIRTEENTH SUPREME JUDICIAL DISTRICT 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 6/2/2015 3:51:50 PM __________________________________________________________________ DORIAN E. RAMIREZ Clerk COURT OF APPEALS NO. : 13-14-00733-CR

TRIAL COURT CASE NO.: 2013-CRN-001341-D2 __________________________________________________________________

JUAN JOSE LOPEZ, JR. APPELLANT

V.

THE STATE OF TEXAS, APPELLEE __________________________________________________________________

AMENDED BRIEF OF APPELLANT

__________________________________________________________________

/S/. J. EDAURDO PEÑA J. EDUARDO PEÑA 1102 Scott Street Laredo, Texas 78040 (956) 722-9854 (956) 722-9866 (Fax) Bar No. 15737550 ATTORNEY FOR APPELLANT IDENTITY OF THE PARTIES AND COUNSEL

DEFENDANT/APPELLANT:

Juan Jose Lopez, Jr. Webb County Jail Laredo, Texas 78040

Represented by: Attorney J. Eduardo Peña 1102 Scott Street Laredo, Texas 78040 (956) 722-9854 (956) 722-9866 (Fax) State Bar No. 15737550

APPELLEE:

THE STATE OF TEXAS

Represented by: Mr. Isidro R. Alaniz, District Attorney & Mr. David Reuthinger, Assistant District Attorney 49th Judicial District, Webb County, Texas Webb County Justice Center, 4Th Floor Laredo, Texas 78040 (956) 523-4900 (956) 523-5054 (Fax)

ii STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

/S/ J EDAURDO PEÑA J. EDUARDO PEÑA ATTORNEY FOR APPELLANT

iii TABLE OF CONTENTS PAGE

1. IDENTITIES OF THE PARTIES AND COUNSEL.................................... -ii-

2. STATEMENT REGARDING ORAL ARGUMENT.................................. -iii-

3. TABLE OF CONTENTS............................................................................. -iv-

4. INDEX OF AUTHORITIES........................................................................ -v-, vi

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

6. ISSUES PRESENTED FOR REVIEW........................................................ 1-2

ISSUE NO. 1: Whether the evidence is legally sufficient to sustain the convictions for murder, aggravated kidnapping, and engaging in organized criminal activity.

ISSUE NO. 2: Whether the trial court committed reversible error by refusing the defendant’s requested jury instructions which would have included an affirmative submission of the defensive theory of the cause of death of the alleged victim in the jury charge.

ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not have standing to complain of the warrantless search of the home where the police found the body of the alleged victim and in thus denying the appellant’s motion to suppress evidence.

7. SUMMARY OF THE ARGUMENTS...................................................... 2-4

8. STATEMENT OF THE FACTS............................................................... 4-12

9. ARGUMENT AND AUTHORITIES........................................................13-30

10. PRAYER................................................................................................... 31

11. CERTIFICATE OF SERVICE.................................................................. 32

iv INDEX OF AUTHORITIES

CASES PAGES

1. Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)……………….20

2. Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010)……….2, 13, 14, 15, 20

3. Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007)………………..30

4. Druery v. State, 225 S.W.3d 491, 498 (2007)………………....................20

5. Evans v. State, 202 S.W. 3d 158 (Tex. Cr. App. 2006)…………………...20

6. Garcia v. State, 126 S.W.3d 921, 927 & n. 9 (Tex. Crim. App. 2004)……30

7. Granados vs. State , 85 S.W.3d 217 (Tex. Cr. App. 2002)………………..3, 29

8. Hill v. State, 585 S.W.3d 713 (Tex. Cr. App. 1979)………………….25, 26, 27

9. Jackson v. Virgina, …………………………………………………..13

10. Rojas vs. State, 797 S.W.2d 41 (Tex. Cr. App. 1990)………………4, 29

11. Williams v. State, 235 S.W.3d 742, 750 (Tex. Cr. App. 2007)……19, 20, 23,25

12. Wong Sun v. United States, 371 U.S. 471 (1963)…………………30

CONSTITUTION OF THE UNITED STATES

Fourth Amendment ………………………………………….................4, 6, 28, 29

TEXAS RULES OF APPELLANT PROCEDURE

Rule 44.2(a) ………………………………………………………..….30, 31

Rule 44.2(b) ……………………………………………………........30

v TEXAS PENAL CODE

Section 7.02(a)(2) …………………………………………………...2

vi STATEMENT OF CASE

Appellant, Juan Jose Lopez, Jr. (“Lopez”) was indicted on one count of

murder, one count of aggravated kidnapping, and count of engaging in organized

criminal activity, and one count of tampering with evidence in the 111th Judicial

District Court, of Webb County, Texas. (I C.R. 77-79) A supplemental clerk’s

record consists of the defendant’s requested jury instructions. (1 Supp. C.R.) The

case was tried before a jury commencing on October 27, 2014. (1 R.R.4) On October

30, 2014, Lopez was found guilty on Counts I, II, and III, which charged him with

murder, aggravated kidnapping, and engaging in organized criminal activity,

respectively. (1 C.R. 465-467). On October 31, 2014, the jury assessed a sentence of

50 years on the murder charge, 17 years on the aggravated kidnapping charge, and

10 years on the engaging in organized criminal activity charge. (1 C.R. 472-474)

Lopez was sentenced in accordance with the verdict of the jury on October 31, 2014.

(20 R.R. 68-69) Lopez did not file a motion for new trial; on November 19, 2014, he

filed his notice of appeal. (I C.R. 481)

ISSUES PRESENTED FOR REVIEW

ISSUE NO. 1: Whether the evidence is legally sufficient to sustain the convictions

for murder, aggravated kidnapping, and engaging in organized criminal activity.

ISSUE NO. 2: Whether the trial court committed reversible error by refusing the

1 defendant’s requested jury instructions which would have included an affirmative

submission of the defensive theory of the cause of death of the alleged victim in the

jury charge.

ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not

have standing to complain of the warrantless search of the home where the police

found the body of the alleged victim and in thus denying the appellant’s motion to

suppress evidence and allowing the State to introduce illegally obtained evidence.

SUMMARY OF ARGUMENT

ISSUE NO. 1 : Whether the evidence is legally sufficient to sustain the convictions

for murder, aggravated kidnapping, and engaging in organized criminal activity.

Considering all of the evidence in the light most favorable to the verdict, the

jury was not rationally justified in finding guilt beyond a reasonable doubt. Brooks v.

State, 323 S.W.3d 893 (Tex. Cr. App. 2010) Specifically, considering all of the

evidence in the light most favorable to the verdict, the State failed to prove beyond a

reasonable doubt that Appellant caused Vasquez’s death, that Appellant kidnapped

Vasquez, or that he engaged in organized criminal activity. Further, the State did not

present any evidence to show that Appellant acted with intent to promote or assist

the commission of the offenses, or that he solicited, encouraged, directed, aided, or

attempted to aid another person to commit the offenses. See §7.02(a)(2) Tex. Penal

Code. 2 ISSUE NO. 2: Whether the trial court committed reversible error by refusing the

defendant’s requested jury instructions which would have included an affirmative

submission of the defensive theory of the cause of death of the alleged victim in the

jury charge.

Appellant was entitled to an affirmative submission of the defensive theory

regarding the cause of death, and his properly filed requested jury charge and his

objection to the trial court’s refusal of the requested jury charge was sufficient to

preserve the issue for review. The judgment must be reversed because the issue was

raised by the evidence and the trial court erred in refusing the defendant’s requested

charge on the cause of death of the alleged victim.

ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not

have standing to complain of the warrantless search of the home where the police

found the body of the alleged victim and in thus denying the appellant’s motion to

suppress evidence and allowing the State to introduce illegally obtained evidence.

Appellant established that he had a subjective expectation of privacy in a

place which society recognizes as reasonable, namely a home. Therefore, he had a

legitimate expectation of privacy in the home which was invaded by police officers.

See Granados vs. State, 85 S.W.3d 217 (Tex. Cr. App. 2002) Because the police

officers entered the home (where the body of the victim was found) without a

warrant based on an anonymous telephone call in which a woman claimed that 3 someone had been dragged into a house and was being tortured, and the police did

not know whether the caller had personal knowledge of the facts upon which the

police relied, or whether the caller was a credible person, the police lacked probable

cause to justify a warrantless entry into the home. See Rojas vs. State, 797 S.W.2d 41

(Tex. Cr. App. 1990). Since probable cause was lacking, the warrantless entry into

the home violated the Fourth Amendment to the United States Constitution, and

pursuant to the exclusionary rule, the trial court should have excluded all of the fruits

of the warrantless search.

STATEMENT OF FACTS

Ana Vasquez (“Ana”), the wife of Ricardo “Ricky” Vasquez (“Vasquez”), the

victim of the offenses charged in the indictment, testified that she last saw her

husband around 7:30 on the morning of August 29, 2013, when he dropped her off at

the school where she was employed as a teacher. (17 R.R. 27-28, 34) Ana testified

that she was not aware of any problems that existed between her husband and

Appellant, Juan Jose Lopez, Jr., (“Lopez”). (17 R.R. 34)

Officer Gustavo Sotelo (“Sotelo”) testified that on August 29, 2013, around

7:00 p.m., the police received a report of “someone being assaulted” at a house with

a brown fence where it was known that drugs were sold in that neighborhood. (17

R.R. 36-38, 55-56) The caller did not provide an address but gave a description of the

location. (17 R.R. 57) When he arrived at the “house where the witness described 4 the male being assaulted”, he saw a heavy-set male who walked away as soon as he

saw Sotelo. After walking to the rear of the house looking for the heavy-set male and

not finding him, Sotelo returned to the front of the house and opened the screen door.

(17 R.R. 39-40) Sotelo testified that, “At the time the door was opened, and I saw the

deceased on the mattress.” (17 R.R. 40, lines 12-14)

During a voir dire examination by defense counsel, Sotelo testified that at the

time that he entered the home at 2920 Napoleon Street rear he entered without a

warrant, and that the facts known to him at that time were strictly limited to the

information that the Police Department received through the 911 call. (17 R.R.

42-45) When Sotelo entered the home he discovered more evidence which was “in

plain view.” (17 R.R. 44-45) Sotelo further admitted that at the time that the police

entered the home they had no way of determining the credibility of the caller, or the

reliability of the information that was provided to the Police Department by the

anonymous 911 caller. (17 R.R. 45-46) A 2x4 board which became a vital piece of

evidence for the State was also discovered by the police as a result of the warrantless

entry. (17 R.R. 47) The heavy-set male who Sotelo saw when he first arrived at the

scene of the crime was later identified as Raul Alegria, a co-defendant, who was

picked up the following day. (17 R.R. 52)

In his trial testimony, Sotelo claimed that when he knocked on the front door

“the door opened itself, and that’s when [he] observed a body on the mattress.” (17 5 R.R. 44, lines 2-4)

Appellant filed a motion to suppress evidence on the grounds that the police

entered the home where the murder was committed without a warrant, without

consent, and in the absence of exigent circumstances, and therefore in violation of

the Fourth Amendment to the United States Constitution. (1 C.R. 107-111) The trial

court held a hearing on the sole issue of whether Lopez had standing to complain of

the warrantless entry into the premises, and Lopez testified that the owner of the

property at 2920 Napoleon Street Rear was Abel Rocha, Sr. (“Rocha, Sr.”) (a

co-defendant), and that Rocha, Sr. had given him permission to stay there. (13 R.R.

22-24) Lopez testified that he used to stay there with the permission of Rocha, Sr.,

and that he used to sell drugs there. (13 R.R. 26) Rocha, Sr., and the co-defendants

in this case also had access to the house. (13 R.R. 27) Other friends would enter the

house only if Lopez was there, or if Rocha, Sr., gave them permission to go in. (13

R.R. 28) The trial court held that Lopez did not have a reasonable expectation of

privacy for the purposes of having standing to complain of the Fourth Amendment

violation. (13 R.R. 29)

Olga Martinez (“Olga”), the sister of Candelario Hernandez (“Hernandez”), a

co-defendant in the case, testified that on August 29, 2013, she dropped off

Hernandez at the house located at 2920 Napoleon Street, where the crimes in

question occurred, between 12:00 p.m. and 1:00 p.m. (17 R.R. 116-117) Olga was 6 aware Hernandez was a drug user. (17 R.R. 119-120)

Edward Flores, a detective for the Laredo Police Department testified that a

missing persons report was filed on August 8, 2013, regarding an individual named

Abelardo Rocha, III (“Abelardo”), and another individual named Carlos Edmund

Gamboa (“Carlos”). (17 R.R. 206) Abelardo and Carlos were last seen on August 7,

2013, after they were dropped off at the International Bridge and they walked across

the bridge into Mexico to collect some money. (17 R.R. 207, 210)

Raul Alegria (“Alegria”), a co-defendant in this case, told Richard Reyes, Jr.,

a detective, (“Det.. Reyes”), that the motive for the murder was extortion. (17 R.R.

214) According to Alegria, Abel Rocha, Sr. (“Rocha, Sr.”), another co-defendant,

blamed Vasquez for extorting money and a vehicle from the Rocha family to return

or attempt to return Abelardo. (17 R.R. 214-217) Abelardo is the nephew of Rocha,

Sr., who posted bail and absconded, possibly to Mexico. (17 R.R. 214, 217)

Alegria further told Det. Reyes that Rocha, Sr., directed a group of men to

torture and kill Vasquez, and that he “brandished a buck knife and slashed the

victim’s throat and cut off a portion of his ear”. (17 R.R. 215, lines 13-14) Alegria

told Det. Reyes that while Vasquez was being tortured, Rocha, Sr., stated, “This is

probably what they’re doing to my nephew in Mexico, right now.” (17 R.R. 215,

lines 19-20) The State did not present testimony from either Alegria or any other

co-defendant to show that Lopez was among the group of men who Rocha, Sr., 7 directed to torture and kill Vasquez.

According to Det. Reyes, the investigation revealed that there were 6 suspects

in the case besides Alegria: Juan Jose Lopez, Jr., Appellant herein, Roberto Sanchez,

Candelario Hernandez, Abel Rocha, Sr., Abel Rocha, Jr., and Sergio Garcia. (17

R.R. 214) Alegria and the other 6 suspects in the case were all indicted for the

kidnapping and murder of Ricardo Vasquez. (1 C.R. 77-80)

Dr. Ray Fernandez (“Dr. Fernandez”), the Nueces County Medical Examiner

who performed an autopsy on the body of the victim, testified that he found blunt

force trauma, multiple abrasions, lacerations, and contusions on different parts of the

body. (17 R.R. 130, 143) The body also exhibited stab wounds and incise wounds.

(17 R.R. 144) The autopsy further revealed a slash wound around the left side of the

neck, and a slash wound around the right side of the neck, and a slice of the left ear.

(17 R.R. 144) Dr. Fernandez also found hemorrhage under the scalp, indicating that

Vasquez was hit on that area of his body, and a fracture of the skull beneath an injury

to the upper forehead. (17 R.R. 145) These injuries are consistent with blunt force

trauma. (17 R.R. 145) Vasquez also sustained three fractures along the ribcage

consistent with blunt force trauma with blood in the surrounding tissues, which

indicates that “the person is still alive, the heart is still beating, and you fracture the

rib and it causes bleeding around that structure.” (17 R.R. 146, lines 9-12)

In response to a question by defense counsel as to whether “the blunt force 8 injury [would] have caused the death of Ricardo Vasquez independently of the sharp

force injury”, Dr. Fernandez stated: “The blunt force trauma caused bruising on the

brain. It was part of the sharp force trauma. It did not – it didn’t cause a significant

amount of bleeding on the brain. So, probably the blunt force trauma by itself would

not cause the death.” (17 R.R. 154, lines 19-23) According to Dr. Fernandez, the

laceration to Vasquez’s neck, which the State alleged was inflicted by Rocha, Sr.,

“cut through the two major veins there, the jugular veins.” (1 C.R. 78, 79) (17 R.R.

155, lines 6-7; 215)

Detective David Carmona (“Det. Carmona”), testified that the police believed

that the 2x4 “might have been the possible weapon used in the death of the victim”.

(18 R.R. 60-61, 64) Det. Carmona saw the injuries sustained by Vasquez and

testified that Vasquez had “deep lacerations to the neck”, but the police did not

recover the weapon that might have been used to inflict such injuries. (18 R.R.

64-65) Det. Carmona interviewed Lopez on August 30, 2013, and testified that

when he questioned Lopez about Vasquez’s murder Lopez stated that he had heard

what had happened, but denied knowing who the victim was. (18 R.R. 106-107)

Lopez also admitted that he had seen Roberto Sanchez (“Sanchez”), Candelario

Hernandez (“Hernandez”), and Alegria (co-defendants) on the date of the murder, at

the house where the murder occurred, between the hours of 10:00 A.M. and 2:00

P.M. (18 R.R. 108-110) Lopez claimed that he hadn’t seen Vasquez “in a while”. (18 9 R.R. 111)

Det. Carmona further testified that he interviewed Hernandez, and that

Hernandez stated that the victim had gotten loose and he “went after him with a 2x4

and started striking him, and in turn he took the 2x4 away from him and hit him back

in self-defense. (18 R.R. 116-117)

Under cross-examination, Det. Carmona admitted that police officers

discovered the body of the deceased upon opening the door, and also discovered

other items of evidence as a result of a warrantless entry into the home, including the

2x4 board which the State alleged Lopez used to strike Vasquez thus causing his

death. (18 R.R. 119-120) Det. Carmona said that the person who made the

anonymous 911 call that led to the discovery of the victim’s body was afraid of her

identity being disclosed because she feared for her life. (18 R.R. 125)

Kimberly Lander (“Lander”), a forensic scientist with the Bexar County

Criminal Investigation Laboratory, testified that swabs of a blood-stained 2x4 board

recovered from the scene of the crime showed that neither Lopez nor Vasquez could

be excluded as contributors of a DNA sample obtained from the board. (18 R.R.

170-174) Hernandez, also could not be excluded as a donor of a mixture of DNA

recovered from an area of the 2x4 that a person would hold if he swung the board

like a bat. (18 R.R. 169, 172-173, 211) A cutting from Lopez’s t-shirt and a cutting

from his shorts tested positive for the possible presence of blood, and DNA 10 comparison testing showed that Vasquez “was not excluded as a contributor of the

DNA on both the cutting from the orange T-shirt and the cutting from the shorts”.

(18 R.R. 180-183, 190-193) Further, according to Lander, Vasquez was not excluded

as a contributor of DNA from a swab of Lopez’s Nike shoes. (18 R.R. 194-195)

Vasquez could not be excluded as a donor of DNA obtained from a swab of

Sanchez’s Adidas shoes, or from a cutting of the shoe laces of Hernandez’s shoes.

(18 R.R. 184-185, 187-188)

Under cross-examination Lander stated that Lopez’s orange T-shirt had “small

stains” which tested positive for the possible presence of blood (18 R.R. 180-181,

200) Lopez’s shorts also had “blood droplets” and “reddish-brown soiling to the

entrance of the pocket.” (18 R.R. 201) Landers clarified that she did not have the

ability to determine from her examination of the stains on Lopez’s clothes whether

he was a bystander or a participant in the murder. (18 R.R. 202)

Defense counsel asked Lander: “You were talking about the combined

probability index, and you mentioned with regards to swab number 2, from the 2x4

board, if you randomly select 36 people from the population, one of those would

have the same genetic profile as Juan Jose Lopez and could not be excluded as the

source of the DNA in that item, correct?” (18 R.R. 202-203)

Landers responded, “[I]t’s partly correct, but partly incorrect…The CPI, what

that indicates is that there’s a mixture of DNA, not a single source…The CPI 11 number indicates that, were I to have 36 people, and if I were to test all of them, I

would expect, based on the frequency of alleles and the evidence, the DNA markers

observed on the same evidence, not that the same person is the same profile as Juan

Jose Lopez or Ricardo Vasquez or Candelario Hernandez, but their markers are part

of what I’m seeing.” (18 R.R. 203)

Landers agreed that “touch DNA” can be transferred from one item to another

during the process of collecting evidence at the scene of the crime if the correct

procedure is not followed. (18 R.R. 206) Landers could not determine the time when

the DNA was deposited on the 2x4. (18 R.R. 206) Landers agreed that the DNA

sample that she obtained from the 2x4 board was “a mixed sample of DNA [which]

may contain background DNA, crime-related DNA, or after-the-crime

contamination”. (18 R.R. 210)

Tammi Sligh (“Sligh”), a forensic scientist with the Bexar County Crime Lab

testified that she did a comparative analysis of footprint impressions which is a

subdiscipline of tool marks and firearms identification. (19 R.R. 36) Sligh’s opinion

was that a red Nike shoe which was identified as belonging to Lopez made a

footwear impression that was in a photograph of the crime scene. (18 R.R. 32; 19

R.R. 51-52)

Lopez elected not to testify at his trial.

12 ARGUMENT AND AUTHORITIES

ISSUE NO. 1 : Whether the evidence is legally sufficient to sustain the convictions

for murder, aggravated kidnapping, and engaging in organized criminal activity.

In Brooks v. State, 323 S.W.3d 893 (2010), the Court of Criminal Appeals did

away with factual sufficiency review announcing that “the Jackson v. Virgina,

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.” In the instant

case, the State alleged in Count I of the indictment that “Raul Alegria, Abel Rocha

Jr., Juan Jose Lopez Jr., Roberto Sanchez, Jr., Candelario Hernandez Jr., Sergio

Garcia-Garza and Abel Rocha did then and there intentionally cause the death of an

individual, namely Ricardo Vasquez, by striking him with a blunt object causing

blunt trauma to his body, and/or head, and/or face, and/or by causing a laceration

to his neck.” (1 C.R. 77) Count III, which charged all of the defendants with the

offense of engaging in organized criminal activity, alleged as overt acts that: “On or

about August 29, 2013, Juan Jose Lopez struck Ricardo Vasquez at 2920 Napoleon

Street…On or about August 29, 2013, Abel Rocha cut Ricardo Vasquez’s throat and

stabbed Ricardo Vasquez’s throat at 2920 Napoleon Street.”. (1 C.R. 78, 79)

Therefore, the State’s theory of the case was clearly that Abel Rocha intentionally or

knowingly cut and stabbed Vasquez in the throat, and that Lopez intentionally or 13 knowingly struck Vasquez with the 2x4 board, and that the beating with the 2x4

board, and/or the cuts and stab wounds to Vasquez’s neck, caused his death. The

State also alleged in the indictment that “On or about August 13, 2013, Candelario

Hernandez struck Ricardo Vasquez at 2920 Napoleon Street…”. (1 C.R. 78, 79) The

alleged role of each of the other co-defendants in the murder and kidnapping of

Ricardo Vasquez was described in the overt acts of Count III in the indictment. (1

C.R. 78-79) Therefore, under the Brooks standard of legal sufficiency review, the

appellate court must determine “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 (2010). To make this determination, the

reviewing court must inquire whether "[c]onsidering all of the evidence in the light

most favorable to the verdict, was a jury rationally justified in finding guilt beyond a

reasonable doubt." Id. More specifically, the question is whether the evidence is

sufficient to support the implied jury finding that Juan Jose Lopez, Jr., caused the

death of Ricardo Vasquez by striking him with a blunt object as alleged in the

indictment and by the State during the trial. (1 C.R. 77; 17 R.R. 24; 19 R.R. 113) In

the State’s opening statement, the prosecution told the jury: “The evidence will show

you, at the end of it all, that Juan Jose Lopez is guilty beyond a reasonable doubt of

what we’ve read on the indictment.” (17 R.R. 24, lines 3-6) In closing arguments the

State argued: “All of that evidence has to be placed together so that you can make the 14 reasonable inference that Juan Jose Lopez, as a party, struck and murdered Ricardo

Vasquez.” (19 R.R. 113, lines 3-6) The “Charge Of The Court” included an

instruction on “Law Of Parties”, but the State did not present any evidence at all to

show that Lopez either solicited, encouraged, directed, aided, or attempted to aid

another person to commit the offense. (1 C.R. 451) Therefore, to convict Lopez of

murder, the jury had to find beyond a reasonable doubt that Lopez caused the death

of Ricardo Vasquez by striking him with the 2x4 board. (1 C.R. 77; 17 R.R. 24; 19

R.R. 113) To make this determination, the reviewing court must inquire whether

considering all of the evidence in the light most favorable to the verdict, was the jury

rationally justified in finding beyond a reasonable doubt that Lopez caused the death

of Ricardo Vasquez by striking him with a 2x4 board. Brooks v. State, 323 S.W.3d

893 (2010)

The evidence linking Lopez to the murder and kidnapping of Ricardo

Vasquez consisted of:

1. Statements made by Alegria and Garcia to Det. Reyes from which he

concluded that Lopez, along with Roberto Sanchez, Candelario

Hernandez, Abel Rocha, Sr., Abel Rocha, Jr., Raul Alegria, and Sergio

Garcia were suspects in the case. (17 R.R. 213-214)

2. Lander’s expert witness testimony that swabs of a blood-stained 2x4 board

recovered from the scene of the crimes showed that neither Lopez nor 15 Vasquez could be excluded as contributors of a DNA sample. (18 R.R.

170-174)

3. Lander’s expert witness testimony that DNA comparison testing showed

that Vasquez “was not excluded as a contributor of the DNA on both the

cutting from the orange T-shirt and the cutting from the shorts”, or from a

swab of Lopez’s left Nike shoe. (18 R.R. 180-183, 190-195)

4. Sligh’s expert witness’s opinion that a red Nike shoe which was identified

as belonging to Lopez made a footwear impression that was in a

photograph of the crime scene. (18 R.R. 32; 19 R.R. 51-52)

5. Lopez’s statement to police investigators that he had heard what had

happened, but did not know who the victim was. (18 R.R. 106-107)

A review of the evidence, in the light most favorable to the verdict, will show

that the jury was not rationally justified in finding beyond a reasonable doubt that

Lopez caused the death of Ricardo Vasquez, that he participated in the kidnapping

of Vasquez, or that he engaged in organized criminal activity.

Although Det. Reyes testified that he interviewed Alegria and Garcia, and that

the investigation revealed that Lopez and the other co-defendants were suspects in

the case, the State did not present testimony from Alegria, from Garcia, or from any

other co-defendant, to show that Lopez participated in striking Vasquez with the

board. 16 Det. Carmona, testified that he interviewed Hernandez, and that Hernandez

stated that the victim had gotten loose and he “went after him with a 2x4 and started

striking him, and in turn he took the 2x4 away from him and hit him back in

self-defense.” (18 R.R. 116-117) Thus, the State’s own evidence showed that a

co-defendant confessed to striking Vasquez with the 2x4 board which the State

alleged was one of the murder weapons used to kill Vasquez. (18 R.R. 60-61, 64,

116-177) If there was no evidence that another individual struck Vasquez with the

board, certainly it would be more logical to infer that Lopez struck Vasquez with the

board, based on Lander’s testimony that Lopez could not be excluded as being a

donor of the mixture of DNA obtained from the board. But this is not a case where

there is no other suspect who could have committed the crime that the defendant is

charged with; there were six other co-defendants in the case, and one who actually

confessed to having struck the victim with the 2x4 board in question. (18 R.R. 60-61,

64, 116-177)

The testimony from the State’s expert witness, Kimberly Lander (“Lander”),

a forensic scientist with the Bexar County Criminal Investigation Laboratory, was

that swabs of the blood-stained 2x4 board recovered from the scene of the crime

showed that neither Lopez nor Vasquez could be excluded as contributors of a DNA

sample obtained from the 2x4 board. (18 R.R. 170-174) But consistent with his own

admission that he struck Vasquez with the 2x4 board, Hernandez, also could not be 17 excluded as a donor of a mixture of DNA recovered from an area of the 2x4 that a

person would hold if he swung the board like a bat. (18 R.R. 169, 172-173, 211)

Under cross-examination, Lander clarified that she did not mean that the DNA

sample which was obtained from a swab of the 2x4 board matched the genetic

profile of Lopez, but rather that the “mixture of DNA” contained genetic markers

which matched Lopez’s genetic markers, and which would match the genetic

markers of 1 out of every 36 people randomly selected from the population. (18 R.R.

202-203)

Lander also agreed that “touch DNA” can be transferred from one item to

another during the process of collecting evidence at the scene of the crime if the

correct procedure is not followed. (18 R.R. 206)

Further, Lander could not determine the time when the DNA was deposited

on the 2x4. (18 R.R. 206)

Lander also agreed that the DNA sample that was obtained from the 2x4

board was “a mixed sample of DNA [which] may contain background DNA,

crime-related DNA, or after-the-crime contamination”. (18 R.R. 210) Thus, the

DNA evidence presented by the State is inconclusive with regard to whether Lopez

directly deposited his touch DNA on the 2x4 board during the commission of the

crime, before the commission of the crime, or after the commission of the crime.

Lander’s testimony that Lopez’s touch DNA could also have been transferred 18 from another object to the 2x4 board rendered such forensic evidence even more

inconclusive with regard to the question of whether Lopez actually handled the 2x4

board, especially considering the testimony of Officer J. R. Cantu, a crime scene

investigator who collected evidence at the scene of the crime, who testified that it’s

important to change gloves often to prevent DNA from being transferred from one

object to another while collecting evidence, but that he did not recall how often he or

the other officer who collected evidence at the scene of the crime changed gloves to

avoid contamination. (17 R.R. 112-113; 18 R.R. 206, 210)

The small reddish-brown stains on Lopez’s T-shirt, shorts, and left Nike shoe

which tested positive for the presence of blood, and which yielded DNA samples

from which Vasquez could not be excluded as a contributor, together with the

footwear impression testimony, shows only that Lopez was present during, or

shortly after, the commission of the crimes, but does not support the conclusion that

he struck Vasquez with the 2x4 board. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Cr. App. 2007) In fact, Lopez’s presence during, or shortly after, the commission

of the murder is practically indisputable in light of Lander’s testimony that DNA

comparison testing showed that Vasquez could not be excluded as the contributor of

the DNA obtained from the small blood stains on Lopez’s T-shirt, shorts, and Nike

shoes, and in light of Sligh’s testimony that a red Nike shoe which was identified as

belonging to Lopez made a footwear impression that was in a photograph of the 19 crime scene. (18 R.R. 32, 180-183, 190-193; 19 R.R. 51-52) But, mere presence at

the scene of a crime is not sufficient to render a person an accomplice. Druery v.

State, 225 S.W.3d 491, 498 (2007)

As the Court noted in Evans v. State, 202 S.W. 3d 158 (Tex. Cr. App. 2006),

“where there are two permissible views of the evidence, the fact finder’s choice

between them cannot be clearly erroneous. (quoting from Anderson v. City of

Bessemer, 470 U.S. 564, 574 (1985). Appellant acknowledges that in reviewing

the legal sufficiency of the evidence, an appellate court must not re-evaluate the

weight or credibility of the evidence on the record, or substitute the court’s judgment

for that of the jury. Williams v. State, 235 S.W.3d 742, 750 (Tex. Cr. App. 2007) On

the other hand, however, the appellate courts must ensure that the evidence supports

a conclusion that the defendant committed the crime charged in the indictment. Id.

The problem here is that the circumstantial evidence presented by the State does not

support the conclusion that Lopez struck Vasquez with the 2x4 board, especially in

light of Hernandez’s confession that he struck Vasquez with the 2x4 board, and in

light of Lander’s testimony that DNA testing showed that Hernandez could not be

excluded as a contributor of the DNA sample obtained from the board. (18 R.R.

116-117, 169, 172-173, 211); Brooks v. State, 323 S.W.3d 893 (2010) (18 R.R.

202-203)

But more importantly, Lander testified that the DNA obtained from the 2x4 20 board was a mixed sample and that 1 out of every 36 people randomly selected from

the population, if tested, would have the same genetic markers that she found in the

mixed DNA sample. (18 R.R. 202-203) The statistical number, Lander explained, is

for the purpose of giving the trier-of-fact information that allows them “to assess

how much weight should be given to the evidence.” (18 R.R. 189) On a

“single-source profile” the forensic scientist assigns a statistical number referred to

as “the random match probability” which reflects the probability of finding a certain

DNA profile in a random population of unrelated individuals. (18 R.R. 190) As

Lander explained, the forensic scientist is looking for a genetic profile “that is very

rare, and that’s so that it allows us to say that you wouldn’t expect many people in

the population to have this profile.” (18 R.R. 190) Where there is a mixture of DNA,

as on the 2x4 board, the forensic scientist is unable to distinguish one contributor

from another, and uses a statistical number called “the combined probability of

inclusion” to measure “how many people in the population, at random if chosen,

would also not be excluded from the mixture of DNA profiles.” (18 R.R. 190) For

the blood stains found on Lopez’s T-shirt for example, Lander testified that Vasquez

was not excluded as a donor of DNA and that the combined probability of inclusion

was “once in every 599 billion 900 million individuals.” Thus, based on Lander’s

explanation of the purpose of assigning a statistical number to the results of DNA

comparison testing, it would be extremely unlikely that the DNA did not belong to 21 Vasquez, and this evidence was entitled to great weight. (18 R.R. 189-190) With

regard to the DNA comparison testing of Lopez’s shorts and left Nike shoe, which

did not exclude Vasquez as a contributor, the random match probability was “one in

every one quadrillion 219 trillion people.” (18 R.R. 194)

However, the combined probability of inclusion for the results of DNA testing

on the 2x4 board, from which Lopez could not be excluded as a donor, was only 1 in

36. (18 R.R.191-192, 202-203) Applying Lander’s explanation of the purpose of

assigning a statistical number to the results of DNA comparison testing, this

evidence should have been afforded little to no weight. (18 R.R. 189-190,202-203)

In fact, under re-direct examination Lander responded to a question regarding the

statistic of “1 out of 36” as follows: “So, the statistic is, you know, not very strong in

comparison to the other stats.” (18 R.R. 212-213, lines 5-6) This low statistical value

(1 out of 36) is of vital importance in reviewing the legal sufficiency of the evidence,

because the expert witness testimony to the effect that Lopez could not be excluded

as a donor of a sample of DNA obtained from one of the two alleged murder

weapons, the 2x4 board, was the single piece of evidence from which the jury could

conceivably make a rational finding that Lopez caused the death of Ricardo Vasquez

by striking him with a blunt instrument as alleged in the indictment. (1 C.R. 77-79)

(18 R.R. 170-174) The remainder of the evidence does nothing more than to show

Lopez’s presence at the scene of the crime. (17 R.R. 213-214; 18 R.R. 32, 180-183, 22 190-195; 19 R.R. 51-52)

The difference between a combined probability of inclusion of “once in every

599 billion 900 million individuals” and the combined probability of inclusion of 1

in 36 is so vast as to render the latter testimony as having little or no weight at all. (18

R.R. 189-190, 194-195, 202-203) The disparity in the weight to be given the

evidence by the jury is even greater if we compare the random match probability of

exclusion of “one in every one quadrillion 219 trillion people” to the combined

probability of inclusion of 1in 36. (18 R.R. 194)

One can only conclude that in making an implied finding that Lopez caused

the death of Ricardo Vasquez by striking him with a 2x4 board, the jury either did

not understand Lander’s testimony, or completely ignored it in rendering their

verdict of guilty. Considering such a huge disparity in the weight of the evidence

assigned by the State’s expert witness to the DNA comparison testing of Lopez’s

T-shirt, his shorts, and his left Nike shoe, on the one hand, and the weight of the

evidence assigned by the State’s expert witness to the DNA comparison testing of

the sample obtained from the 2x4 board, on the other hand, it cannot be said that any

rational fact-finder could have found beyond a reasonable doubt that Lopez caused

the death of Vasquez by striking him with a blunt instrument. Williams v. State, 235

S.W.3d 742, 750 (Tex. Cr. App. 2007)

From the dubious conclusion that it was indeed Lopez’s DNA on the 2x4 23 board, the jury had to make another big leap in logic to reach the conclusion that

Lopez struck Vasquez with the 2x4 board as alleged by the State. (1 C.R. 78)

Assuming arguendo that the State proved beyond a reasonable doubt that Lopez’s

DNA was on the 2x4 board, in the context of all of the evidence presented by the

State, it is more probable that Lopez did not strike Vasquez with the board. The

evidence showed that Abel Rocha, Sr., had a motive to kidnap and murder Vasquez,

but there was absolutely no evidence that Lopez had a motive to beat or kill

Vasquez. (17 R.R. 206-217) The evidence further showed that Hernandez confessed

to striking Vasquez with the 2x4 board to Det. Carmona and did not claim that Lopez

also struck him. (18 R.R. 116-117) The blood stains on Lopez’s T-shirt and shorts

were described by Lander as “small reddish-brown stains”, and she was unable to

say whether Lopez was a participant or a bystander. (18 R.R. 200-202)

Then, having reached the irrational conclusion that Lopez beat Vasquez with

the 2x4 board (based on the low probability that Lopez’s DNA was on the 2x4 board

and on the assumption that his DNA was directly deposited by Lopez on the board

during the commission of the crimes, rather than before or after) the jury had to

make another inference which is contrary to the evidence: that Lopez caused the

death of Vasquez by striking him with the board. (17 R.R. 154, lines 19-23) This

implied finding of fact by the jury disregards Dr. Fernandez’s testimony that

“probably the blunt force trauma by itself would not cause the death”, and that the 24 laceration to Vasquez’s neck, which the State alleged was inflicted by Rocha, Sr.,

“cut through the two major veins there, the jugular veins.” (1 C.R. 78, 79) (17 R.R.

154, lines 19-23, 155, lines 6-7; 215) Although an appellate court must not

re-evaluate the weight or credibility of the evidence on the record, or substitute the

court’s judgment for that of the jury, an appellate court must ensure that the evidence

supports a conclusion that the defendant committed the crimes charged in the

indictment. Williams v. State, 235 S.W.3d 742, 750 (Tex. Cr. App. 2007) In the

instant case, looking at all of the evidence presented as a whole, it cannot be said that

the evidence supports the conclusion that Juan Jose Lopez, Jr., caused the death of

Ricardo Vasquez, by striking him with a blunt instrument. Id.

ISSUE NO. 2: Whether the trial court committed reversible error by refusing the

defendant’s requested jury instructions which would have included an affirmative

submission of the defensive theory of the cause of death of the alleged victim in

the jury charge.

In a criminal trial, a defendant is entitled to an affirmative submission of

every defensive theory raised by the evidence, and this rule applies equally to

defensive theories regarding the cause of death in murder trials. Hill v. State, 585

S.W.3d 713 (Tex. Cr. App. 1979) The evidence in this case clearly raised the

defensive issue that Vasquez’s death resulted from a cause other than that alleged

against Lopez in the indictment. Specifically, Dr. Fernandez testified that: “The 25 blunt force trauma caused bruising on the brain. It was part of the sharp force

trauma. It did not – it didn’t cause a significant amount of bleeding on the brain. So,

probably the blunt force trauma by itself would not cause the death.” (17 R.R. 154,

lines 19-23) This testimony of the medical examiner was in response to a question

by defense counsel as to whether “the blunt force injury [would] have caused the

death of Ricardo Vasquez independently of the sharp force injury”. (17 R.R. 154)

According to Dr. Fernandez, the laceration to Vasquez’s neck, which the State

alleged was inflicted by Rocha, Sr., “cut through the two major veins there, the

jugular veins.” (1 C.R. 78, 79) (17 R.R. 155, lines 6-7; 215) Counsel for Lopez also

argued in closing that the evidence showed that the cause of death was the deep

laceration to Vasquez’s neck which was inflicted by Abel Rocha, Sr. (19 R.R.

129-132)

Further, Lopez timely presented his request for a charge on the issue of

cause of death, and his request was refused and denied by the trial court. (1 Supp.

C.R. 93-97)(19 R.R. 17-19) Lopez objected to the trial court’s denial of his request

for an instruction on cause of death. (19 R.R. 19-20) Thus the issue was properly

preserved for appellate review. Hill v. State, 585 S.W.3d 713 (Tex. Cr. App. 1979)

In Hill, supra, the Court stated that “appellant would have been entitled to

even more specificity in the defensive charge, in that the law should have been

26 applied to the facts of the case as raised by the defensive evidence on the cause of

death.” Hill v. State, 585 S.W.3d 713 (Tex. Cr. App. 1979) In the instant case,

Appellant’s requested jury instruction on cause of death provided in pertinent part:

“Therefore, if you find from the evidence, that Abel Rocha caused the death of

Ricardo Vasquez by causing a deep laceration to his neck with a sharp instrument,

you shall acquit Juan Jose Lopez, Jr., of the charge of murder as alleged in Count I of

the indictment.” (1 Supp. C.R. 96-97)

Lopez was entitled to an affirmative submission of the defensive theory

regarding the cause of death, and his timely filed requested jury charge was

sufficient to preserve the issue for review. The trial court erred in refusing Lopez’s

requested charge on cause of death and accordingly the judgment must be reversed

and remanded for a new trial with appropriate instructions to the trial court. Hill v.

State, 585 S.W.3d 713 (Tex. Cr. App. 1979)

ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not

have standing to complain of the warrantless search of the home where the police

found the body of the alleged victim and in thus denying the appellant’s motion to

suppress evidence and allowing the State to introduce illegally obtained evidence.

Appellant filed a motion to suppress evidence on the grounds that the police

entered the home where the murder was committed without a warrant, without

consent, and in the absence of exigent circumstances, and therefore in violation of 27 the Fourth Amendment to the United States Constitution. (1 C.R. 107-11) The trial

court held a hearing on the sole issue of whether Lopez had standing to complain of

the warrantless entry into the premises, and Lopez testified that the owner of the

property at 2920 Napoleon Street Rear was Abel Rocha, Sr. (“Rocha, Sr.”) (a

co-defendant), and that Rocha had given him permission to stay there. (13 R.R.

22-24) Lopez testified that he used to stay there with the permission of Rocha, Sr.,

and that he used to sell drugs there. (13 R.R. 26) Rocha, Sr., and the co-defendants

in this case also had access to the house. (13 R.R. 27) Other friends would enter the

house only if Lopez was there, or if Rocha, Sr., gave them permission to go in. (13

R.R. 28) The trial court held that Lopez did not have a reasonable expectation of

privacy for the purposes of having standing to complain of the Fourth Amendment

violation. (13 R.R. 29)

Lopez also filed “Defendant’s Offer Of Proof On Motion To Suppress

Evidence”, since the trial court limited the hearing on the motion to suppress to

testimony regarding the issue of whether Lopez had standing to complain of the

alleged Fourth Amendment violation. (1 C.R. 332-337) The Court admitted the

Defendant’s offer of proof with the pertinent parts of the “Complaint” for a warrant

that was sworn to by Det. Carmona. ( 14 R.R. 7-13) The sworn complaint states that

on August 29, 2013, an emergency call was made by an anonymous caller who

claimed that “a male subject was being tortured and dragged inside a small wooden 28 house with a wooden fence … by the 1300 Block of S. Canada next to an abandoned

demolished home”, where drugs were sold and where police had conducted raids in

the past. (1 C.R. 335) Det. Carmona’s sworn complaint continued stating, “Given the

details provided by the caller and the urgent nature of the call, Officer Sotelo with

the assistance from Officer Jose M. Ugarte and Officer Agapito Perez made their

way into the residence with the wooden fence, upon which they observed a male

subject bound and gagged possibly deceased.” (1 C.R. 335-336)

Appellant’s testimony was not contradicted or impeached, and therefore he

established that he had a subjective expectation of privacy in a place which society

recognizes as reasonable, namely a home. (13 R.R. 13-29) Accordingly, Lopez had

a legitimate expectation of privacy in the home which was invaded by police

officers. See Granados vs. State, 85 S.W.3d 217 (Tex. Cr. App. 2002) Because the

police officers entered the home (where the body of the victim was found) without a

warrant based on an anonymous telephone call in which a woman claimed that

someone had been dragged into a house and was being tortured, and the police did

not know whether the caller had personal knowledge of the facts upon which the

police relied, or whether the caller was a credible person, the police lacked probable

cause to justify a warrantless entry into the home. See Rojas vs. State, 797 S.W.2d 41

(Tex. Cr. App. 1990). Since probable cause was lacking, the warrantless entry into

the home violated the Fourth Amendment to the United States Constitution, and 29 pursuant to the exclusionary rule, the trial court should have excluded all of the fruits

of the warrantless search. Wong Sun v. United States, 371 U.S. 471 (1963)

Pursuant to Rule 44.2(a), Tex. R. App. P., “if the appellate record in a criminal

case reveals constitutional error that is subject to harmless error review, the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” Error that does not constitute constitutional error is

reviewed under Rule 44.2(b), which provides that: “Any other error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded.”

Under Rule 44.2(b), an appellate court may not reverse for non-constitutional error

if, after examining the record as a whole, the court has a fair assurance that the error

did not have a substantial and injurious effect or influence in determining the jury’s

verdict. Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007), citing Garcia v.

State, 126 S.W.3d 921, 927 & n. 9 (Tex. Crim. App. 2004)

After examining the record as a whole, the court cannot have fair assurance

that the error did not have a substantial and injurious effect or influence in

determining the jury’s verdict. Casey v. State, 215 S.W.3d 870 (Tex. Crim. App.

2007), citing Garcia v. State, 126 S.W.3d 921, 927 & n. 9 (Tex. Crim. App. 2004)

Therefore, pursuant to Rule 42.2(a), Tex. R. App. P., the conviction and the sentence

must be reversed. 30 PRAYER

Wherefore, Appellant prays that the judgment of conviction and sentences

imposed by the trial court be reversed and that a judgment of acquittal be rendered,

or in the alternative, that the cause be remanded for a new trial.

Respectfully submitted

/S/ J. EDUARDO PEÑA J. EDUARDO PEÑA 1102 Scott Street Laredo, Texas 78040 (956) 722-9854 (956) 722-9866 (Fax) jpena84@att.net Bar No. 15737550 ATTORNEY FOR APPELLANT

31 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Appellant's Amended Brief was served on Mr. Isidro R. Alaniz, District Attorney, 49th Judicial District, Webb County, Texas, via the electronic filing system at iralaniz@webbcountytx.gov, and on Mr. David Reuthinger, at dreuthinger@webbcountytx.gov, Assistant District Attorney, on the 2nd day of June, 2015.

/S/ J. EDUARDO PEÑA

J. EDUARDO PEÑA Attorney for Appellant

32 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned attorney for Appellant, certifies this

computer-generated appellant’s brief contains 8,449 words and that it complies with the word

limits of Tex. R. App. P. 9.4(i)(2)(B).

1. Exclusive of the portions excluded by Tex. R. App. P. 9.4(i)(1), the Amended Appellant’s Brief

contains 8,449 words.

/S/ J. EDUARDO PEÑA J. EDUARDO PEÑA ATTORNEY FOR APPELLANT