January 22, 2015
CAUSE NO. PD-1661-14
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS
MARCO POLO MEDINA-GONZALEZ, APPELLANT
V.
STATE OF TEXAS, APPELLEE
PETITION FOR DISCRETIONARY REVIEW FROM THE 54th JUDICIAL DISTRICT COURT MCLENNAN COUNTY, TEXAS TRIAL COURT CASE NUMBER 2012-2077-D2 HON. MATT JOHNSON, JUDGE PRESIDING
AND IN THE TENTH COURT OF APPEALS FOR THE STATE OF TEXAS APPELLATE CAUSE NUMBER 10-13-394-CR
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
DENTON “Denny” B. LESSMAN TX BAR NO. 24042474 100 N. 6TH STREET, STE. 702 WACO, TX, 76701 TELEPHONE: (254)776-4544 FACSIMILE: (254)776-4551 EMAIL DLESSMANATTY@AOL.COM ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
MARCO POLO MEDINA-GONZALEZ APPELLANT
STATE OF TEXAS APPELLEE
DENTON B. LESSMAN APPELLATE & TRIAL ATTORNEY 100 N. 6TH STREET, FOR APPELLANT STE. 702 WACO, TEXAS 76701
ABELINO REYNA APPELLATE & TRIAL ATTORNEY 501 WASHINGTON AVE. FOR APPELLEE / CRIMINAL WACO, TEXAS 76701 DISTRICT ATTORNEY FOR MCLENNAN COUNTY, TEXAS
TABLE OF CONTENTS
Contents
IDENTITY OF PARTIES AND COUNSEL ....................... 2
TABLE OF CONTENTS ..................................... 2
TABLE OF AUTHORITIES .................................. 3
STATEMENT REGARDING ORAL ARGUMENT ..................... 3
STATEMENT OF THE CASE ................................. 3
QUESTION PRESENTED FOR REVIEW ......................... 5
REASONS FOR GRANTING REVIEW ........................... 5
ARGUMENT .............................................. 5
PRAYER ................................................ 9
2 CERTIFICATE OF COMPLIANCE ............................ 10
TABLE OF AUTHORITIES
Cases
Apodaca v. State, 589 S.W.2d 696 (Tex. Crim. App. 1979) ..................................................... 6 Dodd v. State, 2004 WL 1311220 at 3 (Tex. App.— Texarkana 2004, no pet.)............................. 8 Jaycon v. State, 651 S.W.2d 803 (Tex. Crim. App. 1983, en banc.)......................................... 5, 6 Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)................................................ 6 STATEMENT REGARDING ORAL ARGUMENT
The Appellant, Marco Polo Medina-Gonzalez,
respectfully requests the opportunity to present oral
argument on this case and believes that oral argument
will assist the Court in evaluating the merits of his
issue.
STATEMENT OF THE CASE
This case is an appeal from a jury trial in
the 54TH District Court of McLennan County. The
Appellant, Marco Polo Medina-Gonzalez (herein
3 “Medina”), was indicted for Aggravated Kidnapping,
Ct. 1; Aggravated Robbery, Ct. 2; and Evading
Arrest or Detention with Motor Vehicle, Ct. 3,
on October 31, 2012. (C.R. I-5) A jury trial was
conducted on October 28, 2013 through October 30, 2013.
Medina entered a plea of “guilty” to count 3 and
the jury returned a verdict of guilty on counts 1 &
2. The jury assessed punishment at 80 years on
counts 1 & 2 and 10 years on count 3.
One issue was presented on appeal to the Honorable
Tenth Court of Appeals and the Intermediate Court
overruled said issue and affirmed Medina’s conviction.
Medina now seeks review of the Intermediate
Appellate Court’s overruling of his presented issue.
STATEMENT OF PROCEDURAL HISTORY
The Tenth Court of Appeals issued its opinion on
November 20, 2014 and an extension was granted by this
Honorable Court until January 21, 2015 for Medina to
file this petition. No motion for rehearing was filed.
4 QUESTION PRESENTED FOR REVIEW
The Tenth Court of Appeals erred in holding that
the jury charge application paragraph correctly charged
Medina both as a party and primary actor.
REASONS FOR GRANTING REVIEW
Medina argues the Tenth Court of Appeals decided an
important question of law in a way that conflicts with
the applicable decisions from this Honorable Court and
that this case presents a unique opportunity for this
Honorable Court to consider an important question of
state law.
ARGUMENT
The Intermediate Appellate Court has incorrectly
overruled Medina’s issue that the Trial Court erred by
charging him both as a primary actor and party when the
evidence only supported charging Medina as a party.
Medina primarily relied upon this Honorable Court’s
holding in Jaycon v. State, 651 S.W.2d 803 (Tex. Crim.
App. 1983, en banc.) to support his issue. In Jaycon,
this Court gave an in depth discussion regarding the
5 requirements of charging the law of parties to the
facts of the case. If the evidence that another did the
act charged and the defendant’s culpability depends
upon proof of one of the four theories of parties’
culpability set for the in Penal Code Section 7.02, the
jury should not be permitted to consider whether the
defendant is guilty as a principle actor. Jaycon at 807
discussing Apodaca v. State, 589 S.W.2d 696 (Tex. Crim.
App. 1979).
The Intermediate Court held that Jaycon does not
apply to this case because Jaycon was only charged as a
primary actor to the offense and Medina was charged
both as a primary actor and as a party.
Medina asserts that the Intermediate Court clearly
erred in its holding.
In a trial, the guilty finding must be based upon
the evidence admitted in the case and reasonable
inferences therefrom. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
6 The Intermediate Court found that there was some
evidence that Medina was a primary actor: Specifically,
it stated:
1. “Valdez testified that he thought the assailant
with the rifle was Medina. That particular
assailant held Valdez at gun point and forced him
out of his car and then beat Valdez when he was
told to open the safe and replied that he did not
know the combination.”
2. “Medina had been an assistant manager and knew
where the alarm was and where the cash office
was.”
3. “When Medina was apprehended later, although he
was not dressed in camouflage, he had numbers
consistent with a combination in his wallet.”
The three findings of the Intermediate Court are
clearly and completely contrary to the evidence
admitted at trial and are not a reasonable inference
therefrom.
7 Specifically, it was conclusively established at
trial that Medina was the driver of the getaway vehicle
and was not one of the actors in camouflage that
engaged with Valdez in the aggravated kidnapping or
went into the grocery store where the aggravated
robbery occurred. Exhibit #21(the police in car video)
and the testimony of Officer Malone clearly establish
this fact. (R.R. vol. 3, pgs. 71, 73-79).
Therefore, the speculation of Valdez in finding 1
above was completely refuted by this evidence and
findings 2 and 3 above completely fail to establish the
required elements of aggravated kidnapping or
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January 22, 2015
CAUSE NO. PD-1661-14
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS
MARCO POLO MEDINA-GONZALEZ, APPELLANT
V.
STATE OF TEXAS, APPELLEE
PETITION FOR DISCRETIONARY REVIEW FROM THE 54th JUDICIAL DISTRICT COURT MCLENNAN COUNTY, TEXAS TRIAL COURT CASE NUMBER 2012-2077-D2 HON. MATT JOHNSON, JUDGE PRESIDING
AND IN THE TENTH COURT OF APPEALS FOR THE STATE OF TEXAS APPELLATE CAUSE NUMBER 10-13-394-CR
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
DENTON “Denny” B. LESSMAN TX BAR NO. 24042474 100 N. 6TH STREET, STE. 702 WACO, TX, 76701 TELEPHONE: (254)776-4544 FACSIMILE: (254)776-4551 EMAIL DLESSMANATTY@AOL.COM ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
MARCO POLO MEDINA-GONZALEZ APPELLANT
STATE OF TEXAS APPELLEE
DENTON B. LESSMAN APPELLATE & TRIAL ATTORNEY 100 N. 6TH STREET, FOR APPELLANT STE. 702 WACO, TEXAS 76701
ABELINO REYNA APPELLATE & TRIAL ATTORNEY 501 WASHINGTON AVE. FOR APPELLEE / CRIMINAL WACO, TEXAS 76701 DISTRICT ATTORNEY FOR MCLENNAN COUNTY, TEXAS
TABLE OF CONTENTS
Contents
IDENTITY OF PARTIES AND COUNSEL ....................... 2
TABLE OF CONTENTS ..................................... 2
TABLE OF AUTHORITIES .................................. 3
STATEMENT REGARDING ORAL ARGUMENT ..................... 3
STATEMENT OF THE CASE ................................. 3
QUESTION PRESENTED FOR REVIEW ......................... 5
REASONS FOR GRANTING REVIEW ........................... 5
ARGUMENT .............................................. 5
PRAYER ................................................ 9
2 CERTIFICATE OF COMPLIANCE ............................ 10
TABLE OF AUTHORITIES
Cases
Apodaca v. State, 589 S.W.2d 696 (Tex. Crim. App. 1979) ..................................................... 6 Dodd v. State, 2004 WL 1311220 at 3 (Tex. App.— Texarkana 2004, no pet.)............................. 8 Jaycon v. State, 651 S.W.2d 803 (Tex. Crim. App. 1983, en banc.)......................................... 5, 6 Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)................................................ 6 STATEMENT REGARDING ORAL ARGUMENT
The Appellant, Marco Polo Medina-Gonzalez,
respectfully requests the opportunity to present oral
argument on this case and believes that oral argument
will assist the Court in evaluating the merits of his
issue.
STATEMENT OF THE CASE
This case is an appeal from a jury trial in
the 54TH District Court of McLennan County. The
Appellant, Marco Polo Medina-Gonzalez (herein
3 “Medina”), was indicted for Aggravated Kidnapping,
Ct. 1; Aggravated Robbery, Ct. 2; and Evading
Arrest or Detention with Motor Vehicle, Ct. 3,
on October 31, 2012. (C.R. I-5) A jury trial was
conducted on October 28, 2013 through October 30, 2013.
Medina entered a plea of “guilty” to count 3 and
the jury returned a verdict of guilty on counts 1 &
2. The jury assessed punishment at 80 years on
counts 1 & 2 and 10 years on count 3.
One issue was presented on appeal to the Honorable
Tenth Court of Appeals and the Intermediate Court
overruled said issue and affirmed Medina’s conviction.
Medina now seeks review of the Intermediate
Appellate Court’s overruling of his presented issue.
STATEMENT OF PROCEDURAL HISTORY
The Tenth Court of Appeals issued its opinion on
November 20, 2014 and an extension was granted by this
Honorable Court until January 21, 2015 for Medina to
file this petition. No motion for rehearing was filed.
4 QUESTION PRESENTED FOR REVIEW
The Tenth Court of Appeals erred in holding that
the jury charge application paragraph correctly charged
Medina both as a party and primary actor.
REASONS FOR GRANTING REVIEW
Medina argues the Tenth Court of Appeals decided an
important question of law in a way that conflicts with
the applicable decisions from this Honorable Court and
that this case presents a unique opportunity for this
Honorable Court to consider an important question of
state law.
ARGUMENT
The Intermediate Appellate Court has incorrectly
overruled Medina’s issue that the Trial Court erred by
charging him both as a primary actor and party when the
evidence only supported charging Medina as a party.
Medina primarily relied upon this Honorable Court’s
holding in Jaycon v. State, 651 S.W.2d 803 (Tex. Crim.
App. 1983, en banc.) to support his issue. In Jaycon,
this Court gave an in depth discussion regarding the
5 requirements of charging the law of parties to the
facts of the case. If the evidence that another did the
act charged and the defendant’s culpability depends
upon proof of one of the four theories of parties’
culpability set for the in Penal Code Section 7.02, the
jury should not be permitted to consider whether the
defendant is guilty as a principle actor. Jaycon at 807
discussing Apodaca v. State, 589 S.W.2d 696 (Tex. Crim.
App. 1979).
The Intermediate Court held that Jaycon does not
apply to this case because Jaycon was only charged as a
primary actor to the offense and Medina was charged
both as a primary actor and as a party.
Medina asserts that the Intermediate Court clearly
erred in its holding.
In a trial, the guilty finding must be based upon
the evidence admitted in the case and reasonable
inferences therefrom. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
6 The Intermediate Court found that there was some
evidence that Medina was a primary actor: Specifically,
it stated:
1. “Valdez testified that he thought the assailant
with the rifle was Medina. That particular
assailant held Valdez at gun point and forced him
out of his car and then beat Valdez when he was
told to open the safe and replied that he did not
know the combination.”
2. “Medina had been an assistant manager and knew
where the alarm was and where the cash office
was.”
3. “When Medina was apprehended later, although he
was not dressed in camouflage, he had numbers
consistent with a combination in his wallet.”
The three findings of the Intermediate Court are
clearly and completely contrary to the evidence
admitted at trial and are not a reasonable inference
therefrom.
7 Specifically, it was conclusively established at
trial that Medina was the driver of the getaway vehicle
and was not one of the actors in camouflage that
engaged with Valdez in the aggravated kidnapping or
went into the grocery store where the aggravated
robbery occurred. Exhibit #21(the police in car video)
and the testimony of Officer Malone clearly establish
this fact. (R.R. vol. 3, pgs. 71, 73-79).
Therefore, the speculation of Valdez in finding 1
above was completely refuted by this evidence and
findings 2 and 3 above completely fail to establish the
required elements of aggravated kidnapping or
aggravated robbery. To establish Medina’s guilt the
State must clearly rely upon the acts of other
individuals.
In contrast, Texas courts have held that a getaway
driver can be responsible as a party. [See Dodd v.
State, 2004 WL 1311220 at 3 (Tex. App.—Texarkana 2004,
no pet.) for an excellent discussion on this point.]
8 The holding of the Intermediate Court of Appeals
establishes a dangerous precedent that is contrary to
the law pronounced by this Court and has resulted in a
miscarriage of justice in this case and will continue
to do so into the future.
PRAYER
WHERFORE PREMISES CONSIDERED Medina prays that this
Honorable Court will grant this petition and allow the
issue to be completely presented to the Court. Medina
further prays that after said presentation that the
Court will sustain the issue raised herein, reverse the
Judgment of the Honorable Tenth Court of Appeals and
remand this case to the Trial Court for a new trial.
Respectfully Submitted,
Law Office of Denton B. Lessman 100 N. 6th Street, Ste. 702 Waco, Texas 76701 Tel: (254) 776-4544 Fax: (254) 776-4551 Digitally signed by Denton B. Lessman DN: cn=Denton B. Lessman, o=Law Office of Denton B. Lessman, ou, email=DLessmanAtty@aol.com, c=US By: Date: 2015.01.16 14:34:07 -06'00'
Denton B. Lessman
9 TX Bar No. 24042474 Attorney for Medina
CERTICATE OF SERVICE
I hereby certify that a copy of Medina’ Brief was
served on the State Prosecuting Attorney and the
Criminal District Attorney of McLennan County via
email. Digitally signed by Denton B. Lessman DN: cn=Denton B. Lessman, o=Law Office of Denton B. Lessman, ou, email=DLessmanAtty@aol.com, c=US Date: 2015.01.16 14:34:28 -06'00' Denton B. Lessman
CERTIFICATE OF COMPLIANCE
I hereby certify in accordance with Rule 9.4(i)(3)
that this entire document, including those excludable
under Rule 9.4(i)(1), has a total of 1274 words and
that this documents was produced using Microsoft Word
2010. Digitally signed by Denton B. Lessman DN: cn=Denton B. Lessman, o=Law Office of Denton B. Lessman, ou, email=DLessmanAtty@aol.com, c=US Date: 2015.01.16 14:34:42 -06'00'