PD-0466-15 NO. ___________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
__________________________________________________________________
OSBALDO VALDEZ, Petitioner v.
THE STATE OF TEXAS Respondent
On Appeal from Cause No. 131798D in the 297th District of Tarrant County, Texas, Honorable Everett Young, Judge Presiding, and No. 02-14-00057-CR in the Court of Appeals for the Second District of Texas __________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW ____________________________________________________________________
Stickels & Associates, P.C. John W. Stickels TBN: 19225300 P. O. Box 121431 April 24, 2015 770 N. Fielder Rd. Arlington, Texas 76012 Phone: (817) 479 - 9282 Fax: (817) 622 – 8071 john@stickelslaw.com Attorney for Petitioner
NO ORAL ARGUMENT REQUESTED THE PARTIES
Pursuant to Rule 38(a) of the Texas Rules of Appellate Procedure, the
following is a complete list of the names and addresses of all parties to the trial
court’s final judgment and counsel in the trial court, as well as appellate counsel, so
the members of the court may at once determine whether they are disqualified to
serve or should recuse themselves from participating in the decision of the case and
so the Clerk of the Court may properly notify the parties to the trial court’s final
judgment or their counsel, if any, of the judgment and all orders of the Court of
Appeals.
Trial Judge: The Honorable Everett Young 297th District Court Tarrant County, Texas 401 Belknap, 5th Floor Fort Worth, Texas 76196
Petitioner: Osbaldo Valdez TDC No. 01910692 Polunsky Unit 3872 FM 350 South Livingston, TX 77351
Appellant’s Trial Counsel: Honorable Ken Cutrer TBN: 00787318 912 W. Belknap Fort Worth, Texas 76102
i Appellant’s Counsel on Appeal: Honorable John W. Stickels TBN: 19225300 P. O. Box 121431 770 N. Fielder Rd. Arlington, Texas 76012
Appellee: The State of Texas
Appellee’s Trial Counsel: Honorable Lisa Callaghan TBN: 01160700 and Honorable Kim Martinez TBN: 24045101 Assistant District Attorneys 401 Belknap Fort Worth, Texas 76196
Appellee’s Counsel on Appeal: Tarrant County Criminal District Attorney Appeals Division 401 Belknap Fort Worth, Texas 76196
ii TABLE OF CONTENTS
THE PARTIES ..................................................................................................................... i
TABLE OF CONTENTS ...................................................................................................iii
TABLE OF AUTHORITIES.............................................................................................. iv
STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1
STATEMENT OF THE CASE ........................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY ................................................................. 1
GROUNDS FOR REVIEW ................................................................................................ 2
The Second Court of Appeals erred when it did not find that there was insufficient evidence to support Petitioner’s conviction........................................................................................ 2
REASONS FOR REVIEW.................................................................................................. 2
DISCUSSION...................................................................................................................... 2
ARGUMENTS .................................................................................................................... 7
A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW: ..................................... 7
B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE: ....................... 7
PRAYER FOR RELIEF .................................................................................................... 11
CERTIFICATE OF SERVICE.......................................................................................... 12
CERTIFICATE OF COMPLIANCE ................................................................................ 12
APPENDIX ....................................................................................................................... 13
iii TABLE OF AUTHORITIES
Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). ................................................. 7
Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001). .................................................. 7
Jackson v. Virginia, 443 U.S. 307 (1979) ........................................................................... 7
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993). .................................................. 7
Statutes
Tex. Penal Code §2.01(2003). ............................................................................................. 7
Tex. Penal Code §29.03(1994) ............................................................................................ 8
Tex. Penal Code §6.03(a)(1974). ........................................................................................ 8
Tex. Penal Code §6.03(b)(1974). ........................................................................................ 9
Rules
Tex. R. App. P. 38(a)............................................................................................................ i
Tex. R. App. P. 66.3 ............................................................................................................ 2
Tex. R. App. P. 9(4)(i)(1). ................................................................................................. 12
Tex. R. App. P. 9.4(e)........................................................................................................ 12
Tex. R. App. P. 9.4(i)(2).................................................................................................... 12
iv STATEMENT REGARDING ORAL ARGUMENT
Petitioner does not request oral argument in this case.
STATEMENT OF THE CASE
Petitioner was indicted in a two-count indictment in Cause No. 1317982D in
the 297th District Court of Tarrant County, Texas. The indictment alleged that
Petitioner committed the felony offense of aggravated robbery in Tarrant County,
Texas, on or about February 13, 2014. The indictment contained a repeat offender
notification. (CR. 6). Petitioner’s jury trial was held in the 297th District Court of
Tarrant County, Texas, before the Honorable Everett Young. The jury found
Petitioner guilty of the offense of aggravated robbery. (CR. 67; 5 R.R. at 58). The
jury found the repeat offender allegation to be ‘true’ and sentenced Petitioner to
confinement for ninety nine (99) years in the Institutional Division of the Texas
Department of Criminal Justice. (C.R. 77; 6 R.R. at 61). Petitioner has remained in
custody pending appeal.
STATEMENT OF PROCEDURAL HISTORY
The opinion by the Second District Court of Appeals affirming the trial court’s
decision was handed down on March 19, 2015. Therefore, this PDR was due on
April 20, 2015. A Motion for Leave to File PDR Late is being tendered herewith.
1 GROUNDS FOR REVIEW
The Second Court of Appeals erred when it did not find that there was
insufficient evidence to support Petitioner’s conviction.
REASONS FOR REVIEW
1. The decision of the Second Court of Appeals conflicts with decisions
rendered by the Court of Criminal Appeals.
2. The decision of the Second Court of Appeals conflicts with the decisions
of other courts of appeals.
3. The decision of the Second Court of Appeals so far deviates from the fair
administration of justice that a Court of Criminal Appeal’s correction is required.
See Tex. R. App. P. 66.3
DISCUSSION
On February 13, 2013, the Metro PCS store locate at 901 Sylvania, Fort
Worth, Texas was robbed by an unknown person wearing a grey hoodie and grey
sweat pants. The store employee described the unknown person as a Hispanic male
in his 20’s wearing a grey hoodie, grey sweat pants, and a black mask. (4 R.R. at
19-22). The unknown person was also carrying an automatic pistol. A picture of a
similar pistol was admitted as State’s Exhibit 7 (for demonstrative purposes only).
(4 R.R. at 22-23; SX 7). The unknown person pointed the pistol at the clerk and 2 demanded money and a cell Galaxy S3 cell phone. (4 R.R. at 24). The clerk gave
the unknown person about $300.00 from the cash register but did not have a Galaxy
S3 cell phone to give him. (4 R.R. at 24-26). Instead, the clerk gave the unknown
person a LG Spirit phone. The clerk could not identify the person who robbed her.
(4 R.R. at 27).
R.H. owns the building where the Metro PCS store was located and was
driving by the Metro PCS store when the unknown person wearing came out of the
Metro PCS store wearing a grey hoodie and sweat pants. R.H. decided to follow the
unknown man. (4 R.R. at 40-42). R.H. followed the unknown man to the end of the
building when the unknown man took off the hoodie and the sweat pants and threw
them in the trash. (4 R.R. at 42). After he took off the grey hoodie and sweat pants,
he is wearing a t-shirt R.H. continued to follow the unknown man to a cul-de-sac
where he waited until the unknown man turned around and came back. (4 R.R. at
42-43). The car the unknown man was driving was a black car similar to a firebird
with an ‘old style’ Texas license plate with, possibly, a B and 873. (4 R.R. at 45-45).
R.H. saw the unknown person as he was driving the car past him and described
the driver as a “good built” Hispanic male with short hair about 30 years old. The
man had kind of a rounded face and no tattoos or any other distinguishing features.
(4 R.R. at 46-47). 3 A detective showed R.H. a photograph lineup containing 6 Hispanic males
and identified one of the pictures as being the person who came out of the Metro
PCS store. (4 R.R. at 48-50; SX 67). However, R.H. identified another person as
possibly being the person he saw coming out of the Metro PCS store. (4 R.R. at 51-
52). R.H. made an in-court identification of Petitioner as the person who came out
of the Metro PCS store. (4 R.R. at 52-53).
R.H. admitted during cross examination that he had difficulty identifying the
unknown person during the photo lineup. (4 R.R. at 56-58). R.H. was confused
between two pictures in the photo lineup and selected two pictures of people he
thought could have been the unknown person who was coming out of the Metro PCS
store. (4 R.R. at 57-58). R.H. selected the picture who looked most like the person
coming out of the Metro PCS store. In fact, R.H. said that he hoped he was selecting
the correct picture and doing the right thing and not getting his identification wrong.
(4 R.R. at 57-59).
The LG Spirit phone was activated the day following the robbery by someone
and calls were made on it. (4 R.R. at 114). Officers from the Fort Worth Police
Department obtained a warrant for the phone records relating to the activated LG
Spirit cell phone. The records relating to the LG Spirit phone were admitted as
State’s Exhibit 64. (4 R.R. at 115; SX 64). The records for State’s Exhibit 64 4 showed that multiple calls were made to and from the LG Spirit were related to
phone numbers connected to Petitioner’s girlfriend, mother, and place where he
lived. (4 R.R. at 117-122). The officers watched the house where Petitioner lived
for about a week and saw a car similar to the one described by R.H. (4 R.R. 125).
The officers obtained and arrest and search warrant for Petitioner and arrested him.
(4 R.R. at 127-128).
Officers conducted a sequential photographic lineup with R.H. that included
a picture of Petitioner. (4 R.R. at 135-137. SX 69) R.H. ultimately chose picture
number 4 (Petitioner), however, he was unsure of his identification. (4 R.R. at 137,
156-159). According to the detective who administered the lineup, R.H. identified
“number 1 or number 4, but number 4 looked most like the subject.” ((4 R.R. at 157,
ln. 22).
The detective identified Defendant’s Exhibit 2 as a recording of the photo
spread interview of R.H. (4 R.R. at 159; DX 2). Defendant’s Exhibit 2 was played
for the jury (4 R.R. at 159) and demonstrates the difficulties R.H. had in making the
identification from the photographs. (DX 2).
According to the detective, R.H. did not describe the unknown as having any
tattoos – even though he was wearing a white t-shirt. (4 R.R. at 160). In fact, R.H.
did not remember the unknown person as having any tattoos. (4 R.R. at 160-161). 5 However, Petitioner has many tattoos that are visible when he is wearing a t-shirt.
According to Petitioner’s Aunt he has had many tattoos for over 2 years that are
visible when he is wearing a t shirt. (5 R.R. at 10-11; DX 3, 4, 5, and 6).
It is important to note there was no physical evidence whatsoever, no
fingerprint, DNA, or any other physical evidence that connects Petitioner to the
robbery. Also, there were no proceeds of the robbery found in any place of item
(automobile) related to Petitioner. The only evidence that remotely connects
Petitioner to the robbery is the tainted identification by R.H.
Petitioner was indicted in a two-count indictment in Cause No. 1317982D in
the 297th District Court of Tarrant County, Texas. The indictment alleged that
Petitioner committed the felony offense of aggravated robbery in Tarrant County,
Texas, on or about February 13, 2014. The indictment contained a repeat offender
notification. (CR. 6). Petitioner’s jury trial was held in the 297th District Court of
Tarrant County, Texas, before the Honorable Everett Young. (CR. 161; 4 R.R. at 8).
The jury found the repeat offender allegation to be ‘true’ and sentenced Petitioner to
confinement for ninety nine (99) years in the Institutional Division of the Texas
Department of Criminal Justice. (C.R. 58; 4 R.R. at 170). Petitioner has remained
in custody pending appeal.
6 ARGUMENTS
A. LEGALLY INSUFFICIENCY – STANDARD OF REVIEW:
When reviewing a claim of insufficiency of the evidence, the appellate court
must determine, after considering all the evidence in the light most favorable to the
verdict, whether any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). In conducting this
review of insufficiency, the court does not reevaluate the weight and credibility of
the evidence, but only ensures that the jury reached a rational decision. Muniz v.
State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Whether the evidence satisfies
the Jackson test is a matter of law. The Jackson v. Virginia legal-sufficiency
standard is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense that
the State is required to prove beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010).
B. ARGUMENT AND AUTHORITIES – INSUFFICIENT EVIDENCE:
The State is required to prove every element of an offense beyond a reasonable
doubt. Tex. Penal Code §2.01(2003). According to the evidence adduced at trial,
there is both factually and legally insufficient evidence for the jury to have found 7 beyond a reasonable doubt that Petitioner committed the indicted offense. As a
result, this Court should overturn his convictions and order an acquittal.
A person commits the criminal offense of aggravated robbery if the person
uses threats force to commit a theft and uses or exhibits a deadly weapon. Tex. Penal
Code §29.03(1994). The State failed to prove each and every element of the offense
charged. Specifically, the State failed to prove that Petitioner was the person who
committed the offense in question because of a mistaken identity and/or
misidentification.
The indictment in this case alleges that Petitioner, on or about February 14,
2014, intentionally or knowingly, while in the course of committing theft of property
and with intent to obtain or maintain control of said property, threaten or place M.
R. in fear of imminent bodily injury or death, and the defendant used or exhibited a
deadly weapon, to-wit: a firearm. (C.R. 6). A person acts intentionally, or with intent,
with respect to the nature of his conduct or as a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result. Tex. Penal
Code §6.03(a)(1974). A person acts knowingly, or with knowledge, with respect to
the nature of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exists. A person acts
knowingly, or with knowledge, with respect to a result of his conduct when he is 8 aware that his conduct is reasonably certain to cause the result. Tex. Penal Code
§6.03(b)(1974).
In the case at bar there is insufficient evidence to support the jury’s finding
that Petitioner committed the offense of aggravated robbery at the Metro PCS store
on February 13, 2014, other than the tainted identification by R.H., because there is
no non-testimonial (physical) evidence that connects Petitioner to the offense alleged
in the indictment.
The primary problem with the state of the evidence against Petitioner is the
inconclusive identification by R.H. As noted by both R.H. and the detective, during
the photographic lineup R.H. selects two people, the person in place number one and
the person in place number four, as the person who he saw leaving the Metro PCS
store. R.H. stated that is could be this one, could be that one, but number four looks
more like the person he saw. It is important to note that R.H. did not say this is the
person who did it. Instead, R.H. sad this person looks more like the one I saw.
Obviously, ‘this person looks more like the one I saw’ is NOT the same as ‘this is
the person who did it.’
In addition to the lack of identification, R.H. admits that he may have made
an incorrect identification when he told the detective that he hopes he’s not making
a terrible mistake by picking this person. 9 Finally, the recording of R.H. making his identification of Petitioner, Defense
Exhibit 2, demonstrates how hesitant he was in identifying Petitioner.
The second problem with the state of the evidence against Petitioner is that
R.H. failed to note R.H.’s obvious identifying factor – his tattoos. Petitioner’s Aunt
testified that Petitioner has many tattoos that are visible when wears a t-shirt. As
noted by R.H., the unknown person had on a t-shirt after he threw away the grey
hoodie and sweat pants. Petitioner’s tattoos are also amply demonstrated in
Defendant’s Exhibits 3, 4, 5, and 6. If Petitioner had truly send Petitioner as he
testified, he would have noticed the tattoos.
Finally, the third problem with the state of the evidence against Petitioner is
the lack of any physical evidence connecting him to the robbery. As stated above,
there was no physical evidence whatsoever, no fingerprint, DNA, or any other
physical evidence that connects Petitioner to the robbery. Also, there were no
proceeds of the robbery found in any place of item (automobile) related to Petitioner.
The only evidence that remotely connects Petitioner to the robbery is the
tainted identification by R.H. As amply demonstrated above, R.H.’s identification
of Petitioner is tainted, suspect, and is insufficient to support his conviction.
10 The Second Court of Appeals erred when it did not find that there is
insufficient evidence to sustain Petitioner’s conviction and this court should reverse
Petitioner’s conviction.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays
that this Court grant discretionary review and allow each party to fully brief and
argue the issues before the Court of Criminal Appeals and that upon reviewing the
judgment entered below, that this Court reverse this cause and remand it for a new
trial.
Respectfully submitted,
Stickels & Associates, P.C. P. O. Box 121431 770 N. Fielder Rd. Arlington, Texas 76012 Phone: (817) 479 - 9282 Fax: (817) 622 – 8071 john@stickelslaw.com
BY: /S/ John W. Stickels John W. Stickels State Bar No. 19225300 Attorney for Osbaldo Valdez
11 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has
been furnished to counsel for the State via hand delivery and on the State Prosecuting
Attorney via regular mail on this 23rd day of April, 2015.
/S/ John W. Stickels John W. Stickels
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(i)(2) because it contains 2,694 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9(4)(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
because it has been prepared in proportional spaced typeface using Windows
Word software in Times New Roman 14-Point text and Times New Roman
12-point font in footnotes.
12 APPENDIX
1. Opinion of the Seventh Court of Appeals