CAUSE NO. 04-14-0024-CR 

# /33*ffS

IN THE COURT OF CRIMINAL APPEALS AUSTIN/ TEXAS 

# ORIGINAL APETITI0N F0R DISCRETIONARY REVIEW OF CAUSE NO. 04-14-0.024-CR FROM THE COURT OF APPEALS FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS 

## COURTOFCR!?J3NALAPPEALS NOV 03 2Q15

ON APPEAL FROM THE 81ST JUDICIAL DISTRICT COURT La SALLE COUNTY, TEXAS TRIAL CAUSE NO. 11-09-00041-CRL

MR. DESTYN DAVID FREDERICK [PRO-SE APPELLANT]

VS. THE STATE OF TEXAS [APPELLEE] 

## COURT-OFePIIMiNXtfA^feALS (OCA) 

### my 03 2s;5 Abel Acosta, Cierk

Mr. Destyn David Frederick #01920865 The John B. Connally Facilities 899 FM 632 Kenedy, Texas 78119-4516

ORAL ARGUMENT REQUESTED

-l-CAUSE NO. 04-14-0024-CR
IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

A PETITION FOR DISCRETIONARY REVIEW j OF CAUSE NO. 04-14-0024-CR FROM THE COURT OF APPEALS FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS

ON APPEAL FROM THE 81ST JUDICIAL DISTRICT COURT La SALLE COUNTY, TEXAS TRIAL CAUSE NO. 11-09-00041-CRL

MR. DESTYN DAVID FREDERICK [PRO-SE APPELLANT]

VS.
THE STATE OF TEXAS [APPELLEE]



### COMES NOW, Mr. Destyn David Frederick, styled hereinafter as pro 

### se Appellant and respectfully presents this Petition for Discre 

### tionary Review (PDR) relating to the above-styled and numbered cause(s), and for good cause, the Appellant shows this Honorable Court the following enumerated premises:

11-TABLE OF CONTENTS PAGES INDEX OF AUTHORITIES ************************************* — 'Ivj*'- 

### STATEMENT REGARDING ORAL ARGUMENT ************************ —.I/.-*- i STATEMENT OF THE CASE ************************************ •^y.J^- STATEMENT OF PROCEDURAL HISTORY ************************** — \/~ GROUND FOR REVIEW **************************************** —1- ARGUMENTS ************************************************ 1—5 PRAYER FOR RELIEF **************************************** 5 APPENDIX ************************************************ (COURT'S OPINION)

-HiINDEX AUTHORITIES
PAGES 

## BURKS V. UNITED STATES,437 U.S. 1, 93 S.Ct- 2141 ************* CAIN V. STATE,958 S.W.2d 404 ************************** ******* 

## GREEN V. MASSEY.437 U.S. 19, 98, S-Ct. 2151 ******************
In re WINSHIP,397 U.S. 358, 90 s.Ct- 1066 *************** 

## JACKSON V. VIRGINIA,SUPRA ************************************ JONES V. STATE,944 S.W.2d 642 ********************************
RICHARDSON V. STATE, 379 S-W.2d 674 *************************** ROUSSEAU V. STATE,355 S.W.2d 673 *****************************
STONE V. STATE,823 S.W.2d 375 ******************************** :*****

5

2

5

1, 2 

### TEXAS PENAL CODE 19.02(b)(3) *********************************

- IV..-STATEMENT OF ORAL ARGUMENT Appellant seeks ORAL argument because He concludes that He has suffered a great injustice at the trial and appellate level.

STATEMENT OF THE CASE Appellant was charged by a Grand Jury on September 1, 2011 in a Fourt (4) Count indictment. All offenses were alleged to have occured on or about June 13, 2011. (CR:1). The State waved the death penalty. Id. at 103. Before jury selection, the State elected to proceed to trial on the offense of Capital murder as alleged in Count 1. (RR.11:3-4). The Appellant plead not guilty before a jury. (CR:412) The jury returned a unanimous verdict of guilty to felony-murder on February 14, 2014. Id. at 424. Punishment was assessed by the jury at 30-yrs confinement within the Texas Department of Criminal Justice
- Institutional Division, and a fine of $5,000.00. Id.

STATEMENT OF PROCEDURAL HISTORY Appellant filed a Motion for New Trial on March 12, 2014. In accordance to the juror's verdict and the court's ruling, the court 

### entered judgment of conviction and sentence on March 27, 2014. (CR: 691; and.498-99). Appellant filed a timely notice of Appeal on February 14, 2014. Id. at 675, and a Certificate of Appeal was filed February 12, 2014. Id. at 674. The Fourth Court of Appeals AFFIRMED Appellant's conviction on September 9, 2015. A Motion to Extend Time to file Petition for 

### Discretionary Review (PDR) was filed by the Appellant's [then] app ellate attorney (Richard E. Langlois) on October 9, 2015. 

### Appellant now presents this His "timely" submitted Petition for 

## Discretionary Review on this the 0\tf day of @fcfoP&S":„ 2015pm.
-V-GROUND FOR REVIEW
"THE COURT OF APPEALS ERR'D IN LIMITING ITS REVIEW ON THE APP

ELLANT' S INSUFFICIENCY OF THE EVIDENCE CLAIM AND HAS APPLIED A MISAPPLICATION SURROUNDING THE FACTS OF.THE APPELLANT'S CASE; HENCE DENYING,THE APPELLANT'S DUE PROCESS RIGHTS TO A FAIR AND ADEQUATE REVIEW."

ARGUMENTS AND AUTHORITIES Pi SUPPORT OF SOLE GROUND FOR REVIEW 

### [tEUE]: Even though this is not a Ineffective Assistance of Oxnsel Issue, the Appellant asserts that His appellate attorney (Richard E. Langlois) wasbiasly inefective for failing to present "other" issues/grcuids for reversal considerations, and as this Honorable Court can see for itself on page 4 (at bottcm) and top of page 5 of the COA's 'tPINIDN", Appellant's counsel was also ineffective for attempting to raise the "Accomplice Witness"

issue as a independent ground for review. Please know that the Appellant made extrerrely diligent attempts to p.irusade HLs appellate counsel to raise "other" per-se reversal issues for appellate review other than the lone issue presented in the Etief he submitted

in the Appellant's behalf, of course to no avail.,etc.-. The Appellant now respectfully presents this His.pro-se rebuttal to the COA's "OPINION."

"LIMITED REVIEW AND MISAPPLICATION OF THE FACTS" Within this argument, the Appellant asserts that the Court of Appeals (COA) err'd in limiting its review of the Appellant's Insufficiency of the Evidence claim strickly to only "reviewing evidence in the light most favorable to the verdict." 

### In the past, this Honorable Court stated that jit emphasize 

### that in performing a sufficiency review, the COA are required to give deference to the jury's verdict, examine all of the evidence impartially, and set aside the jury's verdict if it is contrary to the overwhelming weight of evidence as to be 

### clearly wrong and unjust. Cain v. State,958 s.w.2d 404 (Tex.Crim. 

### App. 1997)(citing Clewis v. State,922 s.w.2d at 129). A suffi ciency, review is permitted by the Texas Constitution, Article V, § 6. See also Stone v. State, 823 s-w.2d 375 (Tex.App.-

-1-Austin 1994, no pet.) the Court stated:

In 

### When conducting a sufficiency review, we do not review the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally.*** We will set aside 

### a1 verdict for sufficiency if it is contrary to the overwhelming weight of the evidence as to be wrong and unjust." (In perti nent part only) the instant case and in accords with the above requisites, the 

### Appellant would urge th&t—the—jury's verdct must be set aside because it is clearly wrong and unjust, because such a verdict clearly shocks the conscience and cannot stand. Jones v. State,944 s.w.2d 642 (Tex. Crim. App. 1996). 

### More specifically, the trial testimony established at most that 

### the Appellant had absolutely no knowledge or direct involvement with the murder of the Complainant. This contention is supported by the 

### following facts, unlike the COA's misapplication of the actual facts as illustrated throughout its Opinion: :, SUPPORTING FACT NUMBER ONE (1)

"SHOTGUN NOT SUPPLIED FOR MURDER" 

### While at the residence of the Appellant, Rigo Guerra and Marcus 

### Serna (the "alleged" co-defendents) were in the Appellant's bedroom, in which Guerra saw a shotgun on the Appellant's bed. Appellant related to Guerra that His mother (Gloria Rodriguez) was selling the gun. After making sure the gun wasn't loaded, Appellant allowed Guerra 

### to hold the gun, in which Guerra wanted to consult with his grandmother to see if she would fPlbCChase the gun for him. [See page 9 of Appe llant's Appeals Brief]. This testimonial, evidence clearly demonstrates that not only did

-2-the Appellant present the gun to Guerra for purchasing purposes, but! upon giving it to Guerra, He made sure that its wasn't loaded. These facts clearly removes the Appellant from criminal intent of murder, for it was the Appellant's sole conscious desire to sell the gun, 

### nothing else. [DARK BOLD MINE FOR EMHPASIS];
SUPPORTING FACT NUMBER TWO (2) "NO KILLING WAS PLANNED OR KNOWN TO APPELLANT" One of the Appellant's "alleged" co-defendants (Guerra) wanted to kill a innocent by-stander, in which Serna responded to Guerra:

...We're (Serna & Guerra) not going to do anything stupid." All of th is took place outside of the presence of the Appellant. (RR 

### 8, pg 102-113). This evidence shows that killing someone was not part of the Appe llant's plans. The evidence clearly demonstrates that the Appellant was not told and/or warned of Seran and Guerra's plans, for it is totally obvious that Serna and Guerra were plotting,and planning things 

### with one another behind the Appellant's back. [DARK BOLD MINE FOR
EMPHASI S]; and
SUPPORTING FACT NUMBER THREE (3)
"THE APPELLANT WALKED AWAY" After agreeing only to steal a few tangible items from the Com 

### plainant's garage, the Appellant saw that Serna and Guerra were about 

### to force their way into the Complainant's home, He (the Appellant) knew that He didn't want to have anything to do with actually breaking 

### into the Complainant's home or hurting anyone, therefore He walked

3-away from Serna and Guerra and walked out of the Complainant's garage "before" the forced entry transpired, in which He later learned that the Complainants had been shot. Id. at pg 114-123. This evidence clearly shows that the Appellant did not act as a party by planning and anticipating the burlary and murder of the Com 

### plainant. [DARK BOLD MINE FOR EMPHASIS]. These facts within themselves openly illustrates that the COA failed to apply the correct review and legal analysis in deciding that the evidence was sufficient to establish Appellant's guilt as a party to felony-murder. 

### Finally, the COA failed to address within its entire "OPINION" any of the the requisites outlining the elements for felony-murder. This Honorable Court has stated that the difference between Capital 

### and felony murder is the culpable mental state of the defender. This Court has said that capital murder required the existence of an "inten tional cause of death" while felony-murder states that "the culpable mental state for the actrrof murder is supplied by the mental state 

### accompanying the underlying felony. Rousseau v. State,855 s.w.2d at 673 (Tex.Crim.App. 1993). However, the inquiry does not end with a finding that the Appellant possessed the requisite culpable to commit the underlying felony. In order to find that the Appellant 

### is guilty of felony-murder, the jury must find that the Appellant committed "an act clearly dangerous to human life." (See Texas Penal Code, § 19.02(b)(3).
In that the instant case, a review of the testimony in this case reveals 

### the State failed to prove that the Appellant "intended" the death

-4-of the life. The Complainant or committed an act clearly dangerous to human

Court in In re Winship,397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Court held that the Due Process of the Fourteenth Amendment protect

### s a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to con stitute the crime with which he is charged. 90 S.Ct. at 1073. See 

### also Richardson v. State,879 s.w.2d 874 (Tex.Crim.App.). 

### As mentioned earlier, the COA faild to address any of these requi sites while reviewing the Appellant's case, nor did they apply them, hence denying Appellant a proper and adequate review. 

### Finally, the Appellant contends that the evidence and testimony in this case falls short and is insufficient to meet the minimum Due Process requirements of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia,supra. The evidence is insufficient to support the conviction and a judgment of acquittal should be en tered. Burks v. United States,437 U.S.I, 98 S.Ct 2141, 57 L.Ed.2d 1; and Green v. Massey,437 U.S. 19, 98 S.Ct- 2151, 57 L.Ed.2d 15.

PRAYER FOR RELIEF WHEREFORE PREMISES ARE CONSIDERED, the Appellant PRAYS that this Honorable Court GRANT this PDR by finding that the COA's assessment of His sufficiency of evidence issues were not properly addressed, and REMAND this case back to the District Court for further disposition

-and/or Reverse this conviction and acquit the Appellant- 

### [EXECUTED ON THIS THE J21 ffcfDAY OF OCTOBER, 2015]

5-

# w

-6- Respectfully submitted,
Mr. Destyn. D. Frederick #1920865 The Connally Facilities 899 FM 632 Kenedy, Texas 78119-4516[APPENDIX "COURT OF APPEALS OPINION" ATTACHED HERETO]

# jf ourti) Court ofAppeals: ^>an Antonio, tEexag MEMORANDUM OPINION No. 04-14-00246-CR Destyn David FREDERICK, Appellant

v. The STATE ofTexas, Appellee Fromthe 81stJudicial District Court, La Salle County, Texas Trial Court No. 11-09-00041-CRL Honorable Donna S. Rayes, Judge Presiding Opinionby: Sandee Bryan Marion, ChiefJustice Sitting: Sandee Bryan Marion, ChiefJustice Karen Angelini, Justice Jason Pulliam, Justice Delivered and Filed: September 9, 2015 AFFIRMED 

### DestynDavidFrederickwas found guiltyby ajuryoffelony murderand sentenced to thirty 

### years' imprisonment. On appeal, Frederick challenges the sufficiency ofthe evidence to support his conviction, asserting: (1) the evidence is insufficient to corroborate the testimony of an 

### accomplice witness; and (2) the evidence is legally insufficient to support thejury's finding that
t 

### Frederick was guilty offelony murder. We affirm the trial court'sjudgment.04-14-00246-CR Background Although a grandjuryreturned a four count indictment against Frederick, the State elected 

### to proceed to trial on only one count charging Frederick with the capital murder ofIsrael Casas. The State waived the deathpenalty. On the nightMr. Casas was murdered, Frederickadmittedhe accompaniedhis friends Rigo / Guerra and Marcus Serna to Mr. Casas's home. Guerra and Serna forced their way inside the ^ home, and Guerra shot and killed Mr. Casas. At the conclusion ofthe evidence, the trial court submitted ajury charge on capital murder and the lesser included offenses offelony murder and 

### burglary ofa habitation. The jury charge included instructions on the law ofparties and the necessity for accomplice witness testimony to be corroborated. Thejury found Frederick guilty offelony murder, and Frederick appeals. Accomplice Witness In his first issue, Frederick contends the evidence is insufficient to corroborate Serna's 

### testimony as an accomplice witness. The record is undisputed that Serna was an accomplice witness as a matteroflaw, and thejury was so charged. Article 38.14 ofthe Texas Code ofCriminal Procedure states: 

### A conviction cannot be had upon the testimony ofan accomplice 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 ofthe offense. 

### Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). We evaluate the sufficiency of 

### corroboration evidence under the accomplice-witoess rule by first eliminating the accomplice 

### testimony from consideration and then examining the remaining evidence to see if it tends to connect the accused with the offense committed. Malone v. State, 253 S.W.3d 253, 257 (Tex. 

### Crim. App. 2008);Perezv. State, 437 S.W.3d 610, 616 (Tex. App.—SanAntonio 2014, no pet.).04-14-00246-CR To satisfytherule, the corroboratingevidence is notrequiredto prove the defendant's guiltbeyond a reasonable doubt by itself. Malone, 253 S.W.3d at 257; Perez, 437 S.W.3d at 616. Instead, the 

### corroborating evidence "must simply link the accused in someway to the commission ofthe crime and show that rationaljurors could conclude that this evidence sufficiently tended to connect the accused to the offense." Malone, 253 S.W.3d at 257 (internal citations omitted); see also Perez, 

### A2>1 S.W.3d at 616. No set amountofevidence is requiredto satisfy the accomplice-witness rule, and each case isjudged on its own facts. Malone, 253 S.W.3d at 257; Perez, 437 S.W.3d at 616. 

### "[Circumstances that are apparently insignificant may constitute sufficient evidence of corroboration." Malone, 253 S.W.3d at 257. A defendant's mere presence at the scene ofthe crime, however, is insufficient to corroborate accomplice testimony. Id. "[W]hen there are two 

### permissible views ofthe evidence (one tending to connect the defendant to the offense and the othernot tending to connectthe defendantto the offense), [we] defer to that view ofthe evidence 

### chosen by the fact-finder." Simmons v.State,282 S.W.3d 504, 508 (Tex. Crim. App. 2009). . In this case, Frederick voluntarily gave two statements to investigators about the burglary 

### and shooting. Both statements were read to the jury. In his first statement, Frederick admitted he gave Guerra the shotgun used in the murder. Although Frederick stated he allowed Guerra to take the shotgun because Guerra intended to purchase it, we defer to thejury's evaluation of the credibility ofFrederick's stated reason for supplying the shotgun. We simply note Frederick's provisionofthe shotgun is evidenceljnkinghim to the commissionofthe crime. In his second statement, Frederick admitted he went with Guerra and Serna to the Casas' 

### home. The evidence also included the testimony ofinvestigating officers establishing a forced 

### entry into the Casas'garage, anda canofsodawasrecovered from the hoodof a car in thegarage. Because DNAtestingshowed Frederick'sDNAcould not beexcluded as the sourceoftheDNA found on the can ofsoda, this evidence also linked Frederick to the commission ofthe offense.04-14-00246-CR 

### Finally, a pair oflatex gloves were found in a backyard in proximity to the shotgun used to murder Mr. Casas. A box oflatex gloves was also found in Frederick's truck, and Frederick's DNA could not be excluded as the source ofDNA on a latex glove found under the driver's seat ofFrederick's truck. 

### Because the foregoing evidence tends to connect Frederick with the commission ofthe crime and proves more thanjust his mere presence at the scene, the evidence is sufficient to corroborate Serna's testimony. Legal Sufficiency 

### In his second issue, Frederick contends the evidence is legally insufficient to support the jury's finding that he was guilty offelony murder. A. Standard ofReview 

### Inassessing the legal sufficiencyofthe evidence to support a conviction, a reviewing court must consider allofthe evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rationaljurorcould have found the 

### essential elements ofthe crime beyond a reasonable doubt. Jacksonv. Virginia, 443 U.S. 307, 

### 318-19(1979); Louis v. State, 393 S.W.3d 246, 249 (Tex. Crim. App. 2012) (internal citations omitted). Inapplying this standard, we defer to thejury's credibility and weightdeterminations. Brooks v. State,323 S.W.3d 893, 894 (Tex. Crim. App. 2010). In addition,juries are permitted 

### "to draw multiplereasonable inferences as long as each inference is supported by the evidence 

### presented attrial." Hooperv. State, 214S.W.3d9, 15 (Tex. Crim. App. 2007). "[A]ninference is aconclusionreachedbyconsideringother factsanddeducingalogicalconsequencefromthem." 

### Id. at 16. AlthoughFrederickraises aseparatechallengeundertheaccomplice-witness rule, "[w]e do notuse theaccomplice witness rule inevaluatingthesufficiencyof theevidence." Winfreyv.

-4- ,fv04-14-00246-CR State, 393 S.W.3d 763, 770 (Tex. Crim. App. 2013). "We simply review all ofthe evidence in the light most favorable to the verdict." Id. B. Summary ofEvidence 

### Viewing the evidence in this case in the light most favorable to the verdict, Frederick admitted he was with Guerra and Serna when Israel Casas was murdered. Serna was offered a deal by the Stateand testifiedat Frederick's trial. Afterspendingseveral hours together, Frederick, 

### Guerra, and Serna were sitting in Frederick's truck and discussed goingto breakinto a house and see what they could find. Guerra suggested they should have a gun for protection. In response to 

### this suggestion, Frederick stated his mother had a shotgun she was trying to sell. Frederick then went insidehis house and handedthe shotgunthrough an air conditioningventto Guerra, who was 

### waitingoutside. After Guerra returned to Frederick's truck with the shotgun, Frederick exited his house through the front door and returned to the truck. The three men drove to Serna's house because he had a box ofshotgun shells. Upon 

### arriving at his house, Serna retrieved the box and handed it to Guerra, who removed three or four shells. After returning the box to its original location, Serna went inside his house and retrieved three pairs ofdisposable latex gloves. Upon returningto Frederick's truck, Serna handed Frederick and Guerra a pair ofthe gloves to avoid leaving fingerprints anywhere. Frederickthen drove to a location near a water tower where he left his truck hidden under a carportto avoid it being traced 

### to their intended burglary. The three men put the gloves on before exiting the truck. 

### The three men then began walking toward a light on a ranch when they encountered a 

### Gator, which was later described as a heavy-duty four-seater golfcart or ATV, with its key in the 

### ignition. After driving the Gator to a building, Guerra and Serna exited the Gator and crept to the frontofthe building where they saw a woman smoking a cigarette. Although Guerra told Serna he wanted to kill the woman, Serna told him no. Guerra and Serna then returnedto the Gator, and -5-04-14-00246-CR the three men drove to anotherhouse where all three men exited andapproached the house. Either Guerra or Frederick forced their entry into a garage from a carport. Because they did not find 

### anything ofvalue in the garage, they began discussing whether to leave or go inside the house. Serna believed Guerra grabbed a soda from arefrigeratorin the garage, tooka drink, and returned it to the refrigerator. Serna did not recall Frederick drinking a soda. When Guerra decided to enter the house, Serna followed him while Frederick walked out 

### ofthe garage. After forcing their entry into the house, Guerra shot Mr. and Mrs. Casas. The 

### evidence is undisputed that Mr. Casas died as a result ofa gunshot wound to his face. After the shots were fired, Guerra and Frederick ran out ofthe house and returned to the Gator. All three men drove back to Frederick's truck and left the Gator where the truck was 

### previously parked. After driving around in the truck for twenty minutes, Guerra suggested they 

### rob a gas station. Guerra exited the truck and told them to pick him up behind some apartments. Instead, Frederick drove to an alley behind Serna's house where they left the truck, walked to the 

### street, and saw multiple police cars at the gas station. As they began to return to the truck, Frederick and Serna saw officers with a spotlight on the truck, so they ran to a different location. Frederick called his mother and was apprehended when she arrived to pick him up. Serna was 

### apprehended shortly thereafter in the same general location. C. Analysis 

### As previously noted, Frederick was found guiltyoffelonymurder. With regard to this offense, thejury was charged: 

### Now, bearing in mind the foregoing instructions, if you find from the 

### evidence beyond a reasonable doubt that on or about June 13, 2011,in La Salle County, Texas, the defendant, Destyn David Frederick,either acting alone or as a 

### party thereto as hereinbefore defined, did then and there commit or attempt to commit felony, to wit: burglary of a habitation and in the course of and in furtherance ofthe commission, or in immediate flight from the commission ofsaid 

### felony, he either acting alone, or as a party thereto as hereinbefore defined,04-14-00246-CR 

### committed or attempted to commit an act clearly dangerous to human life, to wit: 

### shooting Israel Casas with afirearm, you will find the defendantguilty ofthe lesser included offense offelony murder. 

### See Tex. PenalCode Ann. § 19.02(b)(3) (West 2011). Thejury charge included an instruction 

### on the conspiracy theory of parties which permitted the jury to find Frederick criminally responsible for felony murder if: (1) he conspired with Guerra and Serna to commit the offense of burglary ofa habitation; (2) Guerra or Serna committed the felonyofmurder in furtherance ofthe 

### burglary; and (3) the murder was a felony Frederick should have anticipated as a resultofcarrying out the conspiracy. Id. at § 7.02(b). 

### Viewing the evidence in the light most favorable to thejury's verdict, Frederick, Guerra, 

### and Serna discussed committing a burglary. Frederick supplied Guerra with the shotgun to be used 

### during the burglary." Frederick and the othermen put on gloves in an effort to conceal any fingerprints. Frederick, Guerra, and Sernaforced their entry into the Casas' garage. Frederick's DNA could not be excluded as the source ofthe DNA found on the soda can left on top ofthe car 

### in thegarage. BysupplyingGuerrawith the gun for which Sernaprovided shells,Frederickcould have anticipated Guerra using the gun to shoot someone. SeeFloresv. State, 681 S.W.2d 94, 96 

### (Tex.App.—Houston [14th Dist.] 1984), affd, 690 S.W.2d281 (Tex. Crim. App. 1985) (noting defendant could have anticipated victim being shot in furtherance of conspiracy to commit burglary because defendant knew co-conspirator had a gun). Therefore, the evidence is legally sufficient to support thejury's finding that Frederick was guiltyoffelony murder.
1Indiscussing the lawofparties inhis brief,FrederickcitesGross v. Stale, 380S.W.3d 181 (Tex. Crim. App. 2012), 

### and argues, "Gross'sconviction and appellant's convictionboth involvealegal andfactual determinationofwhether 

### they were culpable for the death ofthe victims as a party." Frederick notes thecourt inGross held theevidence insufficienttoconvict theappellant as aparty. 380S.W.3d at 188-89. InGross, however, theshotgun used in the murderwaslocated in thetruck theappellantwasdriving, but theappellantneverhanded the gun to theperson who shot the victim. 380 S.W.3d at 183. In the instant case, however, Frederick admitted he gave Guerra the shotgun used in theoffense. In addition,Serna testifiedabout the discussionshe had with Guerra and Frederickregardingthe plan 

### toengageinburglaries, whileno evidenceofanydiscussionsbetweentheappellantandthe shooterwaspresented in Gross.04-14-00246-CR Conclusion 

### The trial court'sjudgmentis affinned. Sandee Bryan Marion, ChiefJustice DO NOT PUBLISH