Ref No PD 115-15

IN THE COURT OF CRIMINAL APPEALS

AUSTIN , TEXAS

FERNANDO MAGALDE

PETITIONER

RECEIVED M

COURT OFCRIMINAL APPEALS

APR 17 2015

v.

THE STATE OF TEXAS

APPELLEE

Abel Acosta, Clerk

petoitiion for Discretionary Review of the 8th Court of appeals

El Paso County ,Texas, Appeal No 20110D05035 and the judgment

by the 120th District Court the Honorable Judge Maria-salas

ORAL ARGUMENT REQUESTED

Judge

Maria-Salas

Prosecutor state

Jaime Esparza/

Manuel Arambula,

Nathan Brown,

34th Judicial Dist Attorneys

l?°pIsoST2x§gt9^8lROOm 201

Parties

Trial Counsel

Attorneys

Robert Riley,

Jaime Gandara

ElPaso publish defender .

500 E, San Antonio, R 501

El paso Texas 79901

Appellate Counsels

Clara Hernandez,

Penny Lee Anderson
FERNANDO MAGALDE

Petitioner

V.

THE STATE OF TEXAS

Appellee

IK THE COURT. OF CRIMINAL APPEAS

AUSTION , TEXAS

Ref'd PD 0114-15

App NO 08-12-000&3-CR

Trial NO 20110Dd6:|i« i:. -120-2

PETITIONER / PETITION FOR DISCRETIONARY REVIEW

AND MEMORANDUM IN SUPPORT

TO THE HONORABLE JUDGE OF SAID COURT

Comes Now Fernando Magalde, Petitioner Pro se,Hereinafter Magalde in the

above styled and Numbered cause to file this petition and Memorandum in

support thereof his petition for Discretionary Review and will show the court

the following

I

FACTUAL / PROCEDURAL BACKGROUND

Petitioner Magalde was charged in a three count indictment with Robbery

COUNT I, Aggravated Kidnapping COUNT II,And Unlawful ;;use of a motor vehicle

COUNT III, At the trial the jury found him not guilty of Caffit one the Robbery

and Count III, the Unlawful use of a Motor vehicle, The jury also found him

not guilty of the Aggravated Kidnapping Count II, But found him guilty of

the lesser included offense Un4a:W/fulU Restraint1 of Count II (CR 174) at

the punishment phase January 25, 2012 the jury assessed punishment at 365

days jail time and a fine of $4,000 dollars (RR5,233)) (CR 155) Sentencing

was imposed by the Honorable Judge Salas-Mandoza in the same (RR5,237) (CR

11-12 ) Notice of appeal was given an signed on, by Judge Salas-Mendoza January

25, 2011 (CR 135 ) with a second notice filed February 9,2012 (CR 166-167)

II

Magalde appealed his conviction to the 8th court of appeala El Paso Judical

district styled FERNANDO MAGALDE-V.THE STATE OF TEXAS,App NO 08-12-00065 CR

whom in a unpublished opinion affirmed the conviction on March 12,2014 The

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Original date for filing the petition for Discretionary Review was April

27,2014, However a letter was sent to the El Paso Public Defender Office

by petitioner who requested them to file an extension of time ,his letter

was not transmitted to the court of appeals do to a clerical error which

caused the time period for filing of the ( PDR ) to calpse, A motion was

filed by the El Paso Public defender office on June 13,2014 seeking extension

of time, that letter was subsequently denied by the court of criminal appeals

June 16, 2014

Petitioner then filed an application for writ of Habeas Corpus to the court

of criminal appeals pursuant to Article 11.07 of the texas Code of Criminal

Procedural seeking permission to file an out-of-time petition for discretion

ary review ( WRIT NO WR 82-561-01 ) Which was granted in his favor on January

14, 2015 granting him an opportunity to file an out-of-time petition for

discretionary review the courts mandate issued on February 9,2015 A motion

for extension of time was filed by petitioner on January 20,2015 seeking

another extension of time to prepare and file his PETITION WHICH WAS ALSO

GRANTED February 2,2015 which extended to period for filing the ( PDR ) until

may 11, 2015 III

JURISDICTION

This Honorable Court has Subject matter Jurisdiction pursuant to Texas Rules

of Appellate Procedural Rules 66.1, 66.3 and 68 as part if its punitive power

to review criminal matter

IV

REQUEST KB ORAL ARGUMENTS

Oral arguments are necessary so that petitioner may better advise the courts

why the error in the courts jury charge rendered the evidences Legally insuff

icient ,,and why the verdict constitutes a violation of due process ,oral

argument will further permit petitioner to show way the opinion of the 8th

court of appeals was also flawed ,that a reversal and Remand is Thus warranted

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TABLE OF CONTENTS

Cover page ••• - • • 0

Factual / Procedural Background .= .....,. ........... . l

Jurisdiction .. .. , ,,...=.. . . , . 2

Request for Oral Arguments .. = = 2

Index of Authorities ....... .,..,,, 3

Statement of Case ; • - . ,.= ........,..... 5

Statement of Facts ....,..= .„ ,.,.., 5-6

Issues Presented ... - -. - . •• . - • 6

Arguments /Authorities -....= ,.............„ . . . 7

TABLE OF AUTHORITIES

Supreme Court Cases

Brunks.v.United States,347 U.S 1,96 S.CT.2141,57 L.Ed .2d 1 (1978 )

Hopper.v.Evans, 456 U.S,605,120 S.ct 2049,72.L.Ed.2d.367 (1982 ) ...,».,... 13

In Re Winship 397 U.S.358,90.S.CT .1068.25 L.Ed .368 (1970 ) ... . . .,. , . ., 15

Jacksoh^vlVirginia,443 US 307,318-20 99 S.CT 2781 2788-89 11

Federal Cases

U.S.V. Baker ,.l, 820 F. 2d-2033, 2035 ( 9th Cir 1984 ),..,.., .,...,.. 7

U-S.V.Scroggos,379 -F.3d.233,353,357 (5th Cir 2004 ) . , , , .. , 15

State Cases

Bagnill.v.State,887.S.W.2d.21.(Tex.Crim.App 1998 ) >.,..„ .... ., ,, . ... . -7,8,9

Barnas.v.State,644.S.W. .2d.l. (Tex.Crim.App 1981 ) - - ••• •• - 13

Benavides.v.State,763-S.W.2d.587,589.(Tex.App.Corpus.Christi 1988 pet Ref'd). . 7

Brinage.v.State,918 S.W. 2d at 644,675,76 (Tex.Crim.App 1994 ), - ... ,. ,,.. = = 14

Brooks, v-State, 323.S.W. 3d at 894,95 (Tex. Crim.App 2009 ) ........ .. .. . ... 21

Curry-v.State-966.S.W. 2d 203 ( Tex.App El Paso 1998 ) ., .. .. .. . ,., .... ..... 9

Doyles.v.State,632 S.W. 2d a 732,788 ( Tex. Crim.App 1982 ),....=,.-... .. 13

Gollihar-v.State,46 S.W. 2d at 243. (Tex.Crim.App 20001 ) , . 22,13

Griffith.v.State, 976 S.W. 2d.686,690 ( Tex.App.Tyler pet Ref'd ) . .-23

Hampton.v.State,165.S.W. 3d 691 ( Tex.App Houst [1st Dist] 2005 ) ,.., ,... .. . , q

Holcomb.v.State. 745 S.W. 2d 903 ( Tex.Crim.App 1988 ) .. « , ,.. . ... ., ... . .- =. 22

Johnson.v.State.84 S.W. 3d 724 ( Tex.App Houst [1st Dist] 2002)) „ . 21

Jordan.v.State.639 S.W. 2d 477,478 ( Tex.Crim.App 1982 )............ . . 24

Kieschnick.v.State.911 S?W? 2d ...156,161 ( Tex.App Waco 1995 ) ,...,..,,.. 21

Kulzner.v-State.994 S?.W2d. 180.184 ( Tex.Crim.App. 19999) -. , . 21

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MoCantim.v.State, 647 S.W. 2d at 100 ( Tex.Crim.App 1983 ) 8

Newton.v'.State,648.S.W. 2d 693,694 ( Tex.Crim.App 994 ) 12

Cchca.v.State,955. S.W. 2d at 92,93 (Tex.Crim.App.1984 ) 6

Rezac.v.State, 782 S.W. 2d 869,870 ( Tex.Crim.App 1990 ) 13

Richarder.v.State,832 S.W. 2d at 171 ( Tex.Crim.App 1998 ) 12

RRousseau.v.State.855 .S.W. 2d 666,673.(Tex.Crim.-App 1993 ) 7

Royster.v.State, 622.S.W. 2d 980 (Tex.Crim.App 1984 ) .7

Seanz.v.State,131.S.W.3d 43. (Tex.App.San.Antinio.2003 ) ,...-'12

Trujillo.v.State,227.S.W..3d 164 (Tex.App.Houst [1st Dist]2006 ) -t JO, .

Westbrook-v.State,29.S.W.3d 103,113 (Tex.Crim.App 2000) 8

Statutes / Penal Codes ...-.,

Art 37.08 T.C.CP 12

Art 37.09 T.C.G.P 8

Art 21.24 (a) & (b) - - - 12

§ 2.01 ....... 7

§20.01(2)West 2003 ) •• 9

§20.02(a) (West) 2003 - •• 9

§20.04(a) , •• • • -= - •• - •••• - • - 10

§6.03 (b) 10

. §1.07(5)atl34 (1985 J .... . 12

Conclusion 14

Prayer For Relief 15

Certuficate of Service 15

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STATEMENT OF THE CASE

Petitioner Magalde is Appealing lithe opinion of the 8th Court of Appeals

Appeal Number 08—12-00065-CR which affirmed his conviction March 12,2014

for the 120th Judicial District Court El Paso County,Texas for Unlawful Rest

raint ( RR4,98) CR at 147 ) A Class A Misdemeanor L . Trial NO 20110D00050-

35-120-2, Holding that the Evidence where sufficient to support the jurys

findings of guilt as to the Lesser included offense ; ( 8th ct App Brief at

page 3-7 )

STATEMENT OF FACTS

Petitioner trial bagan on January 20, 2012 during trial the complainant Ms

mslissa Maribel Ferrera testified that on the 17th of July 2010 she and the

petitioner Mr Fernendo Magalde had been dating since 2004, and had two children

(RR3, 61) On the date in question Ms Ferrera testified that she and Magalde

where at a friends house, Later in the evening they all decided to go to

a festival in San Elizario ,Texas (RR3, 69) She stated that although Magalde

was drinking alcohol she allowed him to drive her vehicle in which she one

of there two doughter rode with her and Magalde (RR3, 71 ) Once they arrived

at the Kermes festival, Ms Ferrera and :.:Magalde got in to an argument (RR3,9

SHE TESTIFIED SHE REFUSED TO GET OUT OF THE VEHICLE AND ATTEND THE FESTIVAL

WITH Magalde , Because he'd been, been drinking and appeared very ;Drunk and

she knew him to become very jealous when he's with her, Ms Ferrera.testified

that petitioner Magalde started the vehicle and begain to drive off ,she

turnned her head to the side and away from him, and thats when Magalde struck

her on Jthe side of her head (RR3,71 ) she also testified that she didn't

want to go with Magalde and started to get out the vehicle ,Because she knew

that he would continue, to hit her, (RR3,72 ) But when she attempted to get

out petitioner Magalde grabbed her by the hair, ( RR3, 71-72 ) Ms Ferrera

testified that she attempted to Call 911, on her cell phone for assistance

But', before she could dial the number Magalde took her cell phone away from

her ( RR3, 72-73 ) and began to drive toware his mother house,She testified

that as he drove he continued to grabbing her hair to prevent her from-exiting

the vehicle, Once they arrived at his mother house he told her to stay put,

while he took their four year old doughter inside (RR3,73-74 ) Ms Ferrera

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testified that she got out the vehicle and begain to run away, But petitioner

cought her and began assaulting and hitting her some more until ,his mother

came and intervened by standing between then to protect her , Ms Ferrera

testified she then went in to petitioner mother's house and got a Knift from

the kitchen in order tp protect herself,(RR 3, 74-75 ) and told petitioner

to stay away from her, at which point he got in the vehicle and left ( RR3,76)

In addition Ms Ferrera testified that she asks petitioner to give her ,her

belongings such as her Purse,Money ,ID Card and other things,^but he just drove

away, she testified that petitioner mother didn't have a phone in her house

,So she and her doughter walked about three blocks before finding a person

to whom let her use there phone to call 911 ( RR 77-79 )

when deputy from the El paso police Department arrived , she testified she

begain explaining to officer what happen ( RR3, 80 ) One of petitioner friends

dropped off her other doughters deputy then took her,,her children back to

her house in El Paso ( RR3/77«79)Ms Ferrera testified that she didn't have

keys to her house and feared petitioner would return so the deputy helped

her secure her house by blocking the front door with a sofa (RR3, 82-83)

ISSUES PRESENTED FOR REVIEW

TEE EVIDENCE ARE LEGALLY INSUFFICIENT TO SUSTAIN PETITIONER CONVICTION

FOR THE LESSER INCLUDED OFFENSE OF UNLAWFUL RESTRAINT

Petitioner challenges the opinion of the 8th court of appeals and it's evaluat

ion of his insufficiency of the evidence claim to support his criminal convict

ion, He claim that the trial court improperly submitted the charge on the

Lesser included offense,even though it was not raised by or from the evidence

presented at trial, He argues that the 8th court of appeal did not considec

the two prong test implemented by the Court of Criminal Appeals, when deter

mining whether the evidences where Legally sufficient to support his Con

viction ,and asks this Honorable Court to Grant his Petition for discretionary

Review in the interest of justice, and will demonstrate the Verdict was

so against the great weight and prepondrance of the evidence to be clearly

Footnote

1, Ochoa.v.State,955.S.W.2d.389.392-93 (Tex.Crim.App.1984 ) Cchca challenge the legal sufficient

of the evidence to support his conviction en the Lesser included offense in a Sexual Assault

case in which the court improperly submitted a charge en Sexual Assault as a Lesser to the

Agg'Sexual Assault, Hampton .v.State,165 S.W.3d at 691 (Tex.App Houst [1st Dist] 2005

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wrong and manifestly unjust,that.the Conviction cannot stand,U.S.v.Backer

720 F.2d.2033,2035.( 9th.Cir.1984 )

ARGUMENTS / AUTHORITIES

Petitioner Argues that the 8th Court of Appeals failed to review the sufficiensy

of the evidence by looking at the elements of the charging offense as incorp

orated in the courts charge to the jury, Benavides.v.State/763 S.W. 2d.587

588-89 ( Tex.App Corpus.Christi.1988) Pet Ref'd ), in its consideration

of the Legally sufficient of the evidence claim , The Fourteenth Amendment

of our Constitution houses due process protection in which theU.S Supreme

Court [has] determine requires ,that the jury must find each and every element

of the offense charged beyond a reasonable doubt, Our Penal Code , also

requires that no person may be convicted of an offense , Unless each and

every element of that offense is.proved,TEX.PENAL CODE §2.01

The record reflects that petitioner made an objection to the courts charge

on Aggravated Kidnapping (RR4, at 25-26 ) that was overruled by the trial

court,petitioner counsel argued that the trial court should not charge the

jury ,because a charge on Aggravated Kidnapping wasn't warranted, given

the circumstance of petitioner action. However the trial court submitted

and instruction on that offense as well as the Lesser included offense "Unla

wful Restraint" ( RR4 at 26-27 ) which is at issue here,He claims that the

charge was improper and. was Abuse of discretion on part of the trial court

for ignoring petitoner due process ,

In determining whether to charge a jury on a Lesser included offense a two

prong test [ Must ] be satisfied, First step requires that the lesser includ

ed be within proof necessary to establish the greater offense,Royster.v.State,

622..S.W.2d.980 (Tex.Crim.App.1984 ), The second step requires that there

be some evidences exist in the record directly [ Germane ] to the lesser

included offene,Rousseau.v.State,855 •. S.W...2d.666,673. (Tex.Crim-App. 1993 )

Both prongs must be met and applys equally to the state as well as defendant

if evidence presented at .trial will no[t] raise an issue of a lesser offense

the court need not charge the jury on the lesser included offense,, Bignall.v.

State/887 S.W. 2d.21,24.( Tex.Crim.App.1994 ) merely because it is within

FOOTNOTE

2, Hapten. 2.v.State 165.S.W.3d.691.( Tex.App-Houst. [1st Dist] 2005 Hapten challenged the legal

sufficient of the evidence to support his conviction, Based on an improper charge on a lesser

included offense ,The court agreed with hanpton the charge was improper and reversed ,Remand

hatipton conviction for Sexual Assault,

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proof necessary to establish the greater , the second prong of the two prong

test is preserved for the integrity of the jury as the fact finder by ensuring

that juror are [ Only ] instructed on a lesser included offense when the

evidences Constitutes it as a Valid alternative to the charging offense ,

Westbrook^v.State,29 S.W. 3d at. 103.113.(Tex.Crim.App 2000) Also ARTICLE

37,08 AND 37.09 T.C.CP. " which Authorize that a jury may not convict the

accused of a lesser included offense, unless the evidences reasonably justify

them in doing so.

Petitioner will no[t] challenge the first prong of the two pact test, Unlawful

Restraint, is a lesser included of the charging offense,,therefore this

Honorable court need only determine whether the second prong was satisfied

and must do so by determining ,if the record contains sufficient evidence

to support First the trial court submission of the lesser included offense

it must find that evidences show that ,If petitioner was guilty, he was

3

guilty [ONLY ] of the Lesser offense of " Unlawful Restraint", He argues

that it is no[t] enough that the jury may disbelieve crucial evidence pretaining to the greater offense ,McCantion.v.State,.647. -S-W.2d.100. (Tex.Crim.App

1983 ) the evidence must be directly germane to his guilt ,in shortbefore

4 a charge is warranted the two prong must be satisfied ^Aid.-r.lOO-iThereLmustFOOTNOTE

3, Hub the defendant .denieds comiissicn.offany., offense and.,therefore presents no evidence

eslabishing ccnrmssion of a lesser lnclueed offense IneJ is no|tj entitled a charge on

the lesser offense Bignall-v.State 887 S-W. 2d at 21,24 ( Tex.Crim-App 1994 )

-4,Magalde was not entitled to a lesser offense instruction ;nore was the state simple because

the jury may choose to disbelieve his story ,does not of itself create a right to a lesser in-

:cluded offense charge, Fraga.v-State,940 S:W. 2d 736,738, ( Tex.App San Antinio 1997 ) to hold

otherwise is tantamunt to consideration of evidence outside the record andwould be a Broad ruliing for the courts to be allowed to submit a lesser offense even those not raised marely ocuse

there is a possibilily there was only a lesser offense acnmitted

5, because the record indicates the a tine objection was made ,this error was therefore preserved for appellate review, the 8th court of appeals wtherefore err in not assigning the error in its

review of petitioner insufficient of the evidence claim under the Jackson -v.Virginia standard

Id 99.S-CT2792 (1998)

-8-
be evidence pointing directly./ to his guilt only of the lesser included offense

Jackson.v.State, 115 S.W. 3d at 326 ( Tex. Crim.App. 1991 )., the issue Is no[t]

resolved by merely determining that the crime charged includes a lesser offense

at the trial of this cause petitioner objected to trial courts instruction

on Robbery and Aggravated Kidnapping ( RR4, 4-5-13-20-23 ) during discussion

out side presences of the jury ,i.despite oral arguments trial Court overruled

thoses objections*Johnson.v.State 84 S.W. 3d at 724 ( Tex. App. Houst [1st

Dist] 2002 ) ,In order to satisfy the second prong the evidence at trial

must throw doubt upon the greater offense ,If the accussed presents no evidence

that he committed the offense 'or' presents no evidence to the contrary,and

theres no evidence that show otherwise that he's guilty [Only] of the Lesser

included offense the trial court is [N]ot under any duty to submit instruction

on a Lesser offense,Bignall.v.State 887 S.W. 2d at 21 (Tex.Crim.App. 1998 Re

gardless of who request the lesser offense instruction,the charge must no[t]

cConstitute and invitation for the jury to reach a Compromise or otherwise

unwarranted verdict as it did here,"

To warrant a charge on unlawful Restraint evidence [Must] have been directly

[ Germane] to petitioner's guilt Onl[y] of the Lesser offense,As mention

above the indictment charges petitioner with Aggravated Kidnapping Count

II under Section 20.04(a) of the Penal Code, Aggravated Kidnapping is a

complete offense when restriant is accomplished ,we're there's evidences

of the actor specific intent to prevent liberation of the Victim,by secreting

or use or threateed the use of deadly force.V.T.C-A Penal Code § 20.01(2)west

2003 ) Citing Curry.v.State,966 S.W. 2d 203 ( Tex. App El Paso 1998) Abduct

ion means to Restraint, ,Here the state was also Required to prove in order

to show the Lesser included offense of^unlawfulrLReaftraiWfe^^Had to.ishowc&r.

fiSQve-rU...•: that petitioner " intentionally ,or, "Knowingly restrains another

person Melissa Ferrera by restricting her movement without her consent,so

as to interfere substailly with her "liberty" by moving Melissa Ferrera from

one place to another "or" by confining Ms Ferrera TEX.PEN.CODE ANN § 20.02

(a)(West 2011 ) in this context Restraint is without consent ,if it is acc

omplished by "force,intimidation,or deception Id at § 20.01(1) (A)

FOOTNOTE

6,when the sufficiency of the evidence is challenge under state Law, appellate courts.measure

the evidentiary sufficiency against the elements of the offense as defiend by the hypothicaly

correct jury charge Gollihar.v.State.46.S.W. 3d.243 ( Tex.Crim.App.2001 )

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A person acts intentionally 'or' with intent with respect to the nature of

his conduct 'or' to a result of his conduct when it is his conseious objection

or' desire to engage in the conduct 'or' cause the result ,A person acts

knowingly ,or, with Knowledge with respect to the nature of there conduct,or,

to the circumstances surrounding their conduct when he or she is aware of

the conduct ,and circumstance exist that the acts knowingly or with knowledge

with respect to a result of their conduct when ..when aware that there conduct

is reasonably to creat the results^ The record reveals the complainant will-.

ingly left the friends house with Mr Magalde and one of there two doughter

to go to a festival in San Elizario,Texas Ms Ferrera,her dls^hter; rode with

petitioner Magalde who drive her vehicle ,Once they arrived there Complainant

and Mr Magalde got into an argument /Complainant then refused to get out

the vehicle, and attend the festival ,because petitioner was drunk which some

times caused a problem, because he would become very jealous when with her,

after she refused to get out petitioner started the vehicle again and begain

to drive off away from the festival, Conplainant turned her head away from

him and he struct her on the side of her head, /Complainant then decided

she dyah£;ed to exist the vehicle ,although it was moving , But petitioner

grabbed her hair pulling her back to provent her from jumping out the moving

8

vehicle, ConplalilaBtn:attempted calling 911, Bat her phone was taken away from

her, petitioner drove to toware his mother house/once there he told complainant

to stay in the vehicle while he took their four.- year old doughter inside,But

complainant got out the vehicle and beaginto run away but was stopped ,and

further assaulted by petitioner until he 's mother came out and stood betweenthen to protect complainant from being further hit or assaulted by Magalde

complainant when got a knief from magalde mother house came back told him

to leave her along, he got in the vehicle and drove it away, ,

from this evidence ,its clear that a charge on Unlawfull Restraint wasn't

warranted.;..?^", that trial court clearly abused it's discretion submitting

it,9 Trujilo.v.State, 227 S.W. 3d at 164,168 (Tex,App-Houst [1st Dist]2006)

it is for this reason the evidence is insufficient to support the jurys verdict

and finding that if he was guilty ,h'e was guilty only of the lesser offense ,.,

FOOTNOTE

7, Tex Penal Code § 20.02 (a)

:8, Texas Penal Code § 6.03(b)

9, The jury could no[t] have reasonable concluded that petitioner intentionally or Knowingly

restrained.1'; i Ferrera, simply, cause he pulled her hair

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petitioner Constitutional rights to due process where effected by this error

while the record indicates no specific objection other then to the courts

charge on Kidnapping (RR4,23-24-27 ) the sufficiency of the evidence is

measured by the elements of the offense as defined by a hypothetically corr

ect jury charge under the jackson standard, the reviewing court are to review

evidences in the record in the light most favorable to the jurys verdict,and

determine whether a rational jury could have found each element of the offense

was proven beyond a reasonable doubt,Jaskcon.v.Virginia,443 U.S-307,318-20,99

S.CT,2781,2788-89,61 L.Ed,2d 560 (1979) the court recognizes the jury as

the sole judge of the weight and credibility of the witness testimony as

the ultimate fact finder, and the reviewing court presumes that the jury

resolved any conflict in the evidence in favor of the. verdict,so long as

such resolution is rational, the appeals court will no[t] defer to the resolut

ion. Brooks,v. State/323 SrW- 3d at 894-95 (Tex.Crim.App 20009 ) ,

A jurys verdict and Judgment will be set aside ,if the evidence supporting

guilt is so obviously weak 'or' the contrary evidence is so over whelmingly

it out weighs the supporting evidence, Petitioner asks the court to look

to the charge and how it improperly instructs juror, First it doesn't charge

the Aggravated. Kidnapping in Count II of the indictment as [COUNT],Rather

it instructs juror to find petitioner guilty in paragraph B, the following

Error Occurred after it instruct then to find Magalde guilty by signing

form A, , it go's on to tell them to proceed to consider ];.p§iV.Sgraph B, which

lis" Aggravated Kidnapping charge COUNT II, unless you so find beyond a reason

able doubt or if you have a reasonable doubt thereof ,you will find the

defendant Fernando Magalde Not guity of Robbery as charge in the indictment

signing (verdict form B )Then next proceed to consider paragraph B,Paragraph

B, of the charge Reads the following ,

if you from the evidence beyond a reasonable doubt ,find that on or about

the 17th day of July 2010, in El Paso County,Texas the defendant Fernando

Magalde did then and there intentionally or knowingly abduct another person

Melissa Ferrera /Hereinafter referred to as the Complianant^iby secaeingc.

" or" holding the complainant in a place were the complainant was notlikely

FOOTNOTE —••

10/in Kieschnick.v.State,911 S.W. 2d 156,161 (Tex-App waoo.1995 ) The Court of Appeals concluded

that although kieschnick^did not raise an objection to the charge error raised en appeal .for

first time,it nonetheless ccncluded it had no choice, But to Reverse Remand the judgment

11/ The standard of review is the sane for both direct and circumstantial evidence cases,Kutzner .v.State,994.S.W.3<J.180,184 (Tex.Crim.App.1999) the reviewing court is not to resolve any conflict of fact,weigh any evidence,or evaluate the credibility of any witnesses,

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to be found, to-wit a Motor vehicle,with the intent to inflict bodily injury

on the complainant,then you shall find the defendant Fernando Magalde guilty

as charged in the indictment by using (Verdict form C)>Then Nsxt proceed

to consider paragraph C, Unauthorized use of a Motor vehicle,' ..Unless you

so find beyond a reasonable doubt or> if you have a reasonable doubt thereof

or if you are unable to agree, Next proceed to consider "Unlawfull Restraint'.

... Now /if you find from the evidence ^beyond a reasonable doubt that

on or about the 17th day of July 2010 in El Paso County/Texas, the defendant

/Fernando Magalde did and there intentionally or knowingly Restraint another

person, Melissa Ferrera then you will find the defendant guilty of Unlawful

Restraintiby using ( Verdict form D) then next proceed to consider paragraph

C, Unauthorized use of a Motor Vehicle ) ..--Unless you so find beyond a

reasonable doubt ,or if you have a reasonable doubt thereof youwill find

the defendant Fernando Magalde ,Not guilty of All Charges related to the

Aggravated Kidnapping by using (Verdict form E ) then Next proceed to consider

paragraph C, (Unauthorized use of a Motor! Vehicle )

As the court is able to see , the jury instruction improperly included the

term or"gRhf"asa" paragraph to charge the commission of the offense's ..Rather

then using the term ( COUNT) Which is what is used to charge an offense Citing

Seanz.v.State/131 S.W- 3d at 43 ( Tex. App San Antinio 2003 ) And ARTICLE

21.24(b) of the Texas Code of Criminal. Procedure^eheiphrase paragraph is used

to submit the Aggaravte Kidnapping offense shown in Paragraph B, of the courts

charge which does no[t] go on to instruct juror to next consider the offense'

of Unlawful Restraint as a Lesser included of COUNT II as in[ PARAGRAPH

1 or 2 Etc, Here Unlawful Restraint is improperly misjoi*id,And therefore

the paragraph that charged Aggravated Kidnapping charges more then one offense

Holcamb.v.State,745 S.W.. 2d at 903 ( Tex. Crim.App 1983 ) a fair reading

of Article 21.24(a)(b) along with Art 3.01,3.02.x>f the Penal Code,separate acts

or offense of a different penal statute may be charge in a single indictment so

long as those offense are charged in separate COUNTS/ No paragraph may charge

more then on[e] offense, Here the charge does just that /Therefore Constituts

an invitation to the jury to come to a compromise or otherwise unwarranted

verdict ( Model Penal Code § 1.07(5) at 134 (1985) Article 37.08 T.C.C.P

FOOTNOTE

12Richarder.v.State,832 S.W. 2d at 171, ( Tex.Crim.App 1998 )

13,even a pretrial failure of the charge to state the correct law of the offense to

the facts of the case infringes on the accuseds federal and State Constitutional rights to

due procass,due course of Law Newton.v.State,548 S.W. 2d 693,694 ( Tex.App 1983 )

-12-
petitioner claims that we, the Reviewing Court should Reverse and Remand

the decision of the 8th Court of Appeals and its /.holding that the evidence

where legally sufficient to sustain his conviction, Although no specific

objection was made ,The 8th court of appeals Erred in Not assigning Error

to the Erroneous flaws in the courts jury charge as part of its Judicial

Authoiritysuv:' granted power ,Barnas.v.State,644 S.W. 2d at 1, Rezac.v.State 782

S.W. 2d 869,870 ( Tex.Crim.App 1990 )in evalating his claim on appeal.

Since the evidence is measured for sufficiency; by looking at the indictment

as incorporated in the courts charges to the jury , Benavides.v.State,763 S.W.

2d .587,588-89 (Tex.App Corpus Christi 1988 pet Ref'd) The:ireviewing':GouifkK

examine the whole charge and consider the workable relationship between the

abstrack part of abstract law to the facts of the case, Griffith.v.State 976

S.W. 2d 686,690 ( Tex.App.Tyler pet Ref'd ) and should ultimalely asks whether

a nautral review of [ all ] the evidence both for and agains't the finding

demonstrates proof of guilt is so obviously weak as to undermine confidence

in the jury's determination,as the fact finder^the jury may use common sence

and apply common knowledge?observation, and experience gained,in the ordinary

affairs of life, when giving effect to the inferences that may reasonably

13

be drown from the evidence.

The jury is Bound by the evidences and should therefore be limited to those

included offenses in which a reasonable view of the evidence will sustain.,

as such juror or no[t] to be free to pick and choose what offense the accused

should be found guilty of—and cannot be given the freedom to legally convict

the accused of a lesser included offense merely out of sympathy or for the

purposes of reaching a verdict , the charge here on /"Unlawful Restraint" only

invitated juror to more or less come to a compromise and Unwarranted verdict

after reviewing the evidence in the light must favorable to the verdict,This

court should agree with petitioner that, Based on the charged error no rational

trier of reasonable fact finder could have found the essential elements of

Unlawful Restraint beyond a reasonable doubt / even if the proof of guilty

although appears adequate , .if. taken alone it is greatly ouifc'. weight by the

contrary proof so that the beyond a reasonable doubt standard could not have

been met, Hopper.v.Evans,456 U.S. 605,120 S.CT 2049,72 L.Ed.2d 367 (1982)

FOOTNOTE

Tbe due process requires that a jury only be instructed en a Lesser offense when the evidence

raises the issue Article 36.14 V.C.C.P PLACES A DKTY on the trial judge to prepare a correct

charge Lcyle.v.State,631 -S.W.2a.732-738( Tex.Crim.App 1982 )

-13-
when the state fails to prove each and every element beyond a reasonable

doubt ,if a challenge to the sufficiency of the evidences is sustained /petit

ioner would be entitled an Acquittal /Jordan.v.State,639 S.W. 2d at 477,478

( Texa.Crim.App.1982 ) Also See Burnks.v.United States,347 U.S,1, 96 S.CT,2141

57 L.Ed .2d.l (1978 )

In Brinage.v.State,918 -S.W. 2dat 644,475,76 ( Tex.Crim.App.1994 ) The court

of Criminal Appeals held that the state must prove that a Restraint was Comp

leted and that the petitioner evidenced a specific intent to prevent liberation

by either secretion or deadly force, grabbing the Complainant by the hair

and pulling her back to prevent her from jumping out the moving vehicle ,in

an efford to prevent her from possibility being hit ,ran over by another

vehicle and Seriously hurt, and telling her to stay in the vehicle after that

reached his mother house doesn't qualify as evidences preventing her liberat

ion by secretion or deadly forced

For theses reasons delineated above petitioner would agpesj that the evidence

were leagally insufficient for the 8th court of Appeals to sustain his convi

ction

PRAYER FOR RELIEF

Wherefore ,Premises Considered petitioners prays that his Judgment of the

120th District Court,and The Opinion of the 8th Court of Appeal .V/be Reversed

and Remanded with an order for the trial court to enter a Judgment of Acquittal

FOOTNOTE

RESPECTFULLY Submitted

Fernando Magalde

TDCJ-ID NO 01828858

McConnell Unit

3001 S,Emily DR

Beeville Texas 78102

H/ [0 / 2015

14, in re winship 397 U.S 358,,90 S.CT 1068,25 L,Ed 368 ( 1970 ) Ths offense therefore must be

proved beyond a reasonable doubt

-14-
CERTIFICATE OF SERVICE

I,Fernando Magalde ,hereby certify that a true and correct copy of the fore

going Petition for Discretionary Review was mailed to the clerk of the Court

of Criminal Appeals P.O.Box 12308 Captol Station Austin,Texas 78711,by placeing the same in the Mail Postage Box her at the McConnell Unit 3001 S,Emily DR

Beeville,Texas 78102 ,0n the dayi$fJ£LL_ and date of 10 2015

15

Respectfully. Submitted

#01828058

McConnell Unit

3001 S,Emily DR

Beeville,Texas 78102

4 / f0 / 2015
Case No.

(The Clerk ofthe convicting court will fill this line in.)

IN froCOURt OF-CRIMINAL: APPEALS-OF TEXAS '

APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

i,.viTM. Fernando Magalde NAME: •— _—

DATE OF BIRTH*

PLACEDCONFINEMENT: McConnell Unit

tbCJ-PD;3StJMBER:- ;01828Q5{j ;/. -. :SID/NtJMBER::; :.

(1) This application concerns (check all thai/apply):

D a convictei: • • parple;

P a sentence, • ;)^n4ator^:rsuperivisidn'

D time credit 0 out-of-time appeal or petition for

discretipnary review

(2) What district court entered the judgment of the convictionypu/warit reiieffjppm?

(Include the court number and county.)

120th District Court,El paso County Texas

(3) What was the case number in the^trial,court?

20100D06141

(4) What was the name t»f thfe trial judge?

Maria Salas-Mendoza,

Effective: .January 1, :20M

Rev 01/14/14
(5) Were you represented by counsel? If yes, provide theattorney'sijiame:

Robert Riley & Jaime Gangara

(6) What was thedate thai;the judgment was entered?

January 25,2012

(7) For what offense were you convicted and what was the sentence?

Unlawful Restraint ___•'-

(8), Ifyou were sentenced on more than one count of an indictment in the/same cnurt at

the same time, what counts were,you convicted of and what was the sentence in each

count?

N/A

$| What wasthe pleaypu entered? (Check one.)

O guilty-open plea D guilty-plea bargain

• not guilty Q nolo contenderelno contest:

Ifypu entered different pleas to counts in a multi-count indictment, please;explain:

... . N/A

(10) What kind of trial did you have?

• no jury H jiii^foi»guiltand punishment

D jury for guilt, judge for punishment

Rev. 0:1/14/14;
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?

N/A

(12) Did you appeal from the judgment of conviction?

EEJ yes- p. no

If ypu did appeal, answer the following questions:

(A) What court ofappeals did you appeal to? 8th Court of Appeals

(B) What was the case number? 08-12-Q0064-CR _ ;

•(C): Wereypu representedby: counselpn-appeai?; Ifyes, prpwde^the^attprney'fr name:

M,Clara Hernandez & Penny Lee,Andersen

(D) What was the decision and the date ofthe decision? Affirmed March 28,2014

(13) DkI ypu file a petition for disCT^ Court of CriminalAppeals?;

HI yes P no;

ifyon did file a petition for discletiohatyrwiew, answer the following questions:

N/A •(A) What was the case number?;

•(B) Whatwa® the decision andthe diatepf the-decision? , ; N/A.

(14) Have you previously filed an application for a writ of habeas corpus under Article

11.07 of the Texas Code of Criminal Procedure challenging this conviction?

fi ;yes .•; iio

Ifyou answered yes, answer the following questions:

(A) Whatwas the CourtofCriminal Appeals' writ number? WR 82-561-01

Rev. fit/14/14:
•(B) Whatwa^the:decisionahd.^e,dateoftherdecisiori? January 2,2015,

(G) Please identify the reason that the current claimsfwere not presented and could

ript have been presented pn ypur previous: application.

Because the Letter that was sent to the El Paso. Public defender office

requesting them to file for and extension of time was not transfered

to the court of appeals ,due to a clerical error which caused the

time period to expire, A Motion seeking out-of-time PRD was denied

by the court of criminal appeals , Jfcine 16,2015 A Hebeas Corpus Appliction was gramted on Janua,ry,,,,,21;12015""'granting- petitioner* H'-TJrian'cir'to

file this out-of-time petitioner for discretionary review now

now before this Honorable Court

(15) Dpypu currently have any;petition: or appeal pendingin any other state pr federal

.court?- .

P:-yess Hi no;

If you answered yes, please provide the name of the court and the case number:

N/A J

(16) If you are presenting a claim for time credit, have you exhausted your

administrative remedies by presenting your claim to the time credit resolution

system of the Texas Department of Criminal Justice? (This requirement applies to

any final felony conviction, including state jail felonies)

:• yes! B no.

If you answered yes, answerthe following questions:

(A) What date did you present the claim? .. . __

(B) DidypnrjBcMve a decision and, if yes, what was the date ofthe decision?

N/A

Ifyou answered no, please explain why vou have notsubmitted your claim:

Rev. 01/14/14
N/A

(17) Beginning on page 6,state concisely every legal groundfor your claim that you are

being unlawfully restrained, and then briefly summarize the facts supporting each

ground. You must present each ground on the form application and a brief

summary of the facts. Ifyour grounds and briefsummaryofthefacts have not been

presented on theform application, the Courtwill not consideryour grounds.

Ifyou have more than four grounds, use pages 14 and 15 ofthe form, which you

may copy as many times as needed to give you a separate page for each ground, with

each ground numbered in sequence. The recitation of the facts supporting each

ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law ifyou want to present legal

authorities, but the Cpurt will not consider grounds for reliefset out in a

memorandum of law that were not raised on the form. The citations and argument

must be in a memorandum that complies with Texas Rule of Appellate Procedure 73

and does not exceed 15,000 words if computer-generated or 50 pages if not. If you

are challenging the validity of your conviction, please include a summary of the facts

pertaining to your offense and trial in your memorandum.

•5:

Rev. 0M4-Z14
GROUND'ONE*' Tne evidence is insufficient to support the jurys verdict

and finding of guilt for Unlawful Restraint

FACTS SUPPORTING GROUND ONE: The 8th court of Appeals did not in

there Review of the sufficiency of the evidence to supporting the jurys finding

considerthe Error in the courts jury charge on the Lesser included offense

that was no[t] warranted by or from the evidences presented at the trial

of this cause and did not take into consideration that Unlawful Restraint

could not have been the results when the complainant witness in this case

admitted that she was together with petitioner at a- friends house before

they all decided the leave and attend the festive ,The complainant rode with

petitioner in her truck to the festive, once they arrived there she refused

ta_ge£_au£_ner_r.ruckJ.pei:ir.ianer_srarted—vehicle In whichshe One 51 fjiere

doughter rode along in and begain driving off ,at some point complainant

truned away from petitioner and according to the complainant petitioner struck

her' on' the'side of her head, at which point she then decided she wanted to

give out the moving vehicle , Once she attempted to do so./petitioner in

and act to prevent complainant from being ran over or hurt by a passing vehicle

when petitioner begain to drive toward his mother"house the complainant stated

he continued pulling her by the hair, while driving to prevent her from exiting

once that arrived at his mother house ,complainant stated petitioner told

her to stay put , while he: took their tour year old doughter inside, But

she didn't she got out the vehicle and begain running away ,But was stopped

petitioner mother came out the house and got betweeothe two of them to prevent

petitioner for assaulting her , at which point tne complainant-Went Inside

his mother house got a knift from her kitchen and returned ,then told petition

er to stay away from her , at which point petitioner simply got in the vehicle

-a/id drove it away , from this petitioner was charged in a three count indictment

which Robbery Count I Aggravate Kidnapping Count II And Unlawful use of

a M<btor Vehicle Count II after argument the jury was charged on the same

with arid •additional - oftense of Unlawful Restraint—ay a lessei included

chairs^ of the aggravated Kidnapping ..the jury Acquitted him of Count

I,II and III, However the jury found him to be quilty only of a lesser offense

Ondirect Appeal to the 8thcourt of Appeals /Petitioner asserted a

claim that alleged the evidence where insufficient to support ;the jurys verdict

the 8thc court of appeals disagreed with petitioner assessment of the claim

and in ah'd unpublished opinion affirmed tne judgment Of the trial courL ,

in this petition for discretionary review petitioner is asking the court

to look at the improper way that the jury charge instructs juror ,and the

way the 8th Court of appeal over looked this issue and Errenous flaws in

the court charge when conducting there review of the legal sufficieny at issue

now before this Honorable Court Se^ Memorandum at pages 1 -15

Rev. 01/14/14