IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

Cause No. PD-1352-14

PETITION FOR DISCRETIONARY REVIEW 

# RECEIVED ^ '""•' OFCRIMINALAPPEALS 

## DEC 302014
@J£CGf»*atG!er5<



## FILED IN 

# ALFREDO HOLGUIN. PETITIONER C0URTQf:CR|M|NAL^^

V. 

## CEC 312314

THE STATE OF TEXAS, RESPONDENT 

### AbelAcosta, Cierk

FROM THE 8TH COURT OF APPEALS: CAUSE NO. 08-00253-CR: Affd 9.12.14; FROM THE 243RD DISTRICT COURT OF EL PASO COUNTY, TEXAS TRIAL CAUSE NO. 20120D01334' DECIDED 8.1.12: Hon. Bill D. Hicks, Judge



# ^ XAlfredo Holguin, Pro Se

TDCJ# 1809852 McConnell Unit 3001 S. Emily Dr. Beeville, Texas 78102-8583 361.362.2300 (ph.) 361.362.3011 (fax)TABLE OF CONTENTS

IDENTITY OF PARTIES
INDEX OF AUTHORITIES
STATEMENT REGARDING ORAL AGRUMENT
STATEMENT OF THE CASE
STATEMENT OF FACTS
STATEMENT OF PROCEDURAL HISTORY
GROUNDS FOR REVIEW
ARGUMENT
PRAYER FOR RELIEF
APPENDIX
DELARATION
CERTIFICATE OF SERVICE 11 iii iv iv iv
1.
1.
2.
13.IDENTITY OF PARTIES Alfredo Holquin, Petitioner Pro Se TDCJ# 1809852 McConnell Unit 3001 S. Emily Dr. Beeville, Texas 78102-8583 361.362.2300 (ph.) 361.362.3011 (fax)

El Paso County District Attorney 203 El Paso County Courthouse 500 E. San Antonio El Paso, Texas 79901 915.546.2059 (ph.) 915.533.5520 (fax)

State Prosecuting Attorney P.O. Box 13046 Austin. Texas 78711-3046

liINDEX OF AUTHORITIES
U.S. Constitution 14th Amendment iv
Texas Constitution Article 1§ iv
Texas Penal Code 2.01 3. 7.02 8. 15.02 19.02 9. Texas Code of Criminal Proc. 1.04 .3. 1.05 3.

Texas Cases Allen 249 S.W.3d 680 (Tx. App.-Aus. 2008) 5. Brooks 323 S.W.3d 893 (Tx. Crim. App. 2010) 6. Ex Parte Adams 768 S.W.2d 281 (Tx. Crim. App. 1989) 12. Ex Parte Bush 166 Tx. Cr. R. 259, 288 (1958) 13. Ford 571 S.W.2d 924, 926 (Tx. Crim. App. 1978) 6. Fraga 276 S.W.3d 55 (Tx. App.-ELP 2008) 10. Garrett 220 S.W.3d .926.(Tx. Crim. App. 2007) 2. Gonzalez 296 S.W.3d @630 9. Guevara 152 S.W.3d 45, 49 (Tx. Crim. App. 2004) 2. King 594 S.W.2d 425 (Tx. Crim. App. 1980) 10. Leal 303 S.W. 3d 292 (Tx. Crim. App. 2009.) 2. Reedy 214 S.W.3d 567 (Tx. App.-Aus. 2006) 6. Ruiz 579. S.W.2d 206, 209 (Tx. Crim. App. 1979.) 9. Quitta 808 S.W.2d 636, 641 (Tx. App.-C.C. 1991) 10.
Federal Cases 69£ F. Supp. 741 (S.D. Tex. 2010) 7. Burks 98 S.Ct. 2141 (1978) 8. Greene v. Massey 98 S.Ct. 2151 (1978) 2. Jackson 99 S.Ct. 2781 (1999) 6. Rosemund No. 12-895 (S.Ct.) Decided 3.5.14 9. U.S. v. Gore 636 F.3d 728 (5th Cir. 2011) 2. Haines v. Kerner 92 S.Ct. 549 (1972) 13.

inSTATEMENT REGARDING ORAL ARGUMENT

Petitioner does not seek oral argument.

STATEMENT OF THE CASE On September 20, 2005, Petitioner, Alfredo Holguin (hereinafter referred to as petitioner/Holguin), was indicted in cause no. 20050D04436 for the mur der of Mark Anthony Cedillo, alleged to have occurred on or about October 6, 

### 2002. (CR 3)1 On March 8, 2012, the origional indictment was dismissed, and petitioner was reindicted, in cause no. 20120D01334 for the capital murder of Mark Anthony Cedillo. (CR 69, 73). On August 1, 2012, a jury found petitioner guilty as charged. (4 RR 13: 6 RR 5). Petitioner was sentenced to life impri sonment. (6 RR 8). Petitioner filed notice of appeal on August 1, 2012, and a motion for new trial on August 3, 2012. (CR 152, 172). The trial Court's certification of Defendant's Right to appeal was filed on August 1, 2012. (CR 107) Petitioner appealed to the 8th Court of Appeals, and filed his brief on May 9, 2013. The 8th Court of Appeals affirmed the trial Court's judgment and rendered its opinion on September 12, 2014.
STATEMENT OF THE FACTS The facts of this case are that petitioner was convicted in violation of his constitutional protections. The State utilized impermissable presumptions, and a defective jury charge, in conjunction with faulty witness identification and hearsay testimony to obtain a conviction in conflict with his Due Process 

### rights guaranteed by the U.S. Constitution and Texas Constitution. fn.l References to Clerk's Record are noted as CR then the document number. References to the Reporter's Record are noted as RR begining with the volume number RR followed by the corresponding page number.

ivSTATEMENT OF PROCEDURAL HISTORY Petitioner was indicted March 8, 2012 for Capital Murder. Petitioner 

### proceeded to jury trial in the 243rd District Court of El Paso County, Texas on June 13, 2012 in Cause No. 20120D01334. Petitioner was found guilty on 

### August 1, 2012. Petitioner filed notice of appeal on August 1, 2012 to the 8th Court of Appeals. The 8th COA Affirmend the trial court's decision on September 12, 2014.

Cause No. PD-1352-14
§ 

### ALFREDO HOLGUIN, IN THE SUPREME JUDICIAL Petitioner Pro Se § S DISTRICT OF THE TEXAS V" § COURT OF CRIMINAL APPEALS 

### THE STATE OF TEXAS AT AUSTIN TEXAS § PETITION' FOR DISCRETIONARY REVIEW PURSUANT TO TEX. R. APP. PROCr. 68 et.seq.
TO THE HONORABLE JUSTICES OF THE COURT: 

### Now comes, Alfredo Holguin, Petitioner Pro Se, and presents this his pet ition for discretionary review, seeks relief for the various Constitutional 

### infringements under due process and due course requirements of the United States and Texas constitutions- Herein, petitioner(Holguin) would respectfully show the Honorable Court the following:



### In reviewing the petitioner's cause, he humbly seeks the Court to take judical notice of the following facts: 

### 1) State's "eyewitness" to a kidnapping failed/refused 

### to positively identify petitioner (Holguin) as perpe trator of any crime, (see 8th COA op,, p. 7, fn. 8 &:. 9). in Appendix. 

### 2) Benito Holguin (Benito)- Petitioner's cousin, was charged with the offense for which petitioner was on trial, however, 

### never prosecuted in a court of law having jurisdiction. Benito died on August 17, 2009.. Charges against Benito for the murder of Cedillo and previous murder were dismissedby the 346th Dist. Court on Januaury 28, 2010. (see Exhi bit A & B in appendix). 3) Indictment before the jury a petitioner's trial on themerits fails to include any reference to Benito as coactor or co-conspirator, (see indictment, exhibit C, as read to jury on July 30, 2012: 4 RR 12 - 13). Pursuant to the law of parties, Tx. Pen. Code 7.02, in the charge to the jury the Court permits the jury to find Holguin guilty based on the acts purportedly committed by Benito for which he never stood trial and the facts were never legally developed, (see jury charge, p. 4 in appendix, 5 RR 58-59). The jury charge permits the jury of the petitioner to find facts regarding the acts of Benito related to the death of Cedillo, can convict petitioner. However, neither the State nor the defense had the opp ortunity, to impeach nor cross-examine Benito due to his death. 4) The State seeks to advance the testimony of Det. Pantoja to support the inconclusive testimony of Salcido whose statements the day of the crime are directly in conflict with trial testimony. A hearsay objection was reaised at trial, (see 4 RR 120-121): also (10.6.02. statement by Salcido teken by EPRD & 10.24.02 statement by Salcido taken by EPPD in appendix, exhibits F & G)).

II. Petitioner argues that as a Due Process requirement, the State must prove beyond a reasonable doubt each and every element of the alleged offense to ob tain a conviction in the State of Texas and the United States, see U.S. v. Gore 636 F.3d 728 (5th Cir. 2011). Identity of the actor is a required element of
a crime, see also Greene v. Massey 98 S.Ct. 2151 (1978): Guevara 152 S.W.3d 45, 49 (Tx. Crim. App. 2004). In the case at bar, the State in its case-in-chief creates an impermissable/mandatory presumption that Benito was responsible for the alleged kidnapping of Cedillo on October 6, 2002. The State is required to prove that Holquin was the actor, see Leal 303 S.W.3d 292 (Tx. Crim. App. 2009.). It is undisputed that these presumptions are unconstitutional as they relieve the State of their burden of proving.every element of the offense beyond a rea sonable doubt, see Garrett 220 S.W.3d 926 (Tx. Crim. App,. 2007). Here the State, via the law of parties, attempt to connect Holguin to Benito because of theirfamily relationship (cousins). The testimony before the fact finder is this:

NO WITNESS IDENTIFIED HOLGUIN WITH ANY REASONABLE DEGREE OF CERTAINTY THAT HE
WAS IN FACT THE ACTOR OR CO-ACTOR OF THE OFFENSE FOR WHICH HE WAS ON TRIAL. Evidence that Holguin's father's vehicle may have been used in the alleged offense without more creates an unfairly prejudicial presumption that Holquin was the driver. It is entirely reasonable that a vehicle is not always oper ated by its owner. Although the jury can disbelieve testimony of a witness, here, Det. Pantoja not Holguin testified that Holguin claimed the vehicle in question was stolen on 10.6.02 sometime posterior to his crossing into the United States, see Det. Pantoja's testimony (4 RR 126-129). It should be not ed that the registration information on the mexiean vehicle was improperly authenticated according to the Tex. R. of Evidence 902(3). Det. Pantoja merely commented that he could not find any records regarding the stolen vehicle (4
RR 129). That does not mean it was not true..Under .cross-examination he reveales that he has little awareness of the mexiean authorities policies/proce dures regarding vehicles. (4 RR 143, 144). It must be remembered these are facts 

### purported by the State's witnesses'. Which leaves the fact-finder in the posit ion to.dis believe the State's position regarding the facts. Irregardless of 

### how the State attempts .to muddy the waters, the required element of identity is unproven in the record, therefore, not before the fact-finder, rendering their resolution of the facts unreasonable.. Reasonableness is the standard above which the State, must exceed. If a reasonable determination could be made, then the State has; note met itsburden under the law. see Tx. Pen. Code 2.01; Tx. Code Crim. Proc. Art. 1.04, 1.05. 

### Here any connection infered by relationship, without more, is highly prej udicial, and irrelevant. In no instance of any witness either prior to nor at 

### trial can the State get more than a "likeness" identification of Holguin. 1. Det. Pantoja was not an eyewitness to a crime;2. Salcido on 10.6.02 describes the actor of the kidnapping as 26-27 y.o., 5'9", and about 190 lbs. with short black hair, mexiean male. The driver was described as a heavy set hispanic male po ssibly having long hair. Exhibit F in appendix. There is no record of any identification made on 10.9.02. On 10.24.02, in the 4th photo array in pos. no. 3, only strongly resembles the driver. Exhibit G in Appendix. At trial some 10 years later testifies he has a vague recollection of photo arrays and dosen't remember much of anything else. (4 RR 28, 30, 35., 40, 42 — cannot positively identify Holguin as driver): 3. Carrizal 10.6.02 makes an identification of a "bigger male" weighed about 250 lbs. (hispanic), and was taller than other which was about 5'10"-5'11". At trial (4 RR 65) could not describe the "guys". And at (4 RR 68) dosen't remember any specifics: Exhibit H in app endix . 4., Herrera on 10.6.02 - Heavy set hispanic male, 5'11", about 250 lbs., black hair collar length, ends curled, had dark complexion, no facial hair noticed. This person was the driver; At trial could only identify the driver as "heavier" than the passenger and seemed to be older. (4 RR 84). No other memory; Exhibit I in appendix. 5. Dominguez on 10.6.02 no description of actors, and at trial only testified as to description of vehicle. Exhibit J in appendix. 6. Villareal on 10.6.02, no description of actors, exhibit K 

### in appendix, and at trial (4 RR 99) could only describe the hair of the driver as "...wavy, curly hair." No other testimony by a State's witness went to, nor could establish bey ond a reasonable doubt that Holguin was either the driver or some other parti 

### cipating actor/co-conspirator in the kidnapping/murder of Cedillo. It is, however, reasonable that without any further degree of certainty 

### that the above descriptions could apply to a vast number of the individuals in 

### El Paso, Texas or Juarez, Chihuahua, Mexico. In Salcido's identification of 

### Benito claiming he was actor to the kidnapping, gives no creedence to an infer ence that Holguin was the driver, thereby a co-actor. One might infer that because Holguin's vehicle was present he was present, however, it is also reaonable to infer that Benito had access to Holguin's vehicle. Holguin did

4.report the car stolen, this fact is not disproven. Holguin was at a baseball game in Juarez, this fact is not disproven. Tracking the State's position it would also hold true that an individual would be held responsible for say an act by a valet while unknowingly at some engagement, especially provided des criptions of the driver were somewhat similar or resembled the owner of the vehicle. Is that a possibility; sure. Is it proof beyond a reasonable doubt,
far from it. The relationship, even circumstantially, does not promote acts related to crime. Benito was never afforded due process regarding whether or not Salcido's 

### allegations are true. The State bolsters its position regarding Benito's all 

### eged acts on the fact he's deceased and cannot rebut the allegations. The State utilizes this to Holguin's detriment. Petitioner is further, denied the opportu 

### nity to examine and/or impeach Benito and is therefore effectively denied his right to confront his accuser (by way of the law of parties), and cross-exa mine/impeach witnesses against him, a due process violation. Foe these facts and reasons Holguin, petitioner Pro Se, respectively seeks resolution of this unresolved constitutional issue. De minimus the law 

### requires review, de maximus, he is entitled to. a reversal and acquittal.

III. 

### Petitioner would argue that regarding whether the evidence was legally 

### sufficient to support the verdict, the Court of Appeals although applying the 

### proper standard of review, misapplied the facts to the law and/or legal pre cedence. In the Court's own opinion (f p. 7, states emphatically that the State's 

### witness. Salcido failed or declined to provide an identification of Holguin as the driver on 10.6.02, 10.24.02 or at trial. It is well known that a conviction 

### cannot be had by stacking inference upon inference, see Allen 249 S.W.3d 680 (Tx. App.-Aus. 2008). Here, it is also well established that a jury may not reasonably infer an ultimate fact (identity) from meger circumstantial evide5.nee that simply raises a number of inference, none more probable than another, see Reedy 214 S.W.3d 567 (Tx. App.-Aus. 2006). Holguin argues that while the reported presence of his vehicle, albeit reported stolen, does not without more establish beyond a reasonable doubt he was the driver, which the State is slated to prove. Proof consisting of only strong suspicion or mere probability is insufficient under the Jackson 99 S.Ct. 2781 (1979); Brooks 323 S.W.3d 893 (Tx. Crim. App. 2010) standard; also Ford 571 S.W.2d 924, 926 (Tx. Crim. App. 1978). It is the logical force of the evi dence, and not the number of links, that supports a fact-finder's verdict. Without some evidence to exclude equally reasonable hypothesis that Holguin was at a ball game in Mexico, and his car was stolen, the Court cannot conclude beyond a reasonable doubt that he was either actor or co-actor in the cause for which he was brought to trial. When the State's, principal witness (Salcido) acknowledges it is possible another person could have been the driver, the State has not met its burden of excluding every other reasonable hypothesis ex cept the guilt of Holguin. The fact that he was not in Texas after seeking his 

### nephew to attend the celebratory day (Father's Birthday) with family, see (4 RR 126, 128), is fair minded within reason. Salcido never, between 10.6.02 up to and including trial (7.30.12), gives an idenctification more than "strongly resembles" [see EPPD witness statement, exhibit G in appendix, notarized by W. L. Lavender, Notary Public], whom he believes was driving the fleeing vehicle, 

### also, he state many times over he did not get a good look, [see EPPD witness statement, exhibit F (the day of the offense), p. 2 "I couldn't see inside very well." 4 RR 28 "....I couldn't see [through] the windows." 

### 4 RR 29 "I know they [the windows] were rolled up because I couldn't see inside because it was dirty." 4 RR 34 "Q:...are you later asked to go back to the EPPD to look at some photo line-ups?
6.A:I don't remember..." 4 RR 35 Regarding photo arrays "...I don't remember the people." "Well that's my signature, but I can't remember." 4 RR 37 Regarding 10.24.02 statement "...I just can't remember the person." Reading from 10.24.02 statement, "The individual in position no, 3 strongly resembles the guy that was driving..." 

### 4 RR 42 Regarding 10.24,02 statement/photo array, "Q: The best you could.do was say he strongly resembles the guy that was driving...? A: Yes, sir." "Q: And now if I may show you that photo again. 

### Can you positively identify the person circled in no. 3, my client, Alfredo Holguin, as the driver of the vehicle? A: No, sir." 

### The defense goes on to drive the point home, that Salcido, beyond a reaso nable doubt could not identify Holguin [see also DNA report which excludes 

### Holguin as having contact with Cedillo. Exhibit E in appendix], neither in the 

### past nor present. None of the other State's witnesses were able to build upon that description with any reasonable degree of certainty to give any reasonable fact-finder enough facts to draw a reasonable conclusion that dispelled an equ 

### ally reasonable hypothesis or disturb the facts that Holguin was at a ball game in Mexico or that his car was stolen. The judicial admissions here factually 

### and legally prevent that State from obtaining a conviction. 

### To qualify as a judicial, admission, a statement must be: 1) made in a judicial proceeding; 2) contrary to a. fact essential to the theory of recovery; 

### 3) deliberate, clear, and unequivocal; 4) such that giving it conclusive, effect 

### meets with public policy; and 5) about a fact on which a judgment for the opp 

# osing party can be based., see 6^ F. Supp.2d 741 (S.D. Tex. 2010); also Tex. R. of Evidence Rule 201(although a jury is not required.to accept a judicially no 

### ticed fact, they are not permitted to ignore it.). As previously shown, each

7.of these five points are applicable to the case at bar. At trial the defense duly requested a directed verdict on this basis. (4 RR 182 & 5 RR 28) The trial Court erred in.denying it. The Appellate Court misapplied the facts to the law and therefore denied petitioner due process. This is appropriately manifestly unjust. Holguin, Pro Se, seeks resolution of this issue. Based upon the fact application to law humbly requests reversal of his conviction and punishment pursuant to Greene 98 S.Ct. 2151 (1978) and Burks 98 S.Ct. 2141 (1978)

IV. Petitioner argues that the trial Court reversibly erred when it permitted the inclusion of a lesser than beyond reasonable doubt standard in the charge to the jury. At trial defense counsel argued that the inclusion of the Tex. Pen. Code §7.02 (see objections to the charge of the court 5 RR 28-33). Further, counsel requested the inclusion of the definition of co-conspirator for the ju ry's consideration, clearly permitted by law. The facts of the case supported the jury should be required to determine whether or not Holquin was a co-consp irator by definition due to the wording of the law of parties, which at Tex. Pen. Code §7.02(b) clearly utilizes the word conspiracy and conspirators without clearly defining the terminology within the statute. Counsel sought, unsuccess fully, to have Tex. Pen. Code §15.02 "Criminal Conspiracy" included as guiding verbage for determination under the Tex. Pen. Code §7.02 language. The 8th COA opined at p. 12-14 of their decision rendered 9.12.14, that they disagree that specific intent is required where evidence of a conspiracy advanced and murder should.have been anticipated. And claims Holguin is in correct in stateing the State is required to show such specific intent to kill Cedillo because the charge here is a result of conduct offense. Following stat

### ments.by the Court claim Tx. Pen. Code §7.02(b) eliminates "any necessity" on the part of the State to prove the appropriate mens rea for the crime in which

8.

## Holguin is charged by indictment and at trial for. citing Ruiz 579 s.W.2d 206, 209. (Tx. Crim. App. 1979); Gonzalez-296 S.W.3d 13630. Here, the indictment clearly tracks the language (para. A) of Tx. Pen. Code §19.02(b)(D; and (para. B) Id. sub. sec. (2). Therefore the defendant (Holguin) is notified by the election of the State that under the law they are required to prove the requisite intent. Without making any showing at trial of any conspiracy between petitioner and Benito, other than by facts not in evi dence and effectively conjured by prosecutors that the acts were committed by Benito, does the leap to the law of parties become introduced during the charge to the jury. This set of circumstances is in direct conflict with U.S. Supreme Court precedence set forth in Rosemund No. 12-895, decided March 5, 2014, well before the appellate Court's decision. In Rosemund it is held similarly that where aiding and abetting, which is tantamount to Tx. Pen. Code §7.02, in add ition to conduct extending to some part of the crime, the required intent ext 

### ends to the whole crime. The Court went on to hold the trial Court's jury instructions were erroneous because they failed to require that Rosemund (here Holquin) knew in advance that one of his cohorts would be armed. In charging 

### the jury to consider merely whether Rosemund (here Holguin) "knew his co-hort (here Benito, as alleged) used a firearm", the Court did not direct the jury to determine when Rosemund (here Holguin) obtained the requisite knowledge - i.e. to decide whether Rosemund (here Holguin) knew about the gun in sufficient time to withdraw from the crime, (vacated & remanded; 7-2 decision), see jury charge exhibit D in appendix. Holguin's charge negates the requisite knowing/intent by a finding in the actions of Benito, who here was not on trial and unable to contest or rebut prosecutions insertions of conjecture regarding the facts alleged, due to being deceased. It is this Holguin argues denies his Due Process by permit ting the jury to find him guilty on a lesser than beyond a reasonable doubtstandard regarding his own intentional acts or lack thereof or knowing intent but those unadjudicated acts, with no factual support, of those of another. These varying wordings between indictment and jury charge further frustrate Holguin's notice under, double.jeopardy regarding his specific charges, see King 594 S.W.2d 425 (Tx. Crim. App. 1980). It is for these unconstitutional deprivations that petitioner seeks review and relief. Holguin humbly requests this conviction and punishment be
reversed and vacated.

V. Holquin also forwards the colorable claim that his Due. Process was vio lated when the prosecution inserted materially false conjecture that prejud icially affected the outcome of his trial. Throughout Holguin's trial, pros ecutors insert material statements that are beyond their personal knowledge and outside the record. These manifestly improper statements especially those made in closing, over objection, are plain error of prosecutioral misconduct. The State is attempting to bolster its argument by injecting material state 

### ments regarding the unadjudicated alleged acts of Benito Holguin, Holguin's cousin, which are neither impeachable nor cross-examinable because they're 

### made by the State itself, not a witness, nor a "co-conspirator" which is
deceased. The 8th COA claims in Fraga 276 S.W.3d 55 (Tx. App.-ELP 2008), that, Texas courts construe the "Dead man's Rule" narrowly, citing Quitta 808 S.W.2d 

### 636, 641 (Tx. App.-C.C. 1991). Although this is typically applied in civil 

### matters, Holguin argues it should be applied here. What the State is attemp ting is a mix between accomplice witness testimony and the dead man's rule. Holguin would show, however, the legal theory is equivalent in that both instances require corroborative evidence tending to relate the subject to the 

### individual (i.e. [civil] independent statements or acts of the decedent tending
10.to relate to an act; [crim.] evidence corroborating from an.independent source 

### which is challenged, tending to relate defendant to act for which he/she is on 

## trial). In either instance, evidence need not be sufficient alone, but..must tend to confirm and strengthen the testimony of the witness and show proba 

### bility of its truth. The State does not have,convincingly corroborative evi dence or testimony of an independent source to confirm and strengthen Salcido's 

### testimony, so, prosecutors seek to do that themselves. Here, defense counsel 

### repeatedly objected, the statements.constituted speculation, conjecture, it

was assumed untrue, facts or facts not in evidence and it was conclusory. It 

### is undisputable these statements are self-serving for the State. It would be untrue for the prosecutors to claim these statements were of their personal 

### knowledge, they were not eyewitnesses, to the alleged acts of either Benito or Holguin. Here the State intends to intentionally transfer the allegations of Benito to Holguin of not only one but two unsolved murders where Benito was 

### suspect. Because he is deceased the D.A. is hell bent on getting someone, claiming the mexicans, are "in for a penny, in for a pound." There are no 

### underlying facts supporting any connection between Benito and Holguin on that 

### day. Had the border crossing showed they were together, that, would be one thing. But that is not before you, nor. was it before the jury, although, that's what the State would have you believe. It is far more believable that near the U.S./Mex. border that cars, if 

### not license plates, are stolen regularly, especially for the purpose of mas 

### king the actors of crime whether Mexican or American•initiated. Here, there 

### are various descriptions of the suspect vehicle, everything from a Ford Taurus, Crown Vic,Chevrolet Malibu, Mercury Grand Marquis, to an LTD. One witness, Ms. 

### Herrera, was however, able to copy a plate no. and relate that to police via 911. This is in no way shape or form conformation of the identity of the driver. As it turns out as Det. Pantoja learned, the vehicle was reported stolen.
11.As unconfirmed the State is hardly able to call it a lie. Nor does this pro vide any corroboration, that Benito and Holguin were together, or that Holguin 

### in any way conspired with Benito to perpetrate the acts alleged against Cedillo. Lacking any perceived or required corroboration the State induces its own con 

### jecture and conclusory statements to bolster Salcido's "strongly resembles" and others bigger mexican descriptions, which in reality describe a signifi 

### cant demographic either Mexican (Juarez) or Mexican/American (El Paso) populaion. Prosecutors statements include as example: 4 RR 17 " officers find evidence that points to ...Alferdo Holguin as culprits of this murder." 

### 4 RR 18 "Benito Holguin being killed in the violence (drug) in Mexico." 4 RR 81 "you cannot just look at one:—one piece of evidence, one statement made and say that you can't find some body guilty of capital murder." 

### [Actually solitary statements, especially suppressed ones, can require an 

### acquittal, see Ex Parte Adams 768 S.W.2d 281 (Tx. Crim. App. 1989)3. "They committed this orime almost pretending or thinking that it was in Mexico, —" 4 RR 82 "..., to get people to come in, give statements, swear to them because when we're stuck in a sit uation—" 4 RR 84 "They give a general description that coincidently is dead on to the description of Alfredo Holguin..." 4 RR 86 "There's no doubt in my mind that its the same person who kidnapped Mark." 

### [Repeated remark & objection (3 4 RR 87] 4 RR 89 "They give a description of the car that matches the defendant's car dead on." 4 RR 91 "He's hiding in Mexico." 4 RR 93 "...Alfredo Holguin is guilty because he is the 

### getaway driver. Multiple times. He is the getaway drive to the scene." "He is our getaway driver."

12....and so on. It is for these, as well as, other statements made throughout the trial, that due to their materiality and inability to be impeached does 

### the State deny Due Process. There is no corroboration that Holguin is in fact an actor or co-actor nor that he is a conspirator which must be proven beyond


### a reasonable doubt, not by probability, speculation or conjecture, which is insufficient to sustain a conviction in Texas and United States under the Due 

### process provision of the 14th Amendment of the U.S. Constitution. Petitioner seeks relief from this blear, constitutional violation.
Conclusion If the trial Court convenes a hearing, elicits testimony and thereby dev 

### elops, facts, the Court of Criminal Appeals is not bound by the trial court's, 

### findings. The Court of Criminal Appeals is obligated to determine if the record developed supports the trial Court's conclusions.. If it does not, the Court of Criminal Appeals may make a contrary finding. Here, any number of issues may have.affected the trial outcome. The Court of Criminal Appeals has stated: 

### "This Court has the power and authority to prevent enforcement of a judgment [of conviction] obtained under circumstances which constitute a denial of Due 

### Process." Ex Parte Bush 166 Tx. Cr. R 259, 288 (1958). Petitioner has provided 

### not only documentary evidence, but shown in the record the occurences referen ced above. His burden has been carried. The State cannot deny petitioner's 

### claims, which are founded in the law and on the facts derived in the record. 

## Holgion seeks liberal construction pursuant to Haines v. Kerner 92 S.Ct. 549 (1972), as he is not trained in the art of law, nor is he a paralegal. Holguin 

## seeks also protection of his rights and doing so presents these issues for rev iew at his first opportunity in due diligence. Prayer 

## Wherefore premises having been duly considered, Alfredo Holguin, Petitoner

13.Pro Se, respectfully moves, this Honorable Court of Criminal Appeals to con sider and review his constitutional issues which violations there of contr ibuted to his conviction. He further prays that he be Granted relief on each,
some or all issues in the form of reversal and acquittal or de minimus new trial as there is a reasonable probability the confidence in the verdict was undermined. Further, petitioner humbly seeks this Court to grant all general relief to which he is legally entitled under either Texas or Federal Law. Respectfully Submitted,

14. 

### X- Alfredo Holguin, Pet. Pro Se TDCJ# 1809852 McConnell Unit 3001 S. Emily Dr. Beeville, Texas 78102-8583 361.362.2300 (ph.) 361.362.3011 (fax)Appendix (Documentary Evidence) 8th Court of Appeals Opinion 9.12.14 Indictment 9.20.05

Jury Charge p.4 Benito Holguin Case Summary 20050DD4436; 99-12248 DNA Labratory Report 3.29.12ALFREDO HOLGUIN,

v.
THE STATE OF TEXAS, COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

Appellant,

Appellee. § No. 08-12-00253-CR § § Appeal from the
243rd District Court § § § ofEl Paso County, Texas (TC#20120D01334)

OPINION 

### Alfredo Holguin appeals the trial court's judgment convicting him of capital murder and 

### sentencing him to life imprisonment. In three issues, he complains ofthe sufficiency of the evidence, the admission ofevidence, and thejury charge. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The murder victim in this case was Mark Anthony Cedillo. On October 6, 2002, he was 

### taken at gunpoint and forced into the backseat of a brown, four-door sedan displaying Mexican license plates. Cedillo's former uncle by marriage, Jesus Salcido, witnessed thekidnapping. A few minutes later, witnesses driving in the vicinity saw the sedan in a nearby parking lot and two 

### Hispanic men, onelarger than the other, assault Cedillo, who crumpled to theground bleeding. When the men drove away, the witnesses, some of whom had heard gunshots, returned to the

### parking lot to attend to Cedillo, who eventually died at the scene from two gunshot wounds to his 

### neck. After talking to Salcido and the other witnesses, law enforcement officers, including former El Paso Police Detective Jesus Pantoja developed Benito Holguin and Appellant as 

### suspects.1 Three days after Cedillo's death, Pantoja went to his funeral and showed Salcido photo lineups containing Benito's and Appellant's photographs. Although years later he would not remember having spoken to Pantoja at the funeral, Salcido identified Benito and Appellant from the lineups shown to him that day. Approximately two weeks later, Salcido was shown eight photo lineups—each containing six photographs—at the police station and asked ifhe recognized any of the individuals in them. Two of the lineups contained Benito's and Appellant's photographs. Again, Salcido identified Benito as the kidnapper and Appellant as the driver. Although Salcido was confident in his identification ofBenito, he was not as confident in his identification ofAppellant, commenting that "[Appellant]
. . . strongly resembles the guy that was driving the brown four-door car." Appellant was arrested approximately nine years later and charged with capital murder. Before trial, he moved to suppress the identification evidence on the basis that the identification procedure was impermissibly suggestive. The trial court held an evidentiary hearing, during which the State called Pantoja as its only witness. Pantoja testified that Salcido was shown eight photo lineups, two of which contained photographs of Benito and Appellant, respectively; that the photographs in the lineups were obtained from DPS; and that each lineup depicted Hispanic males with similar characteristics,

Benito was Appellant's cousin. He died sometime before Appellant was tried. Appellant was residing in Juarez, Mexico during the intervening years. 2

### including size and build, hair color, facial hair, and clothing. Pantoja further testified he asked 

### Salcido to look through the lineups to see if he recognized anyone. According to Pantoja, he did not tell Salcido which photographs to select or that the lineups contained photographs of the suspected perpetrators. Pantoja testified Salcido selected photographs ofBenito and Appellant from the lineups; identified them as the kidnapper and driver, respectively; and circled, dated, and 

### signed the two photographs. On cross-examination, Pantoja acknowledged that photographs of Benito and Appellant had been provided to the media sometime before Salcido identified them 

### from the lineups3; however, Pantoja maintained that he did not know ifSalcido had seen the photographs distributed to the media and that he never spoke to Salcido about the matter before showing him the lineups. Defense counsel argued Salcido's identification ofAppellant was unreliable because it was tainted by the distribution ofAppellant's photograph to the media. The prosecutorcountered: 

### [0]n the photo lineup, there was mention of whether or not there were photos flashed across the media. Idon'tthink that DetectivePantojawas specific enough about what information was released to the media. And as far as the photo lineup, that is the Defendant's burden on this case. And there was no other information volunteered or given or presented to the Court today as far as this issue was concerned. I believe that Mr. Pantoja said I think at some point there was some sort ofmediaattentionto this, butthere were no specifics as far as what was flashed and the contents ofit. And ifyou will remember the testimony from Mr. Pantoja, when Mr. Salcedo, the eyewitness, who is right there with the Defendant when this carpulls up and these two individuals kidnappedhim, he's very specific. Not only does he say he recognizes these two individuals, he's very specific as to the role each one played. He's saying Alfredo Holguin was the driver ofthe vehicle and Benito Holguin was the guy who had him at gunpoint and put him in the car. So I don'tbelievethatthere was enough informationbroughtto this courtto suggestthat this photo lineup shouldbe suppressed or that it was tainted by some sort ofmedia release since there wasn't even a media release presented to the Court today to show how it could taint the lineup. Other than that, I think the lineups speak for themselves. They are not suggestive. Mr. Pantoja says he doesn't suggest to Mr. Salcedo, the witness, who to identify and so we believe, on both ofthese issues, we

3 At trial, Pantoja testified the two photographs were published in the El Paso Times on October 12, 2002. 3

### provided enough information to the Court that you should deny the motion to suppress .... 

### Agreeingthat "there was no evidence elicited specificallyregarding any possible taint from media exposure" and that "mere speculation" was insufficient to sustain Appellant's burden, the trial court denied the motion to suppress. 

### At trial, Salcido testified about his out-of-court identification of Appellant and the circumstances attending it. During his testimony, Salcido had difficulty recalling specific details concerning the kidnapping and his out-of-court identification ofAppellant. Although Salcido could not remember selecting Benito and Appellant's photographs from the lineups shown to him at the police station, after reviewing his statement, he confirmed that he circled, signed, and dated the two photographs. The State sought the admission ofthe lineups into evidence, and the trial court admitted them without objection. On cross-examination, Salcido admitted he could not positively identify Appellant as the driver. The State did not ask any ofits other witnesses to identify Appellant. During closing arguments, defense counsel argued the State had failed to prove beyond a reasonable doubt that Appellant was the driver! Thejurycharge authorizedthejuryto convictAppellant as aprincipal actoror as a party to the offense under either Sections 7.02(a)(2)—aider and abettor—or 7.02(b)—coconspirator—of 

### the Texas Penal Code.4 Appellant objected tothe inclusion ofSection 7.02(b), arguing itwas a

4 The application paragraph ofthe trial court's charge instructed thejury as follows: Now ifyou find from the evidence beyond a reasonable doubt that on or about the 6th day ofOctober, 2002, in El Paso County, State ofTexas that ALFREDO HOLGUIN, did then and there intentionallycause the death ofMARKANTHONY CEDILLO by shooting him with a firearm, and ALFREDO HOLGUIN was in the course ofcommitting or attempting to commit the offense of kidnapping; OR if you find from the evidence beyond a reasonable doubt that Benito Holguin intentionally caused the death ofMARKANTHONY CEDILLO by shooting him with firearm [sic] and Benito Holguin was then and there in course [sic] ofcommitting or attempting to commit the offense ofkidnapping, and you further find beyond areasonable doubt that ALFREDO HOLGUIN, 4

### separate theory of liability the submission of which was not supported by the evidence and 

### permitted thejuryto convicthim ofcapital murder without having to find he had: [T]he specific intentto kill which we would suggest is violative ofTexas law, and the State's burden ofproofunderthe Fourteenth Amendmentdue process clause in Article 1, Section 9 and 19 ofthe due course oflaw clause. Basically the State is being able to lessen their burden ofproofby using this conspiracy discussion, and there's a huge difference between capital murder and straight murderunder Texas law. 

### The trial courtoverruledAppellant's objections5, andthejuryfound himguilty.6
ADMISSION OF IDENTIFICATION EVIDENCE In his first issue, Appellant asserts the trial court should have excluded all of the identification evidence because it was obtained by a pretrial identification procedure so impermissibly suggestive as to have led to a substantial likelihood of misidentification. Specifically, he challenges the admission ofthe photo lineups, Salcido's in-court identification of him, and Pantoja's "testimony regarding Salcido's alleged identifications." We disagree that the 

### trial courtabuseditsdiscretionbyadmittingthis evidence.7
acting with intentto promote or assist the commission ofthe offense, encouraged, directed, aided, or attempted to aid Benito Holguin in the commission of said offense; OR if you find from the evidence beyond a reasonable doubt that Benito Holguin intentionally caused the death ofMARK ANTHONY CEDILLO by shooting him with a firearm and Benito Holguin was then and there in the course ofcommitting or attempting to commit the offense ofkidnapping, and you further find beyond areasonable doubtthat acting with intent to promote or assist the commissionofthe offense ofkidnapping, ALFREDO HOLGUIN encouraged, solicited, directed, aided or attempted to aid Benito Holguin in the commission or attempted commission ofthe said kidnapping, if any, and that the shooting ofMARK ANTHONY CEDILLO, if there was such, was done in furtherance ofthe conspiracy to kidnap MARK ANTHONY CEDILLO, if any, and was an offense that should have been anticipated as a result ofcarrying out the conspiracy, then you will find the Defendantguilty of CAPITAL MURDER as charged in the Indictment. (Verdict Form A) 5Holguin also requested that thetrial court define the term "conspiracy" forthejury, but thetrial court denied his request. Holguin does not complain ofthis ruling on appeal. 

### 6Appellantmovedfor anew trial, buthis motionwas overruledbyoperation oflaw. 7 We review a trialcourt's decisionto admit evidence for an abuse ofdiscretion. Smithv.State,683 S.W.2d 393,404 (Tex.Crim.App. 1984). 51. Admissibility ofPretrial Photo Lineup 

### Citing Cantu v. State,738 S.W.2d 249 (Tex.Crim.App. 1987), Appellant argues the photo lineup was impermissibly suggestive because his photograph was shown to Salcido on two separate occasions, first at Cedillo's funeral and then at the police station approximately two 

### weeks later. In Cantu, the court acknowledged that showing the victim four photo lineups, three of which contained the appellant's photograph, over a four month span was suggestive, but rejected the appellant's contention that the suggestive procedures tainted the victim's in-court identification so as to create a substantial likelihood of irreparable misidentification. Id. at 251-52. Although Cantu may be helpful to Appellant, we need not reach the merits of his complaint because he failed to preserve it for appellate review. When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object to the admission ofthe same evidence at trial in order to preserve error, but if the defendant affirmatively states thathe has "no objection" to the evidence, he waives any errorin its admission. Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App. 2008). Here, the State soughtthe admission ofthe pretrialphoto lineups at trial. When the trial courtasked ifAppellant had any objections to their admission, defense counsel responded, "No objection, Your Honor." By affirmatively stating at trial that he had no objections to the admission ofthe evidence in issue, Appellant waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in his motion to suppress. See Holmes, 248 S.W.3d at 200; Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App. 2005); Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992). 2. In-Court IdentificationNext, Appellant contends Salcido's in-court identification ofhim should not have been i 

### admittedbecauseit too was the resultofimpermissiblysuggestivepretrialprocedures. However, 

### Salcido was not asked to make, and did notmake, an in-court identification ofAppellant, and 

### Appellantdoes notciteto anyportionofthe record showing otherwise.8 Norareweable tofind 

### factual supportintherecordforAppellant's contention.9 To the contrary, the record establishes Salcidotestifiedabouthisout-of-courtidentificationofAppellantand thecircumstances attending it. Accordingly, Appellant has failed to demonstrate Salcido made an in-court identification of 

### him tainted by impermissible suggestive pretrial procedures. See Williams v. State, 402 S.W.3d 425, 431-32 (Tex.App.-Houston [14th Dist.] 2013, pet. refd)(noting witness was not asked to identify appellant at trial and rejecting appellant's contention that witness's reference to him as "the defendant" constituted an in-court identification ofhim). 3. Testimony Regarding Photo Lineup Identification 

### Finally, Appellant asserts his constitutional right to confront Salcido was violated when Pantoja testified to Salcido's out-of-court identification of him at Cedillo's funeral because 

### Salcido's memory loss prevented him from effectively questioning Salcido about that matter. Under these facts, Appellant's Sixth Amendment right to confront Salcido was not implicated by Pantoja's testimony. To implicate the Confrontation Clause ofthe Sixth Amendment, an out-of-court statement Pantoja was the only witness asked to identify Appellant at trial. In his brief, Appellant proclaims: As for Salcido's in-court identification, Salcido emphatically denied being able to identify Appellant. In fact, the record clearly conveys Salcido's reluctance to own up to the resemblance notation. 'That's my signature, but I can't remember.' Notwithstanding that Appellant fails to cite to the record in support of his contention, the snippet of Salcido's testimony on which he relies to make his point relates to Salcido's out-of-court identification ofhim. 7

### must betestimonial in nature andhave been made by adeclarantabsentfromtrial. Crawfordv. 

### Washington, 541 U.S. 36, 50-52, 59, 124 S.Ct. 1354, 1363-65, 1369, 158 L.Ed.2d 177 (2004); Woodall v. State, 336 S.W.3d634, 641-42 (Tex.Crim.App. 2011)(rejecting appellant'sargument that witness's memory loss made her absent for purposes of the Confrontation Clause). Here, Salcidotestified at trial and was subject to cross-examinationregarding the extrajudicialstatement about which Appellant complains. Indeed, Salcido was asked about his statement when 

### cross-examined by defense counsel. Simply because Salcido did not provide the answers to Appellant's satisfaction does not mean he was denied the right to confront him. This is because '"the Confrontation Clause guarantees an opportunity for effective cross-examination, not 

### cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Woodall, 336 S.W.3d at 643, quotingDelaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 

### 292, 294, 88 L.Ed.2d 15 (1985). [Emphasis in original]. Thus, as long as the defendant is given 

### the fair and full opportunity '"to probe and expose [forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony[,]'" the right guaranteed by the Confrontation Clause has been 

### satisfied. Id., quoting Fensterer, 474 U.S. at 22, 106 S.Ct. at 295. In this case, Appellant was afforded that opportunity. Appellant's first issue is overruled.
SUFFICIENCY OF THE EVIDENCE 

### In his second issue, Appellant argues the evidence was insufficient to support thejury's finding that he was the perpetrator. We disagree. Standardof Review

### The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 

### S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency ofthe evidence to support a criminal conviction, we view the evidence in the light most favorable to the verdict to 

### determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements ofthe offense beyond a reasonable doubt. Hooperv. State,214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at
2788-89. 

### Undera legal sufficiencyreview, we may not substitute ourjudgmentfor that ofthejurors, who are the exclusivejudge ofthe facts, the credibilityofthe witnesses, and the weightto be given to the evidence. Williamsv. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore defer to the jurors' resolution of these issues and to their responsibility to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences may be drawn from them, thejurors may accept one version ofthe facts and reject another, and they may reject any part ofawitness's testimony, even ifuncontradicted. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.-Houston [1st Dist.] 2000, pet. refd). ApplicableLaw The State bears the burden ofproving that the accused is the person who committed the

### charged offense. See Phillipsv. State, 164Tex.Crim. 78, 297 S.W.2d 134, 135 (Tex.Crim.App. 1957). The identity ofthe accused maybe proved by direct evidence, circumstantial evidence, or 

### even inferences. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986);Martin v. State, 246 S.W.3d 246, 261 (Tex.App.-Houston [14th Dist.j 2007, no pet.); Roberson v. State, 16 

### S.W.3d 156, 167(Tex.App.—Austin 2000, pet. refd). Proving the identity of the accused in open court, although the preferredprocedure, is not required ifotherevidence establishes the accused's 

### culpability. See Conyers v. State, 864 S.W.2d 739, 740 (Tex.App.-Houston [14th Dist.] 1993, pet. refd). Further, the absence ofan in-court identification is merely a factor for the jury to consider in assessing the weight and credibility of the witnesses' testimony; it is not outcome-determinative in and of itself. See Meeks v. State, 897 S.W.2d 950, 954-55 (Tex.App.-Fort Worth 1995, no pet.).
Discussion When viewed in the light most favorable to the verdict, the evidence adduced at trial was' sufficientfor thejuryto reasonably conclude that Holguin was the perpetrator. Salcido identified Appellant as the driver in two separate photographic lineups, and the lineup in which Appellant's photograph was circled, signed, and dated was admitted into evidence at trial without objection. Further, Appellant was connected with the crime through otherevidence. He admitted to Pantoja that he drove the sedan identifiedby the witnesses into the United States approximately two hours 

### before Cedillo's murder. Although Appellant claimed that he drove back into Mexico shortly thereafter and that the sedan was stolen later that day, Pantoja testified he was unable to find any records verifying Appellant's claim, and records obtained from the Department of Homeland 

### Security established that the sedan crossed the border only once that day. And the witnesses'

10

### descriptionofthe driver matched Appellant's physical stature and appearance. Appellant asserts evidence that he resembled the driver does not constituteproofbeyond a reasonable doubt given that Salcido's memory was faulty and no other witness identified him as 

### the driver. However, "[fjhe fact that a witness cannot give a positive identification of another person goes to the weight ofhis testimony, not to its admissibility; therefore, the lackofa positive 

### identification is ajury issue." Livingston v. State, 739 S.W.2d 311, 329 (Tex.Crim.App. 1987), cert, denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). In this case, after listening to Salcido's testimony, thejury was within its exclusive province to accept that testimony at face 

### value or to disregard part or all ofit as warranted under the circumstances. See Margraves, 34 S.W.3d at 919. By finding Appellant guilty, the jury necessarily chose to believe Salcido's testimony, and in conducting our legal sufficiency review, we are prohibited from re-evaluating the weight and credibility ofSalcido's testimony or substituting ourjudgment for that ofthejury. See Williams, 235 S.W.3d at 750. Appellant's second issue is overruled.
CHARGE ERROR 

### Inhis third issue, Appellant contends the charge was erroneous intwo respects.10 First, because it impermissibly permitted the jury to convict him ofcapital murder as a coconspirator under Section 7.02(b) of the Penal Code without requiring the State to prove that he had the specific intentto kill Cedillo. Second, becauseit did not requirethatthejurors agree unanimously "on which subsection of7.02 was applicable . . . ." 10 Wereview charge error on appeal bydetermining whether error occurred, and ifso, whether that error caused sufficient harm to require reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). The degree of harm required for reversal depends on whether the defendant preserved error at trial. Id.at 743. If he did, the record must establish only "some harm" to obtainreversal; ifhe did not, the record must demonstrate "egregious harm." Id. at 743-44. 11SpecificIntent to Kill Appellant's first complaint concerns the inclusion ofSection 7.02(b) in the jury charge. Appellant does not dispute that the law ofparties, including the theory ofparty responsibility set 

### forth inSection 7.02(b)11, applies tocapital murder. SeeJohnson v. State, 853 S.W.2d 527, 534 (Tex.Crim.App. 1992), cert, denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993)("This Court has continually held that the law ofparties announced in §§ 7.01 and 7.02 is applicable to capital murder cases."); Gonzalez v. State, 296 S.W.3d 620, 629 (Tex.App.—El Paso 2009, pet. refd)("The law ofparties, as set out in Texas Penal Code § 7.02(b), may be applied in a capital murder case."); Frank v. State, 183 S.W.3d 63, 72 (Tex.App.-Fort Worth 2005, pet. refd)("The 

### law ofparties applies to the offense ofcapital murder . . . ."). He does, however, dispute the 

### applicability ofSection 7.02(b) here. Appellant asserts Section 7.02(b) applies "only in [capital murder] cases where ashowingwas made ofspecific intent, or where evidence ofa conspiracy was advanced and the murder should have been anticipated." We disagree. 

### Appellant contends that, although Section 7.02(b) does not itself require a finding of intentional conduct, the State was nonetheless required to prove he possessed the specific intent to 

### kill Cedillo because capital murder is a "result ofconduct" offense. He is incorrect. Section 

### 7.02(b) eliminates any necessity on the part of the State to prove Appellant possessed the specific
11 Section 7.02(b) states: If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one ofthe conspirators, all conspirators are guilty of the felony actually committed, though having no intentto commitit, ifthe offense was committed in furtherance ofthe unlawful purpose and was one that should have been anticipated as a resultofthe carrying outofthe conspiracy. Tex. PenalCode Ann. § 7.02(b)(West 2011). 

### 12 Appellant asserts "there was noevidence advancedthatthe kidnapping was conspired over, norwas itshownthat the murdershouldhave been anticipated in carryingout the conspiracyto commitkidnapping." He does not argue that theevidence was insufficientto support his convictionbasedon a theory of party liabilitygenerally. 12intent to kill Cedillo. Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Crim.App. 1979); Gonzalez, 296 S.W.3d at 630. To convict a person ofcapital murder as a coconspirator under Section 7.02(b), the State need onlyprove thatthe person had boththe mens rea to engage in the conspiracy and the culpable mental state to committhe underlying, i.e., the intended, felony. Gonzalez, 296 S.W.3d at 630, quotation marks and internal citations omitted. The State is not required to prove that the 

### person had the intent to commit the actual felony perpetrated by a co-conspirator because the mental state for the underlying felony supplies the mens rea for the actual felony. Id., quotation
marks and internal citations omitted. 

### To support his contentionthat the State was required to prove he had the specific intent to kill Cedillo, Appellant relies on English v. State, 592 S.W.2d 949 (Tex.Crim.App. 1980). He argues Englishrequires a trial court to instructthejuryin all capital murdercases in which Section 

### 7.02(b) is applied that, in order to convict, it must find the defendant intended to kill under each 

### theory stated in the charge, including the theoryofparty responsibility set forth in Section 7.02(b). Appellantreads English too broadly. 

### In English, the appellant was convicted of capital murder. 592 S.W.2d at 950. The charge authorized thejuryto convict him as the primary actor or as a coconspirator under Section 7.02(b). Id. at 952-54. "In accordance with the language of Section 7.02(b)," the trial court instructed thejury that, in order to convict, it must find the appellant and his co-conspirators were 

### engaged in the commission of a robbery or attempted robbery and he or anotherco-conspirator intended to kill the victim. Id. at 954. The trial court's charge did not authorize the jury to 

### convict the appellant if it found that the murder was committed during the course of a conspiracy to rob the victim, but instead required the jury to find that the appellant was a party to the offense

13ofcapital murder. English, 592 S.W.2d at 950. 

### On appeal, the appellant argued the charge impermissibly allowed thejury to convicthim ofcapital murder ifit found he committedthe murderduring the course ofa conspiracyto commit robbery, rather than finding he committed an intentional murder in the course ofa robbery or attempted robbery. Id. at 952. The court disagreed, concluding Section 7.02(b) is applicable to capital murder cases and thejury was properly charged. Id. at 955. In remarking on the charge in question, the court noted that the trial court, "in a commendable act ofcaution," cautioned the juryitcouldnot convictthe appellantunless itfoundbeyond areasonable doubt, undereach theory contained in the charge, he had specific intentthat the victimbe killed. Id. at 954-55. According to the court, this cautionary instruction "insured that the jury would not be confused by the conspiracy language the-court used in applying the law to the facts." Id. at 955. However, this observation was not the basis for the court's decision and therefore cannot be read as requiring cautionary or restrictive instruction in all cases in which Section 7.02(b) is applied. 

### Appellant has not shown that the trial court erred in including Section 7.02(b) in thejury charge. Jury Unanimity Appellant's second complaint concerns the absence in the charge ofa requirement that the jury unanimously decide under which theory ofparty liability—aider and abettor under Section 

### 7.02(a)(2)13 or coconspirator under Section 7.02(b)—he was culpable. He "argues that the
13 Section 7.02(a)(2) establishes party liability asfollows: A person is criminally responsible for an offense committed by the conduct of anotherif... acting with intent to promote or assist the commission ofthe offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense
.... TEX.PenalCode Ann. § 7.02(a)(2)(West 2011). 14failure to require all twelve jurors to agree on which theory ofparty liability applied to [him] violated the United States and Texas Constitutions and the Texas Penal Code." We disagree. "Jury unanimity is required on the essential elements ofthe offense but is generally not required on the alternate modes or means ofcommission." Leza v. State, 351 S.W.3d 344, 356 (Tex.Crim.App. 2011); accord Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App. 2007)(unanimous verdict helps ensure each juror is convinced beyond reasonable doubt that 

### prosecution proved each essential element of offense); Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005)("Under our state constitution, jury unanimity is required in felony cases, and, under our state statutes, unanimity is required in all criminal cases."). The provisions of 

### Section 7.02, which defines party liability, do not contain elements ofthe underlying offense, but rather "describe alternative manners by whichan accusedmay be held accountable for the conduct ofanother who has committed the constituent elements ofa criminal offense . . . ." Leza, 351 

### S.W.3dat 357. Thus, ifthejurydetermines that the accusedis guiltyofeveryconstituentelement 

### of the criminal offense charged—"either as a principal actor or under some theory of party 

### liability"—the jury is not required to unanimously determine what his "precise role" was in the offense. Id. [Emphasis in the original]. 

### Here, the Appellant was charged with one offense—the capital murder ofCedillo—under three alternate theories ofcriminal culpability, two ofwhich were based on Section 7.02. The 

### jury chargerequiredunanimityregarding Appellant'sculpabilityfor the capitalmurderofCedillo, but did not require unanimity as to the manner in which he was culpable—as a principal or as a 

### party. "Lezamakes it clear thatmultiple theories of partyliability under section 7.02 may be listed disjunctively in the jury charge without running afoul of the constitutional unanimity

15

### requirement." Sanchez v. State, No.03-13-00050-CR, 2013 WL4487562, *6 (Tex.App.-Austin Aug. 15, 2013, pet. refd)(mem. op., not designated for publication). This is "becausethe theories 

### are not conceptually distinct; rather, they are slightly different characterizations that can be given the appellant's particular conduct, each of which would make him guilty of the sole crime 

### charged." Id. Accordingly, thejury in this case was not required to unanimously agree on the theory of criminal culpability supporting their unanimous conclusionofAppellant's guilt as either
aprincipal or party for a single offense. 

### Appellant "argues that because 7.02 contains two sections with differing mens rea requirements, he was entitled to unanimity as to which ofthe two different underlying intent theories the jury found from the evidence." Appellant, however, fails to acknowledge, let alone distinguish Leza. Instead, he directs our attention to Kitchens v. State, 823 S.W.2d 256 

### (Tex.Crim.App. 1991) and Aguirre v. State, 732 S.W.2d 320 (Tex.Crim.App. [Panel Op.] 1987)(op. on reh'g). Upon close review, these cases actually provide additional support for our conclusion. Both Kitchens and Aguirre stand for the proposition that there is no requirement under a general charge that thejurors designate which ofthe alternative means ofcommitting the offense they found to have been proven. See Kitchens, 823 S.W.2d at 258; Aguirre, 732 S.W.2d

at 326. 

### Appellant has not shown that the trial court erred in failing to require the jury to unanimously determine what his exactparty accountability might be. Appellant's third issue is overruled.
CONCLUSION The trial court'sjudgment is affirmed.

16September 12,2014 YVONNE T. RODRIGUEZ, Justice 

### Before McClure, C.J., Rivera, and Rodriguez, JJ. Rivera, J. (Not Participating) (Do Not Publish)

17The State ofTexas vs Benito Felix Holguin Case Type: Adult Felony Date Filed: 09/20/2005

Location: 346th District Court

Related Case Information Related Cases

20050D04436 (Related Case) 05-06740 (Related Case)
Party Information Lead Attorneys Defendant HOLGUIN, BENITO FELIX

State

01/28/2010

01/28/2010

09/20/2005 09/20/2005 01/28/2010 01/20/2011 State ofTexas

Events & Orders ofthe Court DENISE BUTTERWORTH 915-546-2059(W)

DISPOSITIONS Disposition (Judicial Officer: Barill, AngieJuarez)

1. MURDER Dismissed Sentenced

- Other (Judicial Officer:Barill, AngieJuarez)

1. MURDER 

### Comment(CommentTHESAIDDEFENDANTDIEDON08/17/2009 SentenceDate: Jan28 2010 12:00AM)

OTHER EVENTS AND HEARINGS Other Indictment (OCA) Motion/ Order to Dismiss Precept Return

Documentary Evidence Appendix Exhibit A



### httpy/casesearch.epaxjrrty.corrVr\ibli(^Vccess/CaseDetail.aspx?CaselD=5471695 1/111/5/2014 casesearch.epcounty.com/PublicAccess/CaseDetail.aspx?CaselD=5277782 Register ofActions Case No. 990D02689 :t=j=nai»rfmnij

The State ofTexas vs Benito Felix Holguin

Related Case Information Related Cases

99-12248 (Related Case)
Party Information Defendant HOLGUIN, BENITO FELIX

State

01/28/2010

06/24/1999 06/24/1999 07/31/2001 01/22/2002 01/30/2002 01/28/2010 01/20/2011 State ofTexas
Events & O rders ofthe Court DISPOSITIONS Disposition (Judicial Officer: Barill, AngieJuarez)

1. MURDERINTENTIONALLY CAUSEDEATH Dismissed
OTHER EVENTS AND HEARINGS Other Indictment (OCA) Vol./Book 1384. Page 1366 Hearing (8:00AM) (Judicial OfficerBarill, Angie Juarez) Subpoena Issued Subpoena Issued Motion/ Order to Dismiss Precept to Serve Location : All Courts Help

Case Type: Adult Felony Date Red: 06/24/1999

Location: 346th District Court

LeadAttorneys

Documentarv Evidence Appendix Exhibit BDocumentary Evidence Appendix Exhibit C

OFFENSE: MURDER 

## '"?' ^INDICTMENT 

# 0 PID/CONTRLNO. 11^696/05-06741.



# STATEOFTEXAS^jfT

VS. ALFREDO HOLGUIN 

# (A&)

INTHE NAME AND BYTHE AUTHORITY OFTHE STATE OF TEXAS
the nd Jurors for the County of El Paso, Stat 

# jtm irjexas, duly organized as such, at *" Judicial District Court for Term, A.D., 2005 of the 

# m said County, upon their oaths in said Court, present that on or about the 6th day ofOctober, 2002 and anterior to the presentment of this indictment, in the County ofElPaso and State of Texas, ALFREDO HOLGUIN, hereinafter referred to as Defendant, PARAGRAPH A 

### did then and there intentionally and knowingly cause the death of an individual, namely, MARK ANTHONYCEDILLO by shooting MARKANTHONYCEDILLOwith a firearm. 

### And it is further presented that the said Defendant used and exhibited a deadly weapon, to-wit:.afirearm, during the commission of and immediateflight from said offense, PARAGRAPHB 

### did then and there, with intent to cause serious bodily injury to an individual, namely, MARK ANTHONY CEDILLO, commit an act clearly dangerous to human life, to wit: shooting MARK ANTHONY CEDILLO with a firearm, that caused the death of the said MARK ANTHONY CEDILLO, 

### And it is furtherpresented that the said Defendant used and exhibited a deadly weapon, to-wit: a firearm, during the commission of and immediateflight from said offense,

AGAINST THE PEACE AND DIGNITY OF THE STATE.

FILED THE 

# $Ep 202005

THE STATE OF TEXAS COUNTY OF EL PASO 

### Icertifythattheforegoing is atrue and correctcopyofthe original IndictmentOft-fifei" mVoffice- Given undermynand 

### andsealofthecourtatmyofficeinElPaso,Texasonthe SEP ^ ^ ^ -"—' GILBERTSANCHEZ, District Clerk, El Paso County, Texas Deputy 

### /7/-> BAIL AMOUNT:

# ; &&>p9& by DEPUTYDocumentary Evidence Appendix Exhibit D 

### The Defendant, ALFREDOHOLGUIN, stands charged by Indictment with 

## CAPITAL MURDER, alleged to have occurred onoraboutthe 6th day ofOctober2002. To these charges the Defendant has pleaded not guilty. Now if you find from the evidence beyond a reasonable doubt that on or about the 

### 6th day of October, 2002, inEl Paso County, State of Texas that ALFREDOHOLGUIN, 

## did then and there intentionally cause the death ofMARK ANTHONY CEDILLO by shooting him with afirearm, andALFREDO HOLGUIN was in thecourse ofcommitting or attempting to commit the offense ofkidnapping; OR if you find from the evidence beyond a reasonable doubt that Benito Holguin intentionally caused the death of MARK ANTHONY CEDILLO by shooting him with firearm and Benito Holguin was then and 

### there incourse ofcommitting orattempting tocommittheoffense ofkidnapping, andyou further find beyond areasonable doubt thatALFREDO HOLGUIN, acting withintent to promote or assist the commission of the offense, encouraged, directed, aided, or 

### attempted to aid Benito Holguin in the commission of said offense; OR if you find from 

### the evidence beyond a reasonable doubt that Benito Holguin intentionally caused the death of MARK ANTHONY CEDILLO by shooting him with a firearm and Benito 

### Holguin was then and there in the course of committing or attempting to commit the 

### offense ofkidnapping, and you further find beyond a reasonable doubt that acting with intent to promote or assist the commission of the offense of kidnapping, ALFREDO 

### HOLGUIN encouraged, solicited, directed, aided, or attempted to aid Benito Holguin in the commission or attempted commission of the said kidnapping, if any, and that the shooting ofMARK ANTHONY CEDILLO, ifthere was such, was done in furtherance of 

### the conspiracy to kidnap MARK ANTHONY CEDILLO, if any, and was an offense that 

### should have beenanticipated as a result of carrying out theconspiracy, then you will find the Defendant guilty of CAPITAL MURDER as charged in the Indictment. (Verdict Form A) 

### Unless you so find beyond a reasonable doubt or if you have a reasonable doubt 

### thereof, you will next consider whether or not the Defendant, either acting alone or with 

### others as a party as that term has beendefined, intentionally orknowingly unlawfully restrained MARK ANTHONY CEDILLO as a lesser included offense ofthe offense of 

### Capital Murder, as charged in the Indictment. If you find the Defendant not guiltyof Capital Murder, but guilty ofthe lesser included offense ofUNLAWFUL RESTRAINT then you will so indicate in Verdict Form B. 

### Unless you so find beyond areasonable doubt or if you have a reasonable doubt thereof, you will acquit the Defendant, ALFREDO HOLGUIN, ofCAPITAL MURDER, as charged in the indictment and the lesser included offense ofUNLAWFUL 

### RESTRAINT. (Verdict Form C)

MANNER OF DELIBERATIONS 

### a. In order to return a verdict, eachjuror must agree thereto. b. Jurors have a duty to consult with one anotherto deliberate with a view of 

### reaching an agreement, ifit can be done without abrogating individualjudgement.Documentary Evidence Appendix Exhibit E 

## TEXAS DEPARTMENTOF PUBLIC SAFETY CRIME LABORATORY 11612 Scott Slmpion

El Piso, TX 79836 Vole* 915-649-4120 Fa« 915-649-4113

EIPasoCrlmaLibQdps.tanas,gov STEVEN C.UCCRAW DIRECTOR OAVtOC BAKER CHERYL MieBRlOE DEPUTY DIRECTORS DNA Laboratory Report Issue Date: March 29, 2012 COMMISSION ALLANB. POLUNSKY. CHAIR ADA BROWN JOHN 5TEEN CARIN MARCY BARTH

A. CYNTHIA LEON David Samaniego El Paso Police Department 911 N. Raynor El Paso, TX 79903 Laboratory # L4E-41048 Agency # 02-279195

County El Paso Offense Date 10/06/2002 Suspect(s): Holguin, Alfredo (DOB 07/07/74) Holguin, Benito (DOB 12/14/70) Victim(s): Cedillo, Mark (DOB 12/20/79) Requested Analysis:Perform ForensicDNAAnalysis Submission Information: 

### 2aproperly sealed largewhitefile box onJanuary 30, 2012 by Det. Samaniego Evidence Description, Results of Analysis and Interpretation: 

### Portions oftheitems wereextracted by amethodthatyields DNA. 

### The extracted DNAwas subjectedtothe PolymeraseChain Reaction (PCR) and examined atthe following STR loci: D8S1179, D21S11, D7S820, CSF1PO, D3S135B, TH01, D13S317 D16S539 D2S1338, D19S433, vWA, TPOX, D18S51, Amelogenin, D5S818, andFGA. 3-01

-Swab from leftfingernail clippings (item 1)



### Thepartial DNAprofile fromthe swaboftheleftfingernail clippings isconsistentwith theDNAprofile ofMr. Cedillo. Mr. Cedillocannotbeexcludedasthecontributoroftheprofile atthefollowing lociD8S1179, D21S11, D7S820, CSF1PO, D3S1358, TH01, D13S317, D16S539, D19S433, vWA, TPOX, D5S818, and FGA. Atthese loci, theprobabilityofselecting anunrelatedperson atrandom 

### whocouldbethe sourceof this DNAprofileisapproximately 1in4.975 quadrillionfor Caucasians, 1 

### in 185.7 quadrillionforBlacks, and 1in981.4trillionforHispanics. To areasonabledegreeof scientificcertainty, Mr. Cedillo isthe sourceofthis profile (excluding identicaltwins). 3-02

-Swab from right fingernail clippings (item 2)

TheDNA profile from swab of therightfingernail dippings isconsistentwith amixture. Mr. Cedillo 

### cannot beexcluded as thecontributorofthemajorcomponentin this profile. The probability of selecting anunrelated person atrandom who could bethesource ofthemajorcomponentin this profile isapproximately 1 in11.89quintlllion for Caucasians, 1 in898.5quintillion for Blacks, and 1 in 

### 3.209 quintillion for Hispanics. Toareasonable degree ofscientific certainty, Mr. Cedillo isthe 

### source ofthemajorcomponentin this profile (excluding identical twins). Mr. Alfredo Holguin is excluded as a contributorto the majorcomponentinthisprofile. Due to thelow level of data, no DNA comparisons will be made to the minor component. 3-03 - Known blood samplefrom the victim (item 3)

The DNA profile was used for comparison purposes. 3-04 - Stain from victim's blue jeans (item4)

ACCREDITED BYTHEAMERICANSOCIETYOFCRIMELABORATORYDIRECTORS• LAB ACCREDITATIONBOARD COURTESY • SERVICE • PROTECTION Page 1 of 2Laboratory Case Number 

## L4E-41048 A9°nCyCaSeNumber OffenseDate 02-279195 10/06/2002 

# M^S^SJS^a^^arr'5"WlththeDNA^ *Mr.CediHo unrelatedpersonatr^^a^^°',he,Pr°fi,e-TheProbabili'yofselectingan quintillionforCaucasiansTMInM f 1i^TsT ^ h?^ "appr°xiTMteIy 1'"H-88 

# a

reasonabledegreeofscientific^"MrZ^otlTsourr^ ^f0"**HiSpaniCS' T° twins). y' r Ledlll° lstnesourceofthisprofile (excludingidentical 

## 3-05

-Stainfrom victim'sredt-shlrt(item5)



# Mr.^dlP;0a?no;°bmeItludt^hrcon?nt'"',T^^ »»DNA^ °<Mr.Cedillo unrelatedpersona,ra^m:0 1 ^ :;:S:eril%°fSe,edin9an ' quintillionforCaucasians, 1in898.5quWB^^Sl "^PTSL"appr°ximate|y1m 11.89 areasonabledegreeofscientificcertainty Mr ?1 t '"32°9qUinti,lionforHl'spanics. To twins). C Certa'nty-MrCed,ll°,sthesTMTMofthisprofile(excludingidentical 3-06

-Stainfromvictim'slefttennisshoe(item6)



# anunrelatedpersonatr^^^,^^^^"--TMeP~*-bilHyofse.ecting (excludingidenticalZl) *'^ Cedi"°'StheS0UrceofthisPr°«'« 3-07

-RightbuccalswabsfromAlfredoHolguin(item9A)

TheDNAprofilewasusedforcomparisonpurposes. Investigative Leads: 

### Pleasereferto aprevious reportissuedon November 1 ? ?m1/,,„^ 

# JosephCorrea,twoadditionalreportsissuedonNovemLf22 20u2bv1^Tr"UE"35°59)by February 16,2012byNicolasRonquillo. NOVember22,2002byJosephCorrea, andoneissuedon 

# A

^profileobtainedfromMr.AlfredoHolguinhasbeenenteredintotheCombinedDNAIndexSystem

Disposition: 

# DNAexlractshavebeenre.aiStont^Slh , T PiouslycollectedItem,andtherasulSng Th.sreporthasbeenelectrpnicallypreparedandapprovedby: NicolasRonquillo y_^_. Forensic Scientist III 

### Texas DPS ElPaso Crime Laboratory

TaDPS J 28 12 Issue Date: March29, 2012 Page 2 of 2Appendix (Witness Statements)

Jesus Salcido 10.6.02
Jesus Salcido 10.24.02 Eduardo Carrizal 10.6.02

Wendy Herrera .10,6.02 Eduardo Dom.inguez 10.6.02
Susana Villareal 10.6.02

# *



# m. Witness Statement Appendix Exhibit F

€S 

## fyO EL PASO POLICE DEPARTMENT
WITNESS STATEMENT 

# Cjy^

Case#: 0.2-279195 Offense: DEATH UNATTENDED Complainant': Address: 

### This statement was given voluntarily to: DET. R. POSADA #1403 Of the El Paso PoJLi_cg_Q.e.D.airtm&qt by: JESUS ENRIQUE SALCIDO Social Security: L_. Address:_

—— .*. D . 0. E . : . — Home Phone Number: j , L Work Phone Number:__ Driver's License: Date & Time: 10-05-02 9:15 PM 

### My name is Jesus Enrique Salcido and I live at mV son Orlando and I have lived there for about 5 years. I am 

### currently emoloyed with Southwest Staffing, 1600 Lee Trevino and I have 

### been employed there for the last 2 years. I am currently at the Crimes 

## Against Persons'office speaking to Det. Posada about my nephew, Mark. I was married to Mark's(sister^Sylvia Martinez for about 10 years. I have been divorced from her for about 11 years. We had two sons and 

### one girl together. My son Jessie is 18 years old, Orlando is 1/ years old."and mv'daughter Vanessa is 13 years old. Sylvia is sister to Mark's mother. Maria. I don't know Mark's last name. My girlfriend 

### Kristen Vasquez lives with me right now until she gets another apartment. 

### At about 5:00 PM on. today's date, I was going to my job at 6900 Lee 

### Trevino to drop off my time card. I was driving my 1981 Harley Davidson FLH north on Lee Trevino and I was near the El Paso Honda when 

## my nephew Mark drove up to my left side. He was driving a white Chevrolet Silverado, extended cab with chrome wheels. It looked like a 

### n*w truck. I told him to pull over into the p.arking let next to the 

### Taco Bell. I then let Mark pull in front of me into the parking lot of the Taco Bell. I followed him in my motorcycle. As I was turning, I 

### heard a car honk. I looked through my mirror and noticed a car behind mo t think the whole front end of the car was white and it also 

## pulled Jnto the oarkina lot. I then parked behind the Taco Bell and in"front of Mavericks. .I parked my motorcycle facing tne Mavericks 

### billiards Mark parked his truck behind the Taco Bell facing south Towards the rear entrance of El Paso Honda. As soon as Mark parked his 

## truck he got off and started walking towards me. Iwas parked north of his truck As he got to where I was, he told me that I had a nice 

## bike. I then heard someone say, = HEY COME HERE'. I then looked and , 

## saw a guy walking towards Mark. The guy was a hispance male 26-2/ 

## years old 5'9', about '190 pounds, black short hair comDed oack, buttoned up shirt with a collar with short sieeves-yeilow-orange in 

## OCXwith

### EL PASO POLICE DEPARTMENT WITNESS STATEMENT Case#: 02-279195 

### color, and the pants were faded jeans or gray pants. He was wearing black casual black shoes. 

## The quy walked ud to Mark and grabbed him with his left hand. He told Mark 'VENT- me'dEv'ES'. The guy had his right hand under his shirt on his waistband. As soon as he grabbed Mark by the arm, I took a step towards them. The guy looked at me and then uncovered his right hand and he held a black automatic handgun by his right side. The gun was 

## dark gray and it looked like a 9mm but not as long. He never pointed, 

## the gun at me or at Mark. The guy then walked Mark back to a car that 

## 'was parked behind the Taco Bell facing towards Mavericks billiards. The car was at an angle a few parking spaces north of where my 

## motorcycle was. I noticed that this was the same car that followed, me into the parking lot after it had honked. 

## Thp guy then walked Mark by his left arm to the rear passenger seat. He made Mark get in the rear seat and then he got into the rear seat besides Mark. I saw a heavy set Hispanic male seating in the ariver 

### -eat of the car. It kind of^looked like he had long nam but I am not 

### sure. Once Mark was put in the car, the car left towards Lee Trevino in between the Taco Bell and'Chilis. 

### I remember that the number 296 were part of the plates on the car. Tne 

### car had orange Chihuahua plates. The car looked like a Chevrolet Malibu with 4 doors. The car was about a 1973 to a 1982. It had a 

### darker brown top and bottom of the car was a faded brown. The front end was white. I noticed that the front passenger window was rolled 

### down about "6 inches but the rear passenger window was rolled up to the 

## top. The windows were filthy and I couldn't see inside very well. I bad a cell phone with me at the time but I didn't call the police. I wanted to go to Mark's mothers house and ask his mother if she knew 

## what was gcino on. I saw that the car got to Lee Trevino m the 

## parking lot .and this is when Idrove my motorcycle north m the parking lot and onto Vista Del Sol. I drove to Mark's mother's house at <.973 Manuel Acosta. 

## When I' arrived at Maria's house (Mark's mother), her daughter told me 

# Lt she was asleep. Itoiler to wake her up.

_ When she woke up I told her that some guys had taken HarK at gun point She Lhen told me that she had received threats and that someone was looking .or HarK. 

# sSe tofd m- that they had told her not to call police, but Itold her to call 911. Iwaited until police arrived. Maria told me that she had run Mark out of the house because he was into drugs. 

## Tho "last time I saw Mark was about 2 months ago when he came over to my 

# house vSL »y son. Jessie. That was right before Jessie went into the Irmy. He wanted Jessie to go out with him to meet some jj^. Jessi* did not go with him. Before this day, Ihaon't seen Mark since 

# aooSYionths.9 About 1year ago, Mark came over to the house on hisEL PASO POLICE DEPARTMENT WITNESS STATEMENT
Case#: 02-279195 motorcycle. I think he had a Ninja motorcycle. We went to Rods and Wheels and drank some beers. I did not hang out with Mark, that was the only time that I went partying with Mar!;. I have never met any-of Mark's friends. I HAVE READ THIS STATEMENT AND EVEN THOUGH IT IS MOT IN .MY EXACT WORDS, I FIND IT TO BE TRUE AND CORRECT TO ;EUE BEST OF MY KNOWLEDGE. 

### u J..-. / .; SUBSCRIBED AND SWORN TO BEFORE ME, THE UNDERSIGNED AUTHORITY. ON THIS DATE 6TH DAY OF 20 02OWitness^-Sfeateineni: Appendi 

## EL PASO POLICE DEPARI MEN" WITNESS STATEMENT/Case?? )2-27919b


### Offense: Capital Murder 

## Complainant.: Kark Anthony Cedulo Address: 11973 Manuel Acosta 

## this statement was given voluntarily Of the El Paso PoiiGfi-D-as^j^ent oy: Social seeiud±u: -~~—.. Address:

——- D. 0. B. :' _— —— Home Phone Numberj

__ Cellular Number: —_ Work Phone Number: Driver's License,: Texa Date & Time: 10-24 DL# 5A-C2/10C7HRS Det. J. Par to: us'.. ~ ••- ^..coja Jr . 

### Jesus Enrique Salcido Exhibit Q 

# ay/o^



# V^Z^Z*0TM ^.l/.nd^unt.rUy providingthis second witness State,ent to. Detective Pantoja 

# Today Iagreed to «,eet ^"^^^/^I^ina several photo 

# Aoainat Person, frxo ,o t %£•,« ^

_Deteotlve 

# £n?o?.'.dv sed ,°a on^tollo^o.. ! -Id. b, via,!TM s.varaa ' ' A hl~ru =H whi+c photo line-ups of na.span.i.c ^ai-s. i color and black and *ni.-~ f-L~;~ . \. , a„d ssp if t could 

## would then bo asked to vie, t e ?n ° '. -; ~'s« There .as a 

# identify the ^^t^^" ^uld "vI^Ing. Detective 

# total of eight photo ^-^^'^/-^T^ais involved in The Panto] afurther advised .e -.-t^h J- .,Q line.ups nivp" ^ase rniaht oe or m.xgni not oe _n xr... j- • ,.,„...:„„ thn 

## giye: .ebb f,hlirPTPd t-o --dentifv anyone, i oegan vie«iny tn~ 

# Sot: Se^s ^iTthe.£>£--no, -«.£ r8TVd£-*%jo„n^^ In the fourth photo line-up .ne "f,^
. th* brown 4.d0or car .,i,, ncronhips th=> nuy that was a. ivinfa un= ~i -w 

## strongly .eoe!,.tles-..:gy Pantoja had me circle the 

# that Mark Has •or.ec ..^ D -.t J ^ signed the individual's pnotograpl.aOu-.-n

- aa^ -,nc.up and i was T —hari v'lOV'Pd Xllft Til t-II UIIOLO 0-—ll~ -1K 

## photo line-up. I Lhen vi-.-ea ,-.^,.^1 in oosition #2 as the Pb3e to immediately iden.xi.j the ino-viau^

- .. >,„ nrtninn»rl Mar^ at cunpomt. ;here is no gojul o.u , 

# person who kxdnapp^d '^... « kidnapped Mark. The only 

# raind that he is .he oame Person pantoja had me circle difference is ihat he is sij-ni^. signed 

# the individual's photograph- and t, . ;^; p at Mark>s the photo line-up. I rememoe. mee xng oth l ^ 

# ^-ai and hefTMf4?dsS;te ivT^XMt hB -s the guy 

# Sal h^kSapoeS^arklhe^nly difference was that he »as no.EL PASO POLICE DEPARTMENT WITNESS STATEMENT/Case#: 02-279195 slimmer than ir. the photograph. I once again saw this guy's photograph in the El Paso Times. I did not recognize anyone in the sixth photo line-up. I did not recognize anyone in the seventh photo line-up. I did not recognize anyone in the eight photo line-up. I have advised Detective Pantoja that I had r\ever met the two- guys that I identified before. I have advised Detective Pantoja that I will assist the State of Texas in it's prosecution.
I HAVE .READ THIS STATEMENT AND EVEN THOUGH IT IS NOT IN MY EXACT WORDS. I FIND IT TO BE TRUE AND CORRECT TO THE BEST OF MY 

### KNOWLEDGE.

__ ^
Uesfi's Enrrolie Salcido

O SUBSCRIBED AND SWORN TO BEFORE ME, THE UNDERSIGNED AUTHORITY. ON THIS DATE 24th DAY OF OCTOBER, 2002.

-.? ^*JzZ-^ Mycommit •W.a^> ' <D£R
j-ia-. i/.-ii:-.ioO': S-