IN THE TEXAS COURT OF

CRIMINAL APPEALS

AT AUSTIN, TEXAS

Cause No. PD-1352-14

PETITION FOR DISCRETIONARY REVIEW

RECEIVED ^

'""•' OF CRIMINAL APPEALS

DEC 30 2014

@J£CGf»*atG!er5<

FILED IN ALFREDO HOLGUIN. PETITIONER C0URT Qf: CR|M|NAL^^

V. CEC 312314

THE STATE OF TEXAS, RESPONDENT Abel Acosta, 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

li
INDEX 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.

in
STATEMENT 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.

iv
STATEMENT 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 dismissed
by 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 the

merits 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 their
family 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 statments.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 doubt
standard 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 3.29.12
ALFREDO 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

§

§

§

of El 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 of the sufficiency of the

evidence, the admission of evidence, and the jury 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 the kidnapping. A

few minutes later, witnesses driving in the vicinity saw the sedan in a nearby parking lot and two

Hispanic men, one larger than the other, assault Cedillo, who crumpled to the ground 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 if he 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 of Benito, he was not as confident in his

identification of Appellant, 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 of Benito 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 if Salcido 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 of Appellant's photograph to the media. The prosecutor countered:

[0]n the photo lineup, there was mention of whether or not there were photos

flashed across the media. I don't think that Detective Pantoja was 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 ofmedia attention to this, but there were no specifics as far as what was flashed

and the contents ofit. And if you will remember the testimony from Mr. Pantoja,

when Mr. Salcedo, the eyewitness, who is right there with the Defendant when this

car pulls up and these two individuals kidnapped him, 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 of the vehicle and

Benito Holguin was the guy who had him at gunpoint and put him in the car. So I

don't believe that there was enough information brought to this court to suggest that

this photo lineup should be suppressed or that it was tainted by some sort of media

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 of Appellant. 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 of the 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 of its 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!

The jury charge authorized the jury to convict Appellant as a principal actor or 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 to the inclusion of Section 7.02(b), arguing it was a

4

The application paragraph ofthe trial court's charge instructed the jury as follows:

Now if you 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

intentionally cause the death ofMARK ANTHONY CEDILLO by shooting him with a firearm, and

ALFREDO HOLGUIN was in the course of committing 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 of MARK ANTHONY CEDILLO by shooting him with firearm [sic]

and Benito Holguin was then and there in course [sic] of committing or attempting to commit the

offense of kidnapping, and you further find beyond a reasonable doubt that ALFREDO HOLGUIN,

4
separate theory of liability the submission of which was not supported by the evidence and

permitted the jury to convict him of capital murder without having to find he had:

[T]he specific intent to kill which we would suggest is violative of Texas law, and

the State's burden of proof under the Fourteenth Amendment due process clause in

Article 1, Section 9 and 19 of the due course of law clause. Basically the State is

being able to lessen their burden of proof by using this conspiracy discussion, and

there's a huge difference between capital murder and straight murder under Texas

law.

The trial court overruled Appellant's objections5, and the juryfound him guilty.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 court abused its discretion byadmitting this evidence.7

acting with intent to 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 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 of kidnapping, and you further find

beyond a reasonable doubt that acting with intent to promote or assist the commission ofthe offense

of kidnapping, 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 of MARK 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 of carrying out the conspiracy, then you will find the Defendant guilty of

CAPITAL MURDER as charged in the Indictment. (Verdict Form A)

5 Holguin also requested that the trial court define the term "conspiracy" forthejury, but the trial court denied his

request. Holguin does not complain ofthis ruling on appeal.

6 Appellant moved for a new trial, but his motion was overruled byoperation oflaw.

7 We review a trial court's decision to admit evidence for an abuse ofdiscretion. Smithv.State, 683 S.W.2d 393,404

(Tex.Crim.App. 1984).

5
1. Admissibility of Pretrial 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 that he has "no objection" to the evidence, he waives any error in

its admission. Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App. 2008). Here, the State

sought the admission ofthe pretrial photo lineups at trial. When the trial court asked 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 Identification
Next, Appellant contends Salcido's in-court identification of him should not have been

i

admitted becauseit too was the resultof impermissibly suggestive pretrialprocedures. However,

Salcido was not asked to make, and did not make, an in-court identification of Appellant, and

Appellant does notciteto anyportion of the record showing otherwise.8 Norarewe able to find

factual support inthe record for Appellant's contention.9 To the contrary, the record establishes

Salcido testified abouthis out-of-court identification of Appellant and the circumstances 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 of him).

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 of him.

7
must be testimonial in nature and have been made by a declarant absentfrom trial. Crawford v.

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's argument

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 the jury's

finding that he was the perpetrator. We disagree.

Standard ofReview
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 of the 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 of the offense beyond a reasonable doubt. Hooper v.

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.

Under a legal sufficiency review, we may not substitute our judgment for that ofthe jurors,

who are the exclusive judge ofthe facts, the credibility ofthe witnesses, and the weight to be given

to the evidence. Williams v. 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, the jurors may accept one version of the facts and reject another, and

they may reject any part ofa witness'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).

Applicable Law

The State bears the burden of proving that the accused is the person who committed the
charged offense. See Phillips v. State, 164Tex.Crim. 78, 297 S.W.2d 134, 135 (Tex.Crim.App.

1957). The identity ofthe accused may be 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 preferred procedure, is not required if other evidence 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 of an 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'

sufficient for the jury to 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 other evidence. He admitted to Pantoja

that he drove the sedan identified by 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
description ofthe driver matched Appellant's physical stature and appearance.

Appellant asserts evidence that he resembled the driver does not constitute proof beyond 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 of his testimony, not to its admissibility; therefore, the lack of a 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, the jury was within its exclusive province to accept that testimony at face

value or to disregard part or all of it 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 of Salcido's testimony or substituting our judgment for that ofthe jury.

See Williams, 235 S.W.3d at 750.

Appellant's second issue is overruled.

CHARGE ERROR

In his third issue, Appellant contends the charge was erroneous in two respects.10 First,

because it impermissibly permitted the jury to convict him of capital murder as a coconspirator

under Section 7.02(b) of the Penal Code without requiring the State to prove that he had the

specific intent to kill Cedillo. Second, because it did not require that the jurors agree unanimously

"on which subsection of 7.02 was applicable . . . ."

10 We review charge error on appeal by determining whether error occurred, and if so, 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 obtain reversal; ifhe did not, the record must demonstrate "egregious harm." Id.

at 743-44.

11
Specific Intent to Kill

Appellant's first complaint concerns the inclusion of Section 7.02(b) in the jury charge.

Appellant does not dispute that the law of parties, including the theory of party responsibility set

forth in Section 7.02(b)11, applies to capital murder. See Johnson 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 of parties 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 of parties, 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 of parties applies to the offense of capital murder . . . ."). He does, however, dispute the

applicability of Section 7.02(b) here. Appellant asserts Section 7.02(b) applies "only in [capital

murder] cases where a showing was 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 of conduct" 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

intent to commit it, ifthe offense was committed in furtherance ofthe unlawful purpose and was one

that should have been anticipated as a result ofthe carrying out ofthe conspiracy.

Tex. Penal Code Ann. § 7.02(b)(West 2011).

12 Appellant asserts "there was noevidence advanced that the kidnapping was conspired over, nor was itshown that

the murdershouldhave been anticipated in carryingout the conspiracyto commit kidnapping." He does not argue

that the evidence was insufficientto support his convictionbasedon a theory of party liabilitygenerally.

12
intent 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 of capital murder as a coconspirator under Section 7.02(b),

the State need only prove that the person had both the mens rea to engage in the conspiracy and the

culpable mental state to commit the 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 contention that 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 English requires a trial court to instruct the jury in all capital murder cases 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 theory of party responsibility set forth in Section 7.02(b).

Appellant reads English too broadly.

In English, the appellant was convicted of capital murder. 592 S.W.2d at 950. The

charge authorized the jury to 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 the jury 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 another co-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

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

On appeal, the appellant argued the charge impermissibly allowed the jury to convict him

of capital murder if it found he committed the murder during the course of a conspiracy to commit

robbery, rather than finding he committed an intentional murder in the course of a robbery or

attempted robbery. Id. at 952. The court disagreed, concluding Section 7.02(b) is applicable to

capital murder cases and the jury was properly charged. Id. at 955. In remarking on the charge

in question, the court noted that the trial court, "in a commendable act of caution," cautioned the

jury it could not convict the appellant unless it found beyond a reasonable doubt, under each theory

contained in the charge, he had specific intent that the victim be 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 the jury

charge.

Jury Unanimity

Appellant's second complaint concerns the absence in the charge of a requirement that the

jury unanimously decide under which theory of party 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 another if... 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.Penal Code Ann. § 7.02(a)(2)(West 2011).

14
failure to require all twelve jurors to agree on which theory of party 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 of the offense but is generally not

required on the alternate modes or means of commission." 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 which an accused may be held accountable for the conduct

of another who has committed the constituent elements of a criminal offense . . . ." Leza, 351

S.W.3d at 357. Thus, ifthe jury determines that the accused is guilty of every constituent element

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 of Cedillo—under

three alternate theories of criminal culpability, two of which were based on Section 7.02. The

jury chargerequired unanimityregarding Appellant's culpability for the capitalmurderof Cedillo,

but did not require unanimity as to the manner in which he was culpable—as a principal or as a

party. "Leza makes it clear that multiple theories of party liability 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 "because the 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, the jury in this case was not required to unanimously agree on the

theory of criminal culpability supporting their unanimous conclusion of Appellant's guilt as either

a principal 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 of the 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 the jurors designate which of the alternative means of committing 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 exact party accountability might be.

Appellant's third issue is overruled.

CONCLUSION

The trial court's judgment is affirmed.

16
September 12,2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

Rivera, J. (Not Participating)

(Do Not Publish)

17
The State of Texas 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 of Texas

Events & Orders of the 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 (Comment THE SAID DEFENDANT DIED ON 08/17/2009 Sentence Date: Jan 28 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 1/1
11/5/2014 casesearch.epcounty.com/PublicAccess/CaseDetail.aspx?CaselD=5277782

Register of Actions

Case No. 990D02689

:t=j=nai»rfmnij

The State of Texas 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 of Texas

Events & O rders of the Court

DISPOSITIONS

Disposition (Judicial Officer: Barill, AngieJuarez)

1. MURDER INTENTIONALLY CAUSE DEATH

Dismissed

OTHER EVENTS AND HEARINGS

Other

Indictment (OCA)

Vol./Book 1384. Page 1366

Hearing (8:00 AM) (Judicial Officer Barill, 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

Lead Attorneys

Documentarv Evidence Appendix Exhibit B
Documentary Evidence Appendix Exhibit C

OFFENSE: MURDER

'"?' ^INDICTMENT

0 PID/CONTRL NO. 11^696/05-06741.

STATE OF TEXAS ^jfT

VS.

ALFREDO HOLGUIN (A&)

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

the

nd Jurors for the County of El Paso, Stat jtm irjexas, duly organized as such, at

Term, A.D., 2005 of the m*" Judicial District Court for

said County, upon their oaths in said Court, present that on or about the 6th day of October,

2002 and anterior to the presentment of this indictment, in the County of El Paso 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

ANTHONY CEDILLO by shooting MARK ANTHONY CEDILLO with a firearm.

And it is further presented that the said Defendant used and exhibited a deadly weapon,

to-wit:.a firearm, during the commission of and immediate flight 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 further presented that the said Defendant used and exhibited a deadly weapon,

to-wit: a firearm, during the commission of and immediate flight from said offense,

AGAINST THE PEACE AND DIGNITY OF THE STATE.

FILED THE

$Ep 20 2005

THE STATE OF TEXAS

COUNTY OF EL PASO

Icertify that the foregoing is a true and correct copy of the original Indictment Oft-fifei" mV office- Given under my nand

and seal of the court at my office in El Paso, Texas on the SEP ^ ^ ^ -"—'

GILBERT SANCHEZ, District Clerk, El Paso County, Texas

Deputy

/7/->

BAIL AMOUNT:;&&>p9& by

DEPUTY
Documentary Evidence Appendix Exhibit D

The Defendant, ALFREDO HOLGUIN, stands charged by Indictment with

CAPITAL MURDER, alleged to have occurred onor about the 6th day of October 2002.

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, in El Paso County, State of Texas that ALFREDO HOLGUIN,

did then and there intentionally cause the death of MARK ANTHONY CEDILLO by

shooting him with a firearm, andALFREDO HOLGUIN was in the course of committing

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 of MARK

ANTHONY CEDILLO by shooting him with firearm and Benito Holguin was then and

there in course of committing or attempting to commit the offense of kidnapping, and you

further find beyond a reasonable doubt that ALFREDO HOLGUIN, acting with intent 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 of kidnapping, 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 of MARK 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 been anticipated as a result of carrying out the conspiracy, 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 been defined, intentionally or knowingly 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 guilty of

Capital Murder, but guilty ofthe lesser included offense of UNLAWFUL RESTRAINT

then you will so indicate in Verdict Form B.

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

thereof, you will acquit the Defendant, ALFREDO HOLGUIN, of CAPITAL MURDER,

as charged in the indictment and the lesser included offense of UNLAWFUL

RESTRAINT. (Verdict Form C)

MANNER OF DELIBERATIONS

a. In order to return a verdict, each juror must agree thereto.

b. Jurors have a duty to consult with one another to deliberate with a view of

reaching an agreement, if it can be done without abrogating individual judgement.
Documentary Evidence Appendix Exhibit E

TEXAS DEPARTMENT OF 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

ALLAN B. 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 ForensicDNA Analysis

Submission Information:

2a properly sealed large white file box on January 30, 2012 by Det. Samaniego

Evidence Description, Results of Analysis and Interpretation:

Portions ofthe items were extracted by a method that yields DNA.

The extracted DNA was subjected tothe Polymerase Chain Reaction (PCR) and examined atthe

following STR loci: D8S1179, D21S11, D7S820, CSF1PO, D3S135B, TH01, D13S317 D16S539

D2S1338, D19S433, vWA, TPOX, D18S51, Amelogenin, D5S818, and FGA.

3-01 - Swab from left fingernail clippings (item 1)

The partial DNA profile from the swab of the left fingernail clippings is consistent with the DNA profile of Mr. Cedillo. Mr. Cedillo cannot be excluded asthe contributor of the profile atthe following lociD8S1179, D21S11, D7S820, CSF1PO, D3S1358, TH01, D13S317, D16S539, D19S433, vWA,

TPOX, D5S818, and FGA. At these loci, the probability ofselecting an unrelated person atrandom

who could be the source ofthis DNA profile isapproximately 1in 4.975 quadrillion for Caucasians, 1

in 185.7 quadrillion for Blacks, and 1in 981.4 trillion for Hispanics. To a reasonable degree of

scientific certainty, Mr. Cedillo isthe source of this profile (excluding identical twins).

3-02 - Swab from right fingernail clippings (item 2)

The DNA profile from swab of the right fingernail dippings is consistent with a mixture. Mr. Cedillo

cannot beexcluded as the contributor ofthemajor component in this profile. The probability of

selecting an unrelated person atrandom who could bethe source ofthe major component in this

profile is approximately 1 in 11.89 quintlllion for Caucasians, 1 in898.5quintillion for Blacks, and 1 in

3.209 quintillion for Hispanics. Toa reasonable degree ofscientific certainty, Mr. Cedillo isthe

source ofthemajor component in this profile (excluding identical twins). Mr. Alfredo Holguin is

excluded as a contributor to the majorcomponentinthis profile. Due to the low level of data, no

DNA comparisons will be made to the minor component.

3-03 - Known blood sample from the victim (item 3)

The DNA profile was used for comparison purposes.

3-04 - Stain from victim's blue jeans (item 4)

ACCREDITED BY THE AMERICAN SOCIETY OFCRIME LABORATORY DIRECTORS • LABACCREDITATION BOARD

COURTESY • SERVICE • PROTECTION Page 1 of 2
Laboratory Case Number

L4E-41048 A9°nCy CaSe Number Offense Date

02-279195 10/06/2002

M^S^SJS^a^^arr'5"Wlth the DNA ^ *Mr. CediHo unrelated person at r^^a^^°' ,he, Pr°fi,e- The Probabili'y of selecting an

quintillion for CaucasiansTMIn Mf 1i^TsT ^ h?^ "appr°xiTMteIy 1'" H-88

areasonable degree ofscientific^"Mr Z^otlTsourr ^ ^f0" ** HiSpaniCS' T° twins). y' r Ledlll° ls tne source of this profile (excluding identical

3-05 -Stain from victim's red t-shlrt (item 5)

Mr.^dlP;0a?no;°bme Itludt^hrcon?nt'" ',T^^ »» DNA ^ °< Mr. Cedillo unrelated person a, ra^m:0 1 ^ :;:S:eril%°fSe,edin9an '

quintillion for Caucasians, 1in 898.5 quWB^^Sl "^PTSL" appr°ximate|y 1m11.89

areasonable degree of scientific certainty Mr ?1 t '" 32°9 qUinti,lion for Hl'spanics. To twins). CCerta'nty- Mr Ced,ll° ,s the sTMTM of this profile (excluding identical

3-06 -Stain from victim's left tennis shoe (item 6)

an unrelated person atr^^^,^^^^"--TMe P~*-bilHy of se.ecting

(excluding identical Zl) *' ^ Cedi"° 'S the S0Urce of this Pr°«'«

3-07 -Right buccal swabs from Alfredo Holguin (item 9A)

The DNA profile was used for comparison purposes.

Investigative Leads:

Please refer to a previous report issued on November 1? ?m 1/, ,„^ Joseph Correa, two additional reports issued on NovemLf22 20u2 bv 1^Tr " UE"35°59) by February 16, 2012 by Nicolas Ronquillo. NOVember 22, 2002 by Joseph Correa, and one issued on

A^profile obtained from Mr. Alfredo Holguin has been entered into the Combined DNA Index System

Disposition:

DNA exlracts have been re.aiSto nt^Sl h , T Piously collected Item, and the rasulSng

Th.s report has been electrpnically prepared and approved by:

Nicolas Ronquillo y_^_.

Forensic Scientist III

Texas DPS El Paso Crime Laboratory

TaDPS J 28 12

Issue Date: March29, 2012

Page 2 of 2
Appendix

(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. I was 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 his
EL 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 02O
Witness^-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

to: Det. us'.. J. Par ~ ••- ^..coja Jr .

Jesus Enrique Salcido

Exhibit Q

ay/o ^

V^Z^Z*0TM ^.l/.nd^unt.rUy providing this

second witness State,ent to. Detective Pantoja

Today I agreed 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] a further 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 he f TMf4?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-