NO. ________________

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

_______________________________________________

ARTURO CHAVEZ

Petitioner,

V.

STATE OF TEXAS

Respondent.

____________________________________________________

On Appeal from the 338th Judicial District Court for

Harris County, Texas - Trial Court No. 1338052 

Appeal No. 01-14-00232-CR

_________________________________________________________

ARTURO CHAVEZ’S

PETITION FOR DISCRETIONARY REVIEW

_________________________________________________________

DEGUERIN, DICKSON, HENNESSY & WARD

Matt Hennessy

State Bar No. 00787677

1018 Preston, 7th Floor

Houston, Texas 77002

(713) 223-5959 Telephone

(713) 223-9231 Facsimile

July 29, 2015 ATTORNEY FOR PETITIONER

ORAL ARGUMENT REQUESTED
ii

TABLE OF CONTENTS

Table of Contents.............................................................. ii

Table of Authorities............................................................ iii

Statement Regarding Oral Argument........................................ 1

Statement of the Case.......................................................... 1

Statement of Procedural History............................................. 2

Grounds for Review............................................................ 2

Argument........................................................................ 3

Conclusion....................................................................... 18 

Certificate of Service........................................................... 19

Appendix A
iii

TABLE OF AUTHORITIES

Cases

Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007).................. 8

Cruz v. State, 690 S.W.2d (Tex. Crim. App. 1985)........................... 11

Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997)......... 10

Hernandez v. State, 1997 WL 33641950 at *6 (Tex. App.—Corpus

 Christi 1997, no pet.)............................................................ 11

Holladay v. State, 709 S.W.2d 194, 199–200 (Tex. Crim. App. 1986)..... 4

McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997)............. 3

Miller v. State, 177 S.W.3d 177 (Tex. App.—Houston [1st Dist.] 2005,

 pet. ref’d).......................................................................... 8

Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983)............ 4

Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).............. 12

Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009)........... 4

Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011)............... 3

Wincott v. State, 59 S.W.3d 691 (Tex. App.—Austin 2001, pet. ref’d).... 12

Statutes

Article 38.14 of the Texas Code of Criminal Procedure...................... 3
1

Statement Regarding Oral Argument

This is an accomplice-witness case. The court of appeals misapplied the 

standard of review in concluding that there was non-accomplice testimony that 

tended to connect Petitioner “with planning the commission of the offense” 

(Appendix A at 9), and it separately failed to assess the reasonableness of the jury’s 

chosen view of the non-accomplice testimony. Oral argument will assist the Court 

in addressing the grounds raised in this petition.

Statement of the Case

A jury convicted Petitioner of murder based on accomplice-witness testimony 

and sentenced him to life in prison. CR. 6 (Indictment); 609-10 (Judgment). The 

court of appeals held that there was sufficient non-accomplice evidence that tended 

to connect Petitioner to the commission of the offense and affirmed the conviction. 

This petition identifies the flaws in the court of appeals’ reasoning. The lower court 

was able to affirm the conviction only by using a standard that diminished the burden 

that the State must carry in an accomplice-witness case, and by failing to consider 

whether the jury’s chosen view of the evidence was reasonable.
2

Statement of Procedural History

The court of appeals issued its decision on May 28, 2015. No motion for 

rehearing was filed. This Court granted an extension of time to file a petition until 

July 29, 2015.

Grounds for Review

1. Whether the court of appeals correctly applied the standard of review 

in assessing the sufficiency of the non-accomplice evidence in this case.

2. Whether, under the correct application of the standard of review, nonaccomplice testimony that Petitioner once borrowed a friend’s car tended to connect 

Petitioner to the commission of the crime when there was no non-accomplice 

evidence that tied the car to the offense.

3. Whether the court of appeals assessed the reasonableness of the jury’s 

chosen view of the non-accomplice evidence before deferring to that view.

4. Whether the court of appeals erred in misinterpreting the quality and 

quantum of evidence necessary to corroborate accomplice testimony in a murder 

case.

5. Whether it was reasonable to conclude that non-accomplice evidence 

that Petitioner assisted the perpetrators only after the murder had been committed 

sufficiently connected him to the actual commission of that offense.
3

Argument

A. Reasons for Review.

While the court of appeals correctly identified the standard of review in an 

accomplice-witness case, it failed to rigorously adhere to that standard in its review 

of this case. Under Article 38.14 of the Texas Code of Criminal Procedure, “A 

conviction cannot be had on the testimony of an accomplice witness unless 

corroborated by other evidence tending to connect the defendant with the offense 

committed; and the corroboration is not sufficient if it merely shows the commission 

of the offense.” The court of appeals expressly accepted that it must “eliminate from 

consideration the accomplice testimony and then examine the other inculpatory 

evidence to ascertain whether the remaining evidence tends to connect the defendant 

with the offense.” Appendix A at 3 (quoting McDuff v. State, 939 S.W.2d 607, 612 

(Tex. Crim. App. 1997)). But the court failed to eliminate the accomplice’s 

testimony in its review of the non-accomplice evidence despite this 

acknowledgement. If the court of appeals had properly applied the standard of 

review, it would have concluded that there was no non-accomplice evidence to 

support a finding that Petitioner participated in “planning the commission of the 

offense.” See Appendix A at 9. Such a conclusion would have diminished “the 

combined force of the non-accomplice evidence,” and weakened the already shaky 

ground upon which the verdict rested. See id. at 4 (citing Smith v. State, 332 S.W.3d 
4

425, 442 (Tex. Crim. App. 2011); Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. 

App. 1983)).

This Court has held that “when there are two permissible views of the 

evidence (one tending to connect the defendant to the offense and the other not 

tending to connect the defendant to the offense), appellate courts should defer to that 

view of the evidence chosen by the [jury].” Simmons v. State, 282 S.W.3d 504, 508 

(Tex. Crim. App. 2009). Such “[c]onfirmation as to the defendant’s connection to 

the offense, however, should be by independent evidence from which the jury may 

reasonably be satisfied.” Id. (quoting Holladay v. State, 709 S.W.2d 194, 199–200 

(Tex. Crim. App. 1986) (emphasis added)). The court of appeals seems to have 

misread Simmons’ guidance regarding different “permissible views of the evidence” 

to mean that it should defer to the jury’s chosen view of the evidence without regard 

to whether the jury’s view was reasonable. If reasonableness of the jury’s view had 

been part of the court’s analysis, the evidentiary shortcomings identified in 

Petitioner’s opening brief and his reply brief should have led the court to conclude 

that the non-accomplice evidence regarding Petitioner’s conduct after the murder 

did not tend to connect him to the offense. See App. Brief at 15-21; Reply Brief at 

5-16. However, none of those evidentiary deficiencies is addressed in the court’s 

opinion. Proper application of the law in this case should have resulted in an 

acquittal.
5

B. Background.

The decedent, Santiago Garcia, was shot and killed on a sidewalk near a park 

in Baytown in November 2004. Appendix A at 2. The Baytown Police Department 

began their investigation immediately, but the case soon went cold. Id. A break 

came in 2011 when new information led the Baytown investigators to interview 

Daniel Torres. Id. Torres confessed to participating in Garcia’s murder in the 

interview, and he implicated Petitioner and Carlos Barrera. Id. Petitioner, Barrera 

and Torres were charged with Garcia’s murder soon thereafter.

Torres agreed to testify against Petitioner in return for the State’s 

recommendation for a fifteen-year sentence. Id. Torres told the jury that he drove 

Barrera to the park in a borrowed, green Impala where Barrera shot Garcia. Id. at 2, 

9. Torres drove from the scene with Barrera, and they later met up with Petitioner 

at his father’s home. Id. at 10. According to Torres, he and Barrera committed the 

murder at Petitioner’s direction, but no non-accomplice evidence supported his 

claim. Id. at 2, 9.

C. Non-Accomplice Evidence.

The court of appeals held that the “combined force” of the testimony of three 

non-accomplice witnesses tended to connect Petitioner to the commission of the 

offense, and therefore the non-accomplice evidence together with Torres’s testimony 

provided a sufficient basis for the conviction. See id. at 3, 5-7. Only one of these 
6

non-accomplice witnesses, W. Navarrete, provided testimony regarding Petitioner’s 

conduct before the murder. Id. at 5. The testimony of the other two witnesses, F. 

Velasquez and C. Benavidez, was limited to events that occurred after the 

commission of the offense. Id. at 5-7.

1. Non-Accomplice Evidence—Before the Murder.

Navarrete testified that Petitioner borrowed his green Impala on one occasion, 

but he did not remember the date of the loan. Id. at 5. Chavez asked to borrow the 

car because someone owed him money, and he did not want to be seen in his own 

car. Id. Navarrete did not offer any testimony that connected his car to Garcia’s 

murder or to Torres or Barrera—he did not know them. See id. at 5, 10. In assessing 

this testimony, the court of appeals concluded: “Although [Navarrete] could not 

remember the date, [his] description of events corroborated Torres’s testimony about 

the timing and circumstances of borrowing the green Impala.” Id. at 7. But that is 

not the test for determining the sufficiency of non-accomplice evidence. The test is 

whether non-accomplice evidence—standing alone—tends to connect a defendant 

to the commission of the offense. See id. at 4 (citing Smith v. State, 332 S.W.3d 425, 

442 (Tex. Crim. App. 2011); Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. 

App. 1983)).

The only evidence that tied Navarrete’s green Impala to Garcia’s murder came 

from Torres who was an accomplice as a matter of law. See id. at 5 (trial court 
7

instructed jury that he was an accomplice). Without Torres’s testimony, all that the 

record supports is that Chavez borrowed Navarrete’s car at some unidentifiable time 

in the past. There was absolutely no non-accomplice evidence to connect 

Navarrete’s car with Garcia’s murder. The fact that Chavez once borrowed it, 

without any additional non-accomplice evidence, did not tend to connect Chavez to 

the crime. The court of appeals was wrong to conclude otherwise. This failure to 

correctly apply the law warrants this Court’s review.

2. Non-Accomplice Evidence—After the Murder.

The remaining non-accomplice testimony identified by the court of appeals 

came from F. Velazquez and C. Benavidez. See Appendix A at 5-7. Both of them 

related events that occurred after the completed offense. Id. 

a. F. Velasquez.

The court summarized Velazquez’s testimony as follows:

Velasquez, Chavez’s friend, testified that Chavez called him on 

November 14, 2004, the day before the murder. In the conversation, 

Chavez reported that Garcia had tried to break into his house. Later 

that night, early on November 15, Chavez called Velasquez again and 

said, “[T]hey had killed Garcia.” Chavez told Velasquez that Barrera 

and Torres were on their way to Velasquez’s house in Beaumont. 

Barrera and Torres arrived at Velasquez’s house about forty-five 

minutes later. Chavez, his family, and his brother also arrived at 

Velasquez’s home. Chavez, his brother, Barrera, Torres and Velasquez 

went into a tent on Velasquez’s property. Inside the tent, Chavez tried 

to burn the gun with a plumber’s torch; when it would not melt, Chavez 

took the gun apart. Chavez, Torres, and Barrera each took some of the 

parts, and Chavez threw a part of the gun in the water behind the house. 

Shortly afterward, everyone left Velasquez’s house. Chavez told 
8

Velasquez that he planned to go to Mexico so that “everything would 

cool down.”

Id. at 5-6.

The court of appeals concluded that “Velazquez’s testimony about Chavez’s 

attempts to destroy a gun on the night of Garcia’s murder tends to connect Chavez 

to the crime,” citing Miller v. State, 177 S.W.3d 177 (Tex. App.—Houston [1st Dist.] 

2005, pet. ref’d) and Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007). Id.

at 7. However, neither case is on point.

Miller is a self-defense case. See Miller, 177 S.W.3d at 180. The defendant 

testified that he shot the complainant because he was in fear of his life. Id. The 

accomplice-witness rule is never even mentioned in that case.

Castillo is an accomplice-witness case, but the non-accomplice evidence in 

that case is vastly different than here. The court summarized the non-accomplice 

evidence as follows:

The...non-accomplice testimony includes evidence that appellant was 

seen wearing the victim’s necklace shortly after the murder, that 

appellant was seen with a gun and with the accomplices in the hours 

before the murder, that the victim made a plan just prior to his murder 

to meet one of the accomplices, that appellant told a fellow inmate that 

he and accomplices had planned a robbery, that appellant shot the 

victim multiple times when the victim attempted to run, that Lucinda 

overheard appellant admit to Teresa that he was responsible for 

shooting someone, and that Brown overheard a similar conversation 

between appellant and Teresa. This evidence is sufficient to “tend to 

connect” appellant with the murder and robbery. Art. 38.14.
9

Castillo, 221 S.W.3d at 693. There was also testimony that the appellant said that 

he had hidden a gun and a bullet-proof vest in a field. Id.

In stark contrast to Castillo, there was absolutely no non-accomplice evidence 

that tended to connect Chavez to events that occurred before Garcia’s murder or to 

the murder itself.1 The court of appeals’ reference to Miller and Castillo as support 

for the conviction evinces a fundamental misinterpretation of the evidence in this 

case, and suggests that the court did not properly evaluate the reasonableness of the 

jury’s verdict.

b. C. Benavidez.

The other non-accomplice witness relied upon by the court of appeals was 

Chavez’s ex-wife, C. Benavidez. The court summarized her testimony as follows:

C. Benavidez testified that Chavez woke her up in the middle of the 

night of the murder, telling her that they were not safe in the house and 

needed to leave. Chavez, Benavidez, and their children went to a hotel 

and stayed there for a few hours. Then they drove to Velasquez’s house 

in Beaumont. Benavidez remained in the parked car outside the house, 

but she saw Barrera and Torres from the car. She saw Chavez, Barrera, 

Torres, and Velasquez go inside; she remained in the car for an hour or 

two. Chavez and Barrera then returned to the car. Chavez drove to a 

pier. On the way, Chavez and Barrera discussed Garcia’s murder, 

stating that they did him a favor because he had been doing drugs and 

he could be with his deceased father. When they arrived at the pier, 

Barrera exited the car and dropped an object into the water.

Later that day, Chavez, Benavidez, and their children left for Mexico. 

They returned from Mexico two months later. Chavez openly talked 

 

1 Navarrete’s green Impala provided no such connection.
10

about the murder with other people in front of Benavidez during the 

years between the murder and the trial.

Appendix A at. 6-7.

The court of appeals concluded:

Benavidez’s testimony that Chavez moved their family in the middle of 

the night to a hotel, then to Beaumont and Mexico, is evidence of 

Chavez’s flight and consciousness of guilt. Velasquez similarly 

testified that Chavez planned to go to Mexico until everything calmed 

down after Garcia’s murder. Evidence of a defendant’s flight may tend 

to connect him with a crime when combined with other corroborating 

circumstances. See Hernandez v. State, 939 S.W.2d 173, 178 (Tex. 

Crim. App. 1997) (“Evidence of flight and guilty demeanor, coupled 

with other corroborating circumstances, may tend to connect a 

defendant with a crime.”) [(citation omitted)]; Miller, 177 S.W.3d at 

184 (flight immediately after shooting is circumstantial evidence of 

guilt). Finally, Benavidez testified that Chavez took partial credit for 

the murder when he spoke with Barrera stating that they had done 

Garcia a favor by killing him.

Appendix A at 7.

As already discussed, Miller is not an accomplice-witness case. In Miller, the 

defendant confessed to the killing on the stand and sought to explain it. See Miller, 

177 S.W.3d at 180. The issue under review was whether the State had sufficiently 

disproven the claim of self-defense. The court’s analysis of the evidence in that case 

provides no guidance here. While Hernandez is an accomplice-witness case, the 

court of appeals’ reliance on it is misplaced here as well, but for different reasons.

3. Hernandez v. State.
11

Hernandez is an accomplice-witness case with an unusual procedural history. 

On initial review, the court of appeals reversed Hernandez’s conviction and ordered 

an acquittal because the non-accomplice evidence did not tend to connect the 

defendant to the crime. See Hernandez, 939 S.W.2d at 176-77. The court of appeals 

relied heavily on Cruz v. State, 690 S.W.2d (Tex. Crim. App. 1985), in reaching this 

conclusion. See Hernandez, 939 S.W.2d at 176-77. This Court disagreed with the 

court of appeals’ reliance on Cruz, reversed the court of appeals for failing to 

properly consider the facts before it, and remanded the case for reconsideration. 

Hernandez, 939 S.W.2d at 179. On remand, the court of appeals reversed the 

conviction a second time, holding that the accomplice’s testimony from a prior trial 

should not have been admitted at Hernandez’s trial. See Hernandez v. State, 1997 

WL 33641950 at *6 (Tex. App.—Corpus Christi 1997, no pet.). Admission of that 

testimony violated the confrontation clause. Id. This Court’s disagreement with the 

court of appeals in Hernandez was, therefore, based on an analysis of facts that never 

should have been considered by a jury in the first place. For that reason, Petitioner 

suggests that a court of appeals’ reliance on the specific factual analysis—as opposed 

to general statements of law—in Hernandez merits cautious review.

Procedural history aside, the Hernandez court granted review because the 

lower court “failed to take into account facts which distinguish Cruz from the instant 

case and ignored caselaw which speaks directly to the significance of such facts.” 
12

Hernandez, 939 S.W.2d at 177 (citing Munoz v. State, 853 S.W.2d 558, 559 (Tex. 

Crim. App. 1993) (noting each case must be considered on its own facts and 

circumstances)). Here, review is warranted to address the court of appeals’ similar 

failure to distinguish the facts in Hernandez from the facts of this case, as well as 

the lower court’s disregard for the holdings in Cruz and Wincott v. State, 59 S.W.3d 

691 (Tex. App.—Austin 2001, pet. ref’d). Cruz and Wincott speak directly to the 

to the facts of this case.

4. Cruz v. State.

An examination of how this Court compared the facts before it in Hernandez

with those in Cruz is instructive. The Hernandez court summarized the facts in Cruz 

as follows:

No connection was shown between the rifle and pistol [Cruz] had been 

seen with at some, unspecified time prior to the murder, and the 

weapons used to kill [the victim]. The State never even proved the 

caliber of the murder weapons or bullets. Similarly, the State does not 

explain the significance of the discovery of the Christmas gift in the 

truck, in connecting [Cruz] to the murder....[Cruz] was never linked to 

the truck, and the discovery of the truck and the Christmas gift was 

never connected to the murder.

[T]he testimony only narrowed the time of death between December 

24th and December 27th. No one testified as to when they last saw 

[Cruz] on the victim’s property or with the accomplice. Since [Cruz] 

lived on the victim’s property, just 200 yards from the victim’s house, 

his presence there was of limited significance. We stated that there was 

essentially nothing tending to connect [Cruz] to the offense apart from 

the accomplice witness testimony; the fact that [Cruz] lived near the 

victim and went away following the murder did not tend to connect 

[Cruz] to the offense.
13

Hernandez, 939 S.W.2d at 177.

Contrasting the evidence before it with that in Cruz, the Hernandez court held 

that “there was non-accomplice evidence that [Hernandez] was with the accomplice 

on the night of the offense about two hours before the murder....Witnesses Richard 

Cisneros and Andres Salgado also testified that they saw [Hernandez] with [the 

victim] around 8:00 that night.” Id. at 178. “Cisneros further testified [Hernandez]

showed him a 12–gauge sawed-off pump shotgun a few months before the murder. 

Dr. Dahm, the pathologist who performed the autopsy, testified that a 12–gauge 

shotgun was probably used to kill the victim. Officer Perez, an investigating officer 

in the case, also stated that he believed a 12–gauge shotgun was used to commit the 

murder.” Id. The Court also noted that Hernandez “left Brownsville without 

explanation after the offense.” Id. All of this led this Court to conclude that the 

Hernandez court of appeals mistakenly relied on Cruz. See id. at 178-79.

As in Hernandez, the court of appeals in this case relied on the wrong 

authority in reaching its conclusion. However, the court of appeals’ mistake in this 

case was the opposite of that committed in Hernandez. In Hernandez, the court of 

appeals erred by concluding that the facts were similar to those in Cruz. Here, the 

court of appeals’ error was in refusing to recognize that the facts in this case have 

more in common with Cruz than Hernandez.
14

Unlike Hernandez, there was no non-accomplice evidence placing Petitioner 

with Garcia near the time of the murder, and there was no evidence that Petitioner 

had any connection with any weapon prior to the offense. Petitioner did leave home 

in Baytown soon after Garcia’s murder, but his flight is not analogous to 

Hernandez’s flight from Brownsville. Hernandez left after the murder and he was 

indicted shortly thereafter. Id. at 175. He remained a fugitive for more than four 

years, and was forcibly returned to Brownsville following his arrest. See id. After 

Garcia’s murder, Petitioner went to a family home in Mexico and returned two 

months later. See Appendix A at 7. He lived in Baytown until his arrest in 2012, 

more than seven years after the offense.

In Cruz, there was evidence that Cruz was on the victim’s property at the time 

of the murder. See Cruz, 690 S.W.2d at 248, 250-51. But the Cruz court found that 

evidence to be only a slight connection at best because Cruz lived there. Id. at 250-

51. That connection was not substantial enough to make Cruz’s flight to Mexico 

immediately after the murder a significant fact in the Court’s analysis, despite the 

fact that Cruz was arrested when he tried to cross the border in California. Id. at 

248, 250-51. Here, there was absolutely no evidence—accomplice, non-accomplice, 

direct or circumstantial—that Petitioner was at or near the scene of Garcia’s murder. 

Consequently, Petitioner’s travel to Mexico after Garcia’s murder is even less 

significant than Cruz’s immediate flight. See id. at 250-51.
15

Cruz and Hernandez were accused of being the primary actors—they were 

accused of actually shooting the victims. In both cases, there was evidence that Cruz 

and Hernandez possessed firearms similar to those used to commit the crimes before 

the crimes were committed. See Hernandez, 939 S.W.2d at 177-78. Petitioner was 

not accused of being the primary actor, and there was no evidence that he possessed 

a firearm of any kind prior to Garcia’s murder. These facts further distinguish 

Hernandez from this case, and they tend to distance this case from Cruz as well. 

There are fewer connections between Petitioner and the offense than were present in 

Cruz—a case that resulted in an acquittal. The court of appeals’ reliance on 

Hernandez was misplaced. The court should have been guided by Cruz.

5. Wincott v. State.

The court of appeals also erred in not recognizing the import of the factual 

analysis in Wincott v. State, 59 S.W.3d 691 (Tex. App.—Austin 2001, pet. ref’d). 

Drawing further on C. Benavidez’s testimony, the court of appeals noted that she 

“testified that [Petitioner] took partial credit for the murder when he spoke with 

Barrera stating that they had done Garcia a favor by killing him.” Appendix A at 8 

(emphasis added). That actual testimony regarding this point was ambiguous, and 

Petitioner’s brief and reply brief directed the court of appeals’ attention to Wincott

to assist in determining how to deal with such testimony. See Pet. Corrected Brief 
16

at 16-17; Pet. Reply Brief at 14-16. However, the court of appeals dismissed its 

applicability.

Benavidez claimed to have heard a conversation between Petitioner and 

Barrera soon after they left Velazquez’s house. She testified as follows:

[Petitioner and Barrera] were saying things like, you know, they did 

[Garcia] a favor because he was like gone already, like I guess [Garcia] 

had been doing drugs or something. And they were talking about that 

they did him a favor and nobody cared about him. They said something 

like the only person that cared about him was his dad and he was gone 

and now [Garcia] could be with his dad.

8 RR. 116. When asked to recount any other conversations she overheard regarding 

the murder, she said “I don’t remember exactly what was said.” 8 RR. 122. 

Benavidez never testified that Petitioner claimed responsibility for Garcia’s murder. 

She never testified that Petitioner said that “I” or “we” did it.

In Wincott, a woman testified about a conversation that she had with the 

defendant about the string of robberies he was accused of committing. Wincott, 59 

S.W.3d at 701. The woman said that Wincott told her that “he had done some bad 

things and...express[ed]...relief over being arrested.” Id. The State admitted letters 

from Wincott to the same woman in which he similarly “express[ed] sorrow for the 

bad things he had done.” Id. The State also admitted a letter from Wincott to a 

second woman in which he told her that “they should not talk about his arrest because 

he was ashamed of it.” Id. The court concluded that this evidence was inconclusive 

at best. Id. at 701. The court observed:
17

In their vague context—a conversation involving various subjects any 

of which could be construed as “bad things”—[Wincott’s] statements 

do not tend to connect him to the crimes with which he was charged. 

At most, they raise a mere suspicion that he is referring to his 

participation in the robberies. As noted, even a strong suspicion is 

insufficient to satisfy article 38.14.

Id. at 702.

Wincott’s statements were more clear and more direct than those attributed to 

Petitioner in this case. Wincott claimed personal responsibility and expressed 

remorse for personally committing misdeeds in a conversation about the robberies 

he was accused of at the time. In contrast, Petitioner did not say that he did anything. 

He said “they” did it. Wincott’s statements were held to be insufficient 

corroboration, and the court acquitted him. Id.

Petitioner made these points regarding Wincott’s holding to the court of 

appeals but the court dispensed with the case, stating that Wincott “held that the nonaccomplice testimony in that case connected the defendant to the accomplice and 

other suspects but did not connect him to the offense itself.” Appendix A at 9. The 

court did not address whether, in light of Wincott, a jury could have reasonably 

determined that Benavidez’s vague testimony amounted to Petitioner taking partial 

credit for Garcia’s murder. Nor did the court explain exactly what part of the murder 

a jury could have reasonably concluded that Petitioner supposedly took credit for.

The court of appeals erred in failing to be guided by Cruz, and it erred by 

dismissing the guidance offered by Wincott as well.
18

D. Conclusion.

Navarrete’s testimony that Petitioner borrowed his green Impala did not tend 

to connect Petitioner to Garcia’s murder because there was no non-accomplice 

evidence connecting the car to the offense. The court of appeals was able to 

conclude otherwise only by misapplying the law. The court also failed to correctly 

identify controlling caselaw, and distinguish this case from Hernandez. Review is 

warranted to address the court of appeals’ errors. 

Respectfully submitted,

DEGUERIN, DICKSON, HENNESSY & WARD

/s/Matt Hennessy

State Bar No. 00787677

matt @deguerin.com

1018 Preston, 7th Floor

Houston, Texas 77002

(713) 223-5959 Telephone

(713) 223-9231 Facsimile
19

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been delivered 

to the following parties via electronic filing on July 29, 2015:

Kimberly Stelter

Assistant District Attorney

1201 Franklin, Suite 600

Houston, Texas 77002

Lisa McMinn

State Prosecuting Attorney

P O Box 13406

Austin, Texas 78711

/s/Matt Hennessy

Matt Hennessy













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Petition for Discretionary Review

Filing Type EFileAndServe

Filing Code Petition for Discretionary Review

Filing Description

Reference Number

Comments

Status Rejected

Fees

Court Fee $0.00

Service Fee $0.00

Rejection Information

Rejection

Reason Time Rejection Comment

The petition for discretionary review does not contain a certification of compliance

with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain a copy
Envelope Details

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=e69b12ec-5709-42ab-9fef-dd56fa8b5eae[7/30/2015 3:56:46 PM]

Other

07/30/2015

03:53:38

PM

of the court of appeals opinion [Rule 68.4(j)]. In the future please combine the

separate parts of your petition into one contiguous file; do not electronically file a

petition and the Court of Appeals opinion(s) or other appendices as separate

documents. [Rule 9.4(j)(4)] You have ten days to tender a corrected petition for

discretionary review.

Documents

Lead Document PDR.pdf [Original]

Attachments PDR-Appendix.pdf [Original]

eService Details

Name/Email Firm Service Type Status Served Date/Time Opened

Alan Curry

Curry_Alan@dao.hctx.net EServe Sent Yes 07/30/201507:51:52 AM

Lisa McMinn

information@spa.texas.gov EServe Sent Yes 07/30/201508:41:53 AM