NO. ________________
IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

_______________________________________________

ARTURO CHAVEZ

Petitioner,
V. STATE OF TEXAS

Respondent.

____________________________________________________ On Appeal from the 338 th Judicial District Court for Harris County, Texas

- Trial Court No. 1338052

Appeal No. 01

- 14

- 00232

- CR

_________________________________________________________

ARTURO CHAVEZ’ S PETITION FOR DISCRETIONARY REVIEW

______________________________ ___________________________
D E G UERIN , D ICKSON , H ENNESSY & W ARD Matt Hennessy State Bar No. 00787677 1018 Preston, 7 th Floor Houston, Texas 77002 (713) 223

- 5959 Telephone (713) 223

- 9231 Facsimile July 29, 2015 ATTORNEY FOR PETITIONER

ORAL ARGUMENT REQUESTEDii 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 Aiii 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 [1 st 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

... ... ... ... ... ... ... . 31 Statement Regarding Oral Argument This is an accomplice

- witness case. T he court of appeals misapplied the standard of review in concluding that there was non

- accomplice testimony that tended to connect Petitioner “with planning the commissio n 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 C ase 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 connec t 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 t he 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
reheari ng 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, non

accomplice 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 tie d 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 hi m 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 remaini ng 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
offe nse.” 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.3d4

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, shou ld 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 diffe rent “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 evide ntiary 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. Br ief 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 s hot 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 inves tigators 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 drov e 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 these6

non - accomplice witnesses, W. Navarrete, provided testimony regarding Petitioner’s
conduct before the murder. Id. at 5. The testimony of the other two witne sses, 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. Nav arrete 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

- accompli ce 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 t hat 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 court7

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 ide ntified 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:
Velas quez, 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 a gain 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 brot her 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. C havez, 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 told8

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 [1 st 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 Cha vez 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 c ourt 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 appeal s was Chavez’s ex

- wife, C. Benavidez. The court summarized her testimony as follows: C. Benavid ez 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 t o 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 Barrer a 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, Barre ra 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 corroboratin g 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.
A ppendix 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 suf ficiently 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 r easons.

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 convic tion 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 violat ed 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 tha t 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.
Cr im. 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 co urt’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 be fore 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 weap ons 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 mur der....[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 the re was of limited significance. We stated that there was essentially nothing tending to connect [C ruz] 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

- ac complice 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 pr obably 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 w ere 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 n ear 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 Brow nsville. 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 prope rty 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 Cru z’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 t o 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 fur ther 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’ relianc e 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 (emphasi s 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 Brief16

at 16

- 17; Pe t. 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 l eft 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 s aid 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 wh at 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 de fendant 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 S tate admitted letters from Winco tt to the same woman in which he similarly “express[ed] sorrow for the bad things he had done.” Id. The S tate 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 te nd 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 co urt of appeals but the court dispensed with the case, stating that Wincott “held that the non

accomplice 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 Pet itioner 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 c ourt 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,
D E G UERIN , D ICKSON , H ENNESSY & W ARD /s/Matt Hen nessy State Bar No. 00787677 matt @deguerin.com 1018 Preston, 7 th Floor Houston, Texas 77002 (713) 223

- 5959 Telephone (713) 223

- 9231 Facsimile19 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 2 9, 2015 : Kimberly Stelter Assistant District Attorney 1201 Frankli n, Suite 600 H ouston, Texas 77002 Lisa McMinn State Prosecuting Attor ney P O Box 13406 Austin, Texas 78711
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