IN THE

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PATRICK SHERARD GUIILORY § J\Jft J g 2QJ5

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THE STATE OF TEXAS § ^C0A# 1U~X3~010W§^OB^,GiBfk

MOTION FOR REHEARING WITH LEAVE- TO AMEND

ORIGINAL PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, PATRICK SHERARD GUILLORY pro se, humbly.seeking a rehearing

pursuant to T.R.A.P. 64.1, and Leave to Amend the original petition pursuant

to T.R.A.P. 72.1 and 53.8 respectively. And would show the following in support:

CAUSE AND PREJUDICE

Petitioner has good cause to show that the 14th Court of Appeals reversibly

erred by unlawfully applying the "Law of Parties" principle in determining

whether there was sufficient evidence to support the Capital Murder conviction

(Appellant's Point of Error 1), and also in the appellate court's determination

on whether Appellant was entitled to a jury charge on lesser included offenses

(Appellant's Points of Error 3 and 4). This prejudiced Petitioner's right to a

jury verdict based on the evidence attributed to his individual conduct, which,

in this case, is legally insufficient to support the Capita]. Murder conviction.

STATEMENT OF CASE

Petitioner was indicted for the offense of Capital Murder. The indictment

alleged that Petitioner intentionally caused the death of Raul Amaro while

in the course of committing or attemting to commit robbery.(CR;7) Petitioner

entered his plea of "not guilty" and was tried by a jury. The jury found him

"guilty as charged in the indietment"(CR;307). Petitioner was sentenced to

life without parole (CR;308). Appeal was timely filed and affirmed by the 14th

Court of Appeals (COA #14-13-01037-CR). Petition for Discretionary Review was

filed and refused (PD-0163-15). Petitioner now seeks rehearing on the PDR.

1.
SUMMARY OF FACTS

Petitioner and Tyreon Young allegedly rode with Roy Vasquez to the local

Conoco station. Tyreon riding in the front seat and Petitioner in the back.

(RR3;146) Roy testified that Tyreon asked him (Roy) if he knew where they

could "hit a lick" which the state interpreted to mean "rob someone"(RR3;149-50).

Roy testified that petitioner was in possession of a firearm in the car.(RR3;154)

After arriving at the store Petitioner and Tyreon exited the vehicle and walked

to the back of the store where people were gathered drinking beer.(RR3;238)

Jose Gomez with the Harris County Sheriff's Dept. testified that he spoke

to witness Martinez in Spanish, the witness described what happened as a "fight"

in which he himself had been involved (RR3;91). Martinez described a total of

three gunshots, two at him, and one that hit Amaro killing him. (RR3;96). He

described the man which he fought with as having a black shirt and running south

while the other man ran west.(RR3;97).

~~ Gary Clayton with the Harris County Crime Scene Unit on cross-exam said that

Amaro still had 304.00 inside his wallet. (RR3;127).

Jennifer Turner with the Harris County Forensics Lab was unable to compare

the bullet taken from Amaro because there was no weapon to compare it to.(RR4;103)

Jason Brown with the Homicide Division of Harris County, testified that

there was video surveillance showing two black males walking toward the back

of the store at 7:00, neither of which were displaying a firearm. (RR4;135,136)

He also testified that there were no direct eyewitnesses to identify the person

who shot Raul Amaro (RR4;141).

Petitioner did not testify.
AMENDED GROUND FOR REVIEW

GROUND: Whether the 14th Court of Appeals reversibly erred by unlawfully

applying the "Law of Parties" principle in determining whether the evidence

was sufficient as a matter of law to support the conviction for Capital Murder

in the course of a robbery. And whether the law of parties error affected the

appellate court's decision regarding the right to a lesser included offense

jury charge?

HARM: If the culpability and actions of Tyreon Young are removed from the

equation, there is no question that the individual culpability and actions of

Petitioner are insufficient to support a conviction for Capital Murder in the

course of a robbery and that Petitioner was entitled to a lesser included jury

charge. Trial court judgement and sentence should have been reversed.

Argument and Authorities

The Court of Appeals decision was erroeneous and unlawful. In the instant

case, the murder was alleged to have been committed in the course of attempting

to commit or commiting robbery. The evidence shows that the person alleged to

have tried to take something from the decedant was not the same person who shot

the victim. The "Law of Parties" principle was used to "blend" the culpability

and actions of two or more individuals in the effort to meet the burden of proof.

The jury was never "lawfully charged" on the law of parties. The state allowed

the jury to combine the actions of at least two people. The appellate court

then followed the state's obvious reliance on the law of parties without a

determination as to whether the jury had been lawfully charged on the law of

parties, resulting in error.

"Under the law of parties, the state is able to enlarge the defendant's

responsibility to acts in which he may not be a principle actor. Because

our penal code generally criminalizes conduct of individuals, the state is

required to properly instruct the jury if it proceeds upon the law of parties.

3.
theory. When there is no charge on the law of parties a defendant may only be

convicted on the basis of his own conduct." Goff v. State,931 S. W.2d 537,544

(Tex.Crim.App. 1996).

In the instant case the parties theory was used to establish the underlying

offense of robbery, by a metaphorical mis-interpretation of a phrase allegedly

spoken by Tyreon Young prior to the incident. Tyreon Young was alleged to have

asked Roy Vasquez"where they could 'hit a lick'". The term hit a lick was

interpreted by the state to mean "rob someone". (RR3;149,150). This phrase

although ambiguous, was used to prove that Young and Petitioner had the intention

to rob someone "together", thus relying on the law of parties principle to blend

the actions of Tyreon Young in a manner that transferred culpability as well as

actions. For Capital Murder purposes the state must prove that the murder was

intentionally committed in the couse of robbery. The phrase hit a lick was

the point of reference to create a robbery by solicted semantics. The word

robbery was applied without question and accepted as proven. Then the "intent"

to rob was transferred to the "intent to kill" through a skillfull application

of the solicted semantics.

"The element distiguishing capital murder from felony murder is the intenti

onal murder in the course of a robbery." Threadgill v. State,146S.W.3d 654,655

(Tex.Crim.App.2004). "This Court [CCA] has defined "in the course of committing"

an offense... as conduct occuring in the attempt or commission, or during the

commission, or in the immediate flight after the attempt or commission of the

offense. In order for the murder to qualify as capital murder... the intent to

[commit the offense] must be formed prior to or concurrent with the murder."

Robertson v. State,871 S. W.2d 701,705 (Tex.Crim.App.1993)

The underlying offense of robbery in this case rests on semantics and not

facts. The appellate court followed the same trail of reasong that the state

created for the jury. Which blends conduct and transfers culpability.

4.
Upon closer review of the record and with the "correct interpretation"

of the phrase hit a lick, it is clear that the person who allegedly tried to

take something from Amaro is not the same person who possessed the gun. That

would show that the person who allegedly tried to take something from Amaro

did not use a gun to threaten harm or death as required by Texas Penal Code

§ 29.02. There is no evidence that shows that Amaro suffered any injuries

other than the gunshot wound. So the state could only rely on the presence

of a firearm, which was not shown to be in the. possession of the person who

tried to take something from Amaro. So the person could not have had the intent

to kill the person to take his property. And the person who was in possession

of the gun, did not participate in the attempt or taking of Amaro's property.

CONCLUSION

The Law of Parties was erroneously applied by the 14th Court of Appeals.

This resulted in a blending and transfer of culpability and action by two

or more individuals. When the culpability and actions are "seperated" it

is clear that the evidence is insufficient and cannot support a Capital

Murder, in the course of a robbery conviction. Petitioner clearly did not

intend to kill or intend to rob nor is there evidence to show that he did.

kill or rob anyone. The case is built on a metaphorical mis-interpretation

and a skillful use of semantics by the state.

PRAYER

Petitioner prays this Honorable Court of Criminal Appeals will grant

the Petition for discretionary Review upon rehearing and consider the

single ground to determine whether the 14th Court of Appeals unlawfully

applied the law of parties theory without propoerly chargeing the jury.

Ultimately reversing the court of appeals decision and remanding for re

hearing "without" using the law of parties.

Respectfully Submitted,

faMf, ^kdhsr^ fc-l^'r

Patrick Sherard Guillory
CERTIFICATE OF SERVICE

Petitioner Patrick Sherard Guillory herein certifies that a true and correct

copy of the foregoing Motion for rehearing with leave to Amend has been mailed

to the beloww named parties by using the McConnel Unit Mailroom procedures and

applying first class postage pre-paid. Harris County District Attorney's

Office-Appellate Division-1201 Franklin, 6th Floor, Houston, TX 77002. And

State Prosecuting Attorney, P.O. Box 12405, Austin, TX 78711. on this l£> day

of ~SO<t^£, ,2015. ~

Petitioner pro se
Patrick Sherard Guillory#1895126

3001 S. Emily Dr.

Beeville, TX 78102 :i? 3Uw 25>:i.S> Ppi .5 L '';.^..-

Abel Acosta, Clerk

Court of Criminal Appeals of Texas

P.O. BOX 12308

Austin, TX 78711

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