IN THE 

# COURTOFCRIMINALAPPEALS RECEIVEDIN oftexas ^^^ofcmm/hiApp&lis PATRICKSHERARDGUIILORY § J\JftJg2QJ5 V= § PD-0163-.15 

# THESTATEOFTEXAS § ^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 GUILLORYpro se, humbly.seeking arehearing 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 

### erredby 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 3and 4). This prejudiced Petitioner's right to a jury verdict based onthe 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 

### enteredhis plea of "not guilty" and was triedby a jury. The jury foundhim 

### "guilty as charged in the indietment"(CR;307). Petitionerwas sentenced to life without parole (CR;308). Appeal was timely filed and affirmedby the 14th Court of Appeals (COA#14-13-01037-CR). Petition for DiscretionaryReviewwas filed and refused (PD-0163-15). Petitioner now seeks rehearing on the PDR.

1.SUMMARY OF FACTS 

### Petitioner andTyreonYoung allegedly rodewithRoyVasquez to the local Conoco station. Tyreon riding in the front seat and Petitioner in the back. 

## (RR3;146) RoytestifiedthatTyreonaskedhim (Roy) ifheknewwhere they could "hitalick"whichthestateinterpretedtomean "robsomeone"(RR3;149-50). Roy testified thatpetitionerwas inpossessionof afirearmin the car.(RR3;154) After arrivingat the storePetitionerandTyreon exited thevehicle andwalked 

## to thebackof the storewherepeopleweregathereddrinkingbeer.(RR3;238) Jose Gomez with the Harris County Sheriff's Dept. testified thathe spoke 

## towitnessMartinez inSpanish, thewitnessdescribedwhathappenedas a"fight" in whichhehimself 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 themanwhichhe fought withas having ablack 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 Labwas unable to compare 

### the bullet taken fromAmaro 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 whichwere 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 byunlawfully applying the "Law of Parties" principle in determining whether the evidence
was sufficient as amatter 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 arobbery and that Petitioner was entitled to a lesser included jury charge. Trial court judgement and sentence shouldhave 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 personwho shot 

### the victim. The "Lawof Parties" principle was used to "blend" the culpability andactions of two or more individuals in the effort tomeet the burden of proof. 

### The jurywas 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 juryhadbeen lawfully charged on the law of parties, resulting in error. 

### "Under the lawof parties, the state is able to enlarge thedefendant's responsibility to acts inwhichhe may not be aprinciple 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 ofhis own conduct." Goff v. State,931 S. W.2d 537,544 

### (Tex.Crim.App. 1996). In the instant case the parties theorywas used to establish the underlying offense of robbery, by ametaphorical mis-interpretation of aphrase allegedly spokenby Tyreon Young prior to the incident. Tyreon Young was alleged to have asked Roy Vasquez"where they could 'hit a lick'". The termhit a lickwas 

### interpretedby 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 amanner 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 tocreate a robbery by solicted semantics. The word robbery was applied without question and accepted as proven. Then the "intent" to robwas 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, orduring the commission, or in the immediate flight after the attempt or commission of the offense. Inorder for the murder to qualify as capital murder... the intent to 

### [commit the offense] must be formedprior 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 theperson 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 didnot use a gun to threaten harm or death as required byTexas 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 whowas inpossession 

### 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 ofAppeals. This resulted in a blending and transfer of culpability andaction 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 robanyone. 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^ 

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Patrick SherardGuilloryCERTIFICATE OF SERVICE 

### Petitioner Patrick SherardGuilloryherein certifies that a true and correct copy of the foregoing Motion for rehearing with leave to Amend has been mailed 

### to thebelowwnamedparties by using theMcConnel Unit Mailroomprocedures and 

### applying first class postagepre-paid. Harris CountyDistrictAttorney's Office-Appellate Division-1201 Franklin, 6thFloor, Houston, TX 77002. And 

## StateProsecutingAttorney, P.O. Box12405, Austin, TX78711. on this l£>day 

## of ~SO<t^£, ,2015. ~
Petitioner pro se

### Patrick Sherard Guillory#1895126 3001 S. Emily Dr. Beeville, TX 78102 :i? 3Uw25>: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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