                                  NO. 07-04-0519-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                           PANEL A

                                 SEPTEMBER 14, 2005

                         ______________________________

                      JESUS FEDERICO AGUIRRE, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

             FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY;

         NO. A2886-0306; HONORABLE ROBERT W. KINKAID, JR., JUDGE
                     _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Jesus Federico Aguirre, appeals his conviction for the offense of injury

to an elderly individual and sentence of 99 years confinement and a $10,000.00 fine.

Overruling appellant’s issue, we affirm.
                                FACTUAL BACKGROUND


       On March 31, 2003, 71-year-old Natividad Reyes was found in his van in the alley

behind the 200 block of NE 6th Street in Dimmitt, Texas. Reyes had been stabbed 17 times

and had other multiple cuts and wounds. There were no eye witnesses to the assault.

However, on the afternoon of the assault, appellant and several other witnesses were at

212 NE 6th Street in Dimmitt, Texas. Appellant was seen coming from the rear of 212 NE

6th Street folding a knife and with blood on his shirt shortly before Reyes was discovered.

Appellant fled Dimmitt and was apprehended in another state on February 10, 2004.

During the initial investigation at the scene, Reyes identified appellant as the assailant.

Appellant contends that the evidence was factually insufficient to support his conviction


                                STANDARD OF REVIEW


       When an appellant challenges the factual sufficiency of his conviction, the reviewing

court must ultimately determine whether, considering all the evidence in a neutral light, the

jury was rationally justified in finding defendant guilty beyond a reasonable doubt. See

Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which

the evidence may be insufficient. First, when considered by itself, evidence supporting the

verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id.

Second, considering all of the evidence, both for and against the verdict, the contrary

evidence may be so strong that the beyond-a-reasonable-doubt standard could not have

been met. Id. at 484-85.




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                                       ANALYSIS


       As we will affirm the judgment of the trial court, we will review the evidence that

appellant claims demonstrates a factually insufficient basis for the jury verdict. See Sims

v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant’s principal complaint about

the sufficiency of the evidence is that there is a lack of direct evidence that appellant

attacked Reyes. Appellant contends that the emergency room physician’s testimony that

Reyes was unable to talk when the physician saw him casts doubt on Reyes’s purported

declarations. Appellant also questions David Gill’s testimony, that he saw appellant coming

from the rear of the property at 212 NE 6th St. folding a knife and with blood on his shirt,

because Gill gave a statement shortly after the event that did not mention these facts.

Appellant also states that there has never been a knife found that matched the description

of the weapon used in the assault. Appellant contends that these facts and the lack of

direct evidence require reversal for factual insufficiency. We disagree.


       A review of the record in a neutral light reveals that the jury had evidence showing

appellant coming from the direction where Reyes was found. Further, appellant was seen,

by at least one witness, folding a knife while he had blood on his shirt. A second witness

also observed what she thought was blood on appellant’s shirt. During appellant’s flight,

a third witness testified seeing what they believed to be blood on appellant’s shirt.

Witnesses described appellant’s demeanor, immediately after he left the scene, as scared,

in a hurry and panicky. Further, appellant’s flight could reasonably be construed by the

jury to indicate a consciousness of guilt.       Valdez v. State, 629 S.W.2d 317, 321

(Tex.Crim.App. 1981).

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       While we must review the evidence in a neutral light, it is for the jury to evaluate the

evidence, resolve any inconsistencies and determine its weight and value. Johnson v.

State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). We must give appropriate deference to the

fact finder’s determination of the weight to be afforded the evidence in our review of the

factual sufficiency of the evidence. Id. We are not allowed to substitute our judgment for

that of the jury. Zuniga, 144 S.W.3d at 482. After reviewing the evidence supporting and

contrary to the verdict in a neutral light, we cannot say that the verdict of the jury was not

rational. Id. at 484. Appellant’s issue, is therefore, overruled.


       Accordingly, the trial court judgment is affirmed.




                                                  Mackey K. Hancock
                                                      Justice


Do not publish.




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