                           NUMBER 13-11-00521-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

BOBBY ORTEGA
A/K/A BOBBY BROWN,                                                       Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 105th District Court
                        of Kleberg County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides

      By one issue, appellant Bobby Ortega a/k/a Bobby Brown (“Ortega”) asserts that

insufficient evidence supports his convictions for one count of murder, see TEX. PENAL

CODE ANN. § 19.02(b) (West 2011) and two counts of aggravated assault.      See id. §

22.02(a) (West 2011). We affirm.
                                       I.      BACKGROUND1

        In the late-night hours of August 7, 2010, RAX Sports Bar in Kingsville turned into

a crime scene after a bar brawl left 20-year-old Matthew “Matt” Garcia dead2 and his

23-year-old brother, Jason Garcia, and 30-year-old Ernesto “Ernie” Garza bleeding

profusely from stab wounds.           A Kleberg County grand jury indicted Ortega for Matt’s

murder and the aggravated assaults of Jason and Ernie. The State presented the

following evidence at Ortega’s jury trial.

        On August 7, 2010, Ortega and his girlfriend Chelsea Muñiz visited RAX Sports

Bar after attending a dance earlier in the evening with another couple, Danny Gonzales

and Sophia Campos.             Once at RAX, Ortega and the others entered a separate

nightclub located inside RAX known as Club, Inc.                Inside Club, Inc., witnesses testified

that Ortega and Matt approached each other and exchanged words, but later shook

hands and separated.

        After that exchange, Sophia and Danny approached Matt, who was standing with

his brothers Jason and Jaime Garcia. Several witnesses recalled that Sophia cussed

and yelled at Danny to, as Jason testified, “go after” Matt for a previous altercation that

the Garcia brothers had with Sophia’s cousin.                 Club, Inc. bartender Ozzie Mejorado

testified that she then witnessed Sophia make a move toward Matt with Danny and

Bobby in tow, which then erupted into the brawl. Club, Inc.’s disc jockey Juan Salazar

corroborated how the fight unfolded as he saw it atop the dance floor from his deejay

        1
          As this is a memorandum opinion and because all issues of law presented by this case are well
settled and the parties are familiar with the facts, we will not recite the law and the facts in this opinion
except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R.
APP. P. 47.4.
        2
        Nueces County medical examiner Ray Fernandez, M.D. autopsied Matthew Garcia’s body. Dr.
Fernandez testified that 20 sharp-force injuries from stab wounds across Matt’s body caused his death.

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booth.    Salazar likened the fight to an attack by “a pack of wolves.”

         Once the fight dissipated and the crowd disbursed, Jaime located and drove his

bleeding brothers to Christus Spohn hospital in Kingsville.     Jason testified that on the

car ride to the hospital, Matt said that he “got stabbed” and was fading in and out of

consciousness.      Jason also testified that at that time, his body was aching, and he felt

like he could not breathe.     At the hospital, Matt died and Jason was treated for his

wounds.       Ernie, a bystander who intervened in the brawl to help break it up, stayed

behind at RAX, spoke to police and paramedics, and was eventually hospitalized for six

stab wounds to the back, neck, and ear.

         Jurors found Ortega guilty for each count alleged in the indictment and assessed

punishment at life imprisonment for Matt’s murder, and twenty years’ imprisonment for

each aggravated assault count.            The trial court ordered that the sentences run

concurrently.     This appeal ensued.

                                    II.      DISCUSSION

         Ortega’s sole issue asserts that the evidence is insufficient to sustain any of his

convictions.

         A.     Standard of Review

         When reviewing a defendant’s sufficiency challenge, we view the evidence in the

light most favorable to the verdict to determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.

State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319

(1979). The jury is the sole judge of the credibility of witnesses and the weight to be


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given to their testimonies, and the reviewing court must not usurp this role by substituting

its own judgment for that of the jury.   Montgomery, 369 S.W.3d at 192. Thus, our duty

is “simply to ensure that the evidence presented supports the jury's verdict and that the

State has presented a legally sufficient case of the offense charged.”            Id. (internal

citations omitted). When faced with a record supporting contradicting inferences, we

must presume that the jury resolved such conflicts in favor of the verdict, even if not

explicitly stated in the record.   Id. (citing Brooks, 323 S.W.3d at 899 n.13).

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.    Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).       Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.   Id.

         B.    Count One—Murder

         By its first count, the State alleged that Ortega murdered Matt.            Under a

hypothetically correct jury charge authorized by the indictment in this case, Ortega is

guilty of murder if he:   (1) with the intent to cause serious bodily injury, (2) committed an

act clearly dangerous to human life that caused Matt’s death; or (1) committed or

attempted to commit aggravated assault, and (2) in the course of and in furtherance of

the commission or attempt to commit said aggravated assault, (3) committed or

attempted to commit an act clearly dangerous to human life that caused Matt’s death.

See TEX. PENAL CODE ANN. § 19.02.


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        Under a hypothetically correct jury charge, Ortega committed aggravated assault

if he (1) intentionally, knowingly, or recklessly caused bodily injury to Matt, and either, (a)

caused serious bodily injury to Matt; or (b) used or exhibited a deadly weapon, to wit: a

knife or sharp object during the commission of the assault.      See id. §§ 22.01–.02.

        Ortega argues that no evidence connects Ortega to the commission of Matt’s

murder.     We disagree.       Nueces County Medical Examiner, Dr. Ray Fernandez,

testified that Matt’s autopsy revealed twenty sharp-force injuries caused by stab wounds

which resulted in his death.    All of the witnesses placed Ortega and Matt in the middle of

the fight at Club, Inc. on August 7, 2010.   Matt’s sister, Byanca Garcia, testified that she

saw Matt and Ortega punching each other that night.       Byanca also testified that she saw

Bobby make “stabbing” motions toward her brother’s body and gestured the motion for

the jury.   Byanca admitted, however, that she never saw a knife, but did see Ortega

“stabbing [her] brother.” Club, Inc. deejay Salazar testified that he witnessed Ortega

also make “stabbing” motions toward Matt, but did not see a knife or blood.             Jason

testified that he saw Ortega fighting with Matt, but it “didn’t look like he was punching

him.”   Instead, Jason stated that Ortega made a non-punching motion toward his

brother and demonstrated the motion for the jury.

        Leonessia Mejorado, another Club, Inc. patron, testified at trial.         Leonessia

stated that she remembered a male, who wore a red and white striped shirt, make

“poking” gestures rather than punching gestures toward Matt, but never saw a knife in

his hands. Witness Sonia Vela told the jury that she saw a “little guy” at Club, Inc. who

wore a red and white striped polo-style shirt, had his arm wrapped around Matt’s body,

and thrust his hand toward Matt.     Sonia replicated the motion for the jury.    Other Club,


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Inc. patrons Nori Martinez and Kayla Peña also testified.         Nori and Kayla identified

Ortega through a police photo lineup as the individual who made stabbing motions

toward Matt during the fight.     Nori testified that she saw Ortega “all bloody,” wearing a

striped shirt, but then saw him wearing a white t-shirt.     Kayla stated that she saw Matt

on the floor, attempting to get up, and saw Ortega make three thrusts toward him.

         Ortega’s girlfriend, Chelsea, and Ortega’s sister, Krystyne Gonzales, each

testified that Ortega wore a red, black, and white striped collared shirt to Club, Inc. that

night.    Chelsea testified that Ortega sliced his finger during the fight that night and told

her it was from a broken bottle, but he did not seek medical treatment.      According to Dr.

Fernandez, it is common for people who stab others to cut themselves after the object

becomes soaked with blood and slippery to the touch.

         Chelsea also told the jury that Ortega sometimes carried a pocket knife, but he did

not have a knife with him that night. The record also shows that Ortega, Chelsea, and

Krystyne immediately left the scene after the brawl to go home, which is indicative of a

“consciousness of guilt.”    See Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus

Christi 1993, writ ref’d) (noting that “any conduct on the part of a person accused of a

crime subsequent to its commission, which indicates a ‘consciousness of guilt,’ may be

received as a circumstance tending to prove that he committed the act with which he is

charged”).

         Kingsville Police Detective Velma Salinas interviewed Ortega two days after

Matt’s death.     Detective Salinas testified that Ortega told her that a “big guy” in a

Yankees cap came at him with a knife that night, he put out his hand, and that is what

caused the cut on his hand. Ortega also denied to police that he possessed a knife that


                                               6
night or that he even owned a knife.        The State admitted a recorded jail telephone

conversation made after Ortega’s arrest in which he told an unknown caller “I’m glad I

got that shit out of there before them [sic] fools got there.”

       After viewing this evidence in the light most favorable to the verdict, we conclude

that any rational trier of fact could have found that Ortega committed the essential

elements of Matt’s murder beyond a reasonable doubt.             See TEX. PENAL CODE ANN. §§

19.02; 22.01–.02; see generally Montgomery, 369 S.W.3d at 192.

       C. Counts Two and Three—Aggravated Assault

       By its second and third counts of the indictment, the State alleged that Ortega

committed an aggravated assault against Jason and Ernie.

       Under a hypothetically correct jury charge, Ortega is guilty of aggravated assault if

he (1) intentionally, knowingly, or recklessly caused bodily injury to Jason and Ernie and

(a) caused serious bodily injury to Jason and Ernie; or (b) used or exhibited a deadly

weapon, to wit: a knife or sharp object during the commission of the assault.       See TEX.

PENAL CODE ANN. §§ 22.01–.02.

       Ortega argues that no evidence connects him to either one of the aggravated

assaults. We, again, disagree.      Jason testified that when the fight initially commenced,

he focused his attention on Danny and fought with him.       Jason then stated that while he

fought Danny, he “felt a sharp pain” on his back and saw somebody run around him in a

white t-shirt, “like [Ortega] had on” and attacked Ernie against the wall.      Nori testified

that she saw Ortega in a striped shirt and then a white t-shirt that night.    Ozzie testified

that she also witnessed Jason and Ortega fighting that night.




                                              7
        Ernie testified that he intervened in the brawl in order to help break up the fight.

On cross-examination, Ernie testified that he was not “aware” if Ortega stabbed him

because he would have seen it. Ernie indicated that during the melee he ended up on

top of Ortega and felt hits to his back.         RAX Sports Bar owner Rogelio “Rocky”

Dominguez also testified about his observations that night and the role he played in

trying to break up the fight.   According to Rocky, he approached the brawl and grabbed

a “small guy”—later identified as Ortega—for a couple of seconds before Ortega broke

away from him and attacked Ernie from behind.       Rocky gestured for the jury how Ortega

broke away from him and later attacked Ernie.         Rocky testified that Ernie grabbed

Ortega, and they both fell into a pile of people along with another “small guy.” Once in

the pile, Rocky testified that Sophia began to hit Ernie on the back with her shoe telling

Ernie to “get off of [her] husband.”

        Dr. Fernandez testified that he reviewed Jason and Ernie’s medical records as

well.   According to Dr. Fernandez, Jason and Ernie’s injuries were of the type that

required hospitalization and carried the risk of death because the stab wounds were

located in the chest area.

        After viewing this evidence coupled with the evidence outlined in Part II-B, in the

light most favorable to the verdict, we conclude that any rational trier of fact could have

found that Ortega committed the essential elements of aggravated assault against Jason

and Ernie beyond a reasonable doubt.             See TEX. PENAL CODE ANN. §§ 19.02;

22.01–.02; see generally Montgomery, 369 S.W.3d at 192.

        Ortega’s issue is overruled.




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                                  III.   CONCLUSION

       We affirm the trial court’s judgment.


                                                   __________________________
                                                   GINA M. BENAVIDES,
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
25th day of April, 2013.




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