                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-12-00349-CR

                                             Jessie GUTIERREZ,
                                                   Appellant

                                                         v.

                                            The STATE of Texas,
                                                  Appellee

                      From the 437th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2008CR6341
                            Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 1, 2013

AFFIRMED

           A jury found appellant Jessie Gutierrez guilty of murder. The trial court sentenced

Gutierrez to sixteen years confinement and assessed a $10,000.00 fine. On appeal, Gutierrez

complains the evidence adduced at trial was legally insufficient to support his conviction. 1 We

affirm the trial court’s judgment.


1
  Additionally, Gutierrez contends the trial court erred in denying his motion for directed verdict. A challenge to a
trial court’s denial of a motion for directed verdict is reviewed under the same standard used to review a legal
sufficiency challenge. Sony v. State, 307 S.W.3d 348, 353 (Tex. App.—San Antonio 2009, no pet.) (citing Williams
v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)). Thus, by complaining about the denial of his motion for
directed verdict, Gutierrez has not raised any additional issue for our review. See id.
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                                          BACKGROUND

        The evidence shows that in the early morning hours of April 5, 2008, a fight broke out at

the Madison Avenue Pub and quickly escalated to include numerous individuals. Eventually, the

club staff directed the participants outside in an effort to diffuse the situation, but as the club

cleared, the victim in this case, José (“Joe”) Mares, was discovered on the floor with a single stab

wound to the chest.

                                   General Witness Testimony

        There were numerous witnesses called at trial.         Most of the witnesses were pub

employees or patrons who were at the pub on the night Mares was killed. However, there were

also law enforcement witnesses and a witness from the Medical Examiner’s Office.

        There was testimony Mares had been to the pub before. On this particular evening, he

and a friend, Ricardo Mendiola, met a group of friends at the pub, including Alan Garza,

Christine De La Rosa, and Jessica Mata. That same night, Gutierrez and his friends, Brandon

Garza and Jesse Garza, went to the pub where they also met with friends. It was Gutierrez’s first

time at the pub. A witness testified he and his two friends were almost denied entry by one of

the club’s owners after the owner observed Jesse Garza’s facial tattoos. However, they were

admitted when an employee of the club who knew Brandon Garza and Gutierrez vouched for

them.

        Several witnesses testified that around closing time, Mares’s friend Mata was involved in

an altercation with another woman at the club and was consequently escorted outside. Following

this initial incident, a larger fight erupted that included Mares and Gutierrez. Evidence showed

some of the men were drinking, using drugs, or both. Pub employees testified they tried to get

the fight under control by ushering the participants outside. It was then Mares was found on the

floor with a stab wound to the chest.
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       At trial, the State presented several witnesses who testified Gutierrez wore a shirt with

blue and white stripes the night of the murder, although descriptions of the shirt varied

somewhat. Some witnesses also testified the man in the blue and white shirt had a knife. Other

witnesses specifically testified Gutierrez had a knife the night of the murder.

       With regard to the injuries Mares sustained, the State called Dr. Randall Frost, the Bexar

County Medical Examiner. Based on the autopsy, Dr. Frost concluded Mares’s cause of death

was a stab wound to the chest.

                                 Testimony from Pub Personnel

       Andrew Tejeda was the pub owner and general manager for Madison Avenue Pub. He

was at the pub on the night of the murder. At trial, he identified Gutierrez as one of the men he

had initially refused to allow into the pub. These were the same men he later saw in a “squaring

off” with other male pub patrons. He told the jury that before the fight broke out, he took a beer

away from Gutierrez and told him, “Hey, you need to calm down.” Tejeda testified Gutierrez

had been wearing what he believed was a blue and white striped shirt. He told the jury he came

into contact with Gutierrez outside the pub after the fight had been contained, and Gutierrez had

taken off the striped shirt and slung it over his shoulder. Tejeda said Gutierrez then told him one

of his friends had been injured and he “did what he had to do.” Tejeda stated that after speaking

with Gutierrez, he went back inside the pub and saw someone lying on the floor. He then ran

back outside to try to catch Gutierrez or get his license plate number.

       Robert Pulley was the pub employee who had vouched for Gutierrez and his friends that

night, granting them access to the pub. Pulley had known Brandon Garza for years. He testified

he knew Gutierrez, but admitted he had only met him once. Pulley testified Gutierrez was

wearing a polo shirt, and he believed it had white and blue stripes. Pulley stated he helped break

up the initial fight, escorting one woman outside. When he went back inside the pub, a larger
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fight had broken out. Pulley said the pub owner told him to escort Gutierrez and Brandon Garza

outside; Pulley testified the men were “really tensed up” and “angry.”

        Glen Johnson was one of the bouncers working at the pub that night. When two women

began fighting, he stepped in to break up the fight. He testified he saw a man wearing a blue and

white striped polo with a knife in his right hand and a broken pool stick in his left. Johnson

admitted he did not see the man use the knife. Johnson escorted two people outside and when he

returned, he saw Mares walking away and Gutierrez running out of the pub, taking off his shirt.

He stated Gutierrez was yelling angrily at Mares. Johnson identified Gutierrez from a photo

line-up, and again at trial, as the man with the knife. Johnson testified he heard Gutierrez tell

Mares he was going to kill him and minutes later he saw Mares walk away and collapse. He

stated Gutierrez was yelling at Mares, saying either, “I’m going to get you,” or “I’m going to kill

you.”

        Jennifer Galdeano was the pub manager on duty the night of the murder. She estimated

fifty people were in the pub at the time of the fight. She testified that as she was ushering people

out of the pub after the fight, she noticed a man wearing a white and blue polo shirt enter the bar

and knock over a stanchion, which hit her foot. She continued to make her way to the back of

the pub where the fight had taken place.        She then heard the bartender, Veronica Salas,

screaming, “he has a knife.” Galdeano said Salas was referring to the man in the blue and white

shirt. Galdeano also testified she saw the man in the blue and white striped shirt with a knife. In

fact, she had been “poked” by the knife he was holding, causing her to bleed. Later, she noticed

he had taken off the blue and white shirt and put it around his neck.

        Galdeano also knew Mares, who she called a regular of the pub. After the larger brawl

started, she tried to break it up; she then saw Mares collapse on a friend. Shortly thereafter, she



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saw the man with the knife, who had been wearing the blue and white striped shirt, walk by her

toward the main entrance. She told one of the pub employees to “get him, he has a knife.”

       Veronica Salas was the bartender at the pub that night. She confirmed the initial fight

between the two women and the subsequent escalation into a larger brawl. Salas testified she

saw someone wearing a blue and white striped polo shirt reach into his pocket and pull out a

knife. She told the jury she had seen that person earlier with a tattooed man. Immediately after

she saw the man with the knife, she saw Mares walk away from the fight and collapse. She

dragged Mares behind the bar and called 911. She later picked Gutierrez out of a photo line-up,

identifying him as the man with the knife. However, she admitted she was only eighty percent

positive about the identification. Nevertheless, at trial she identified Gutierrez as the man with

the knife who was wearing the blue and white striped polo shirt.

                               Testimony from Mares’s Friends

       Mendiola, the friend who accompanied Mares to the pub that night, testified that before

the fight broke out, he went to the men’s restroom. While in the restroom, three men insulted

him; he felt uneasy. He left the restroom and returned to the pool table near Mares. The three

men exited the restroom and glanced in Mediola’s direction. Mendiola testified Gutierrez and

another man with a Playboy bunny tattoo were two of the three men from the restroom.

Mendiola testified he and his friends and the men from the restroom were staring and “talking

sh-- to each other.” Ultimately, a fight broke out between the two groups after Mata’s altercation

with the other woman. Mendiola testified he saw Gutierrez, who was wearing a blue and white

collared polo shirt, with a knife. Mendiola said he picked up a pool stick and struck the man

with the tattoos on the head. He fought the man with the tattoos until the bouncers broke it up.

Mendiola said he then escorted Mata outside. Mendiola told the jury he saw Gutierrez exit the



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bar shortly before he heard yelling from inside the bar. Mendiola then ran back into the bar and

saw people surrounding Mares, applying pressure to a stab wound.

       Two days after the murder, Mendiola identified Gutierrez from a photo-line up as the

man from the restroom with a knife. Mendiola provided two separate statements to police. In

his first statement, he told police the man with the tattoo was the one with the knife. However, in

his second statement, he identified Gutierrez as the man with the knife, explaining he made a

mistake in his first statement. Mendiola also stated that Gutierrez was wearing a blue and white,

collared striped “Polo, Ralph Lauren shirt.”

       Alan Garza, who was a friend of Mares, was also at the pub that night. When the fighting

started, he saw Mares in a verbal confrontation with two men. Alan Garza testified one of the

men pulled a knife and threatened Mares. The man who pulled the knife was wearing a blue and

white striped polo shirt. Alan Garza testified he did not recall seeing anyone else wearing a

similar shirt at the pub that night. Garza told the jury he saw Mares punch the shorter, bald man

and begin to scuffle with both men. Garza said he intervened and pulled the smaller, bald man

without the knife away from Mares. He then went to go look for his girlfriend. When Garza

returned, he found Mares lying on the floor. He tried to help Mares but was ushered out of the

pub by the bouncer. Once outside, he saw the man he had previously seen with the knife. Alan

Garza subsequently identified Gutierrez from a line up approximately two months after the

incident, but admitted he was not certain.

       Christine De La Rosa, a long-time friend of Mares, was at the pub the night of the

murder. She arrived with Mata shortly after midnight. De La Rosa testified that at one point she

saw men at the pub arguing and “exchanging words.” Her friend Mata had lost her keys and she

was looking for them during the commotion. De La Rosa told the jury a man wearing a dark

blue polo shirt with white stripes was involved in the argument and had his arm stretched out
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holding a knife. She provided police a physical description, but admitted she did not get a good

look at the man’s face.

       Jessica Mata, a friend of Mares, was involved in the initial confrontation and was

escorted from the bar. However, she testified she saw Mares fighting with someone. When

Mata heard people screaming “Joe,” she ran back into the pub and saw Mares lying on the floor.

                              Testimony from Gutierrez’s Friends

       Brenda Oncken worked at a restaurant with Gutierrez. She also spent time with him

socially and testified she knew his friends Brandon Garza and Jesse Garza. She stated she and

her boyfriend met Gutierrez and his friends at the pub on the night of the murder. Oncken told

the jury the group stayed until closing time. She testified she saw Brandon Garza get hit on the

head with a beer bottle. Shortly thereafter, she walked outside with him but did not see Gutierrez

or Jesse Garza outside. The two men joined her outside a few minutes later. She testified

Gutierrez told her the next day at work he stabbed someone the night before but did not think he

killed him. According to Oncken, Gutierrez explained he did it to protect his friend Jesse Garza,

the short, bald man with the Playboy bunny tattoo. She also testified she had seen Gutierrez with

a knife at work.

       Gutierrez called several witnesses at trial, including Brandon Garza and Azalea

Escobedo. Brandon Garza stated he was a victim in the fight at the pub. He claimed he was hit

in the head with two full beer bottles and that Gutierrez helped him make his way outside. He

stated he did not see anyone holding a knife. However, Brandon Garza admitted to police he

was not a good witness because he had a lot to drink that night and was blinded by glass and

blood in his eyes. Brandon Garza also admitted he later went to the hospital and had two CAT

scans which showed he suffered swelling of the brain. On cross-examination, he said he lost

sight of everyone in the fight and did not know if Gutierrez had stabbed anyone.
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       Azalea Escobedo joined two female friends at the pub that night. She did not know

Gutierrez or his friends until they had some interaction that evening when the two groups were

socializing. She described one man in the group as wearing a yellow-like shirt and another in

blue stripes. Escobedo testified she did not see the fight or the stabbing. However, she testified

that outside the pub after the fight, the man in the yellow-like shirt with tattoos on his face had a

knife in his hand and told her she should leave because he thought he had killed someone. She

later admitted she had not seen the man in possession of the knife while they were inside the bar.

She told the jury the man with the knife outside was not Gutierrez.

                                Testimony from Law Enforcement

       San Antonio Police Officer David Lohaus was dispatched to the pub. When he arrived,

Officer Lohaus saw a man, later identified as Mares, lying on the pub floor. When emergency

services arrived, they pronounced Mares dead.          Officer Lohaus and other SAPD officers

investigated the crime. Officer Lohaus testified he identified witnesses for initial questioning

and follow up. Several witnesses were interviewed that morning and in the following two

months.

       San Antonio Police Detective Randal Hines led the subsequent investigation. He testified

he read witness statements and developed a suspect, Gutierrez.           Detective Hines spoke to

Gutierrez and asked to search his home. The detective was looking for a particular item, a shirt

described as a white polo shirt with blue stripes. Detective Hines had learned from witnesses

that a shirt of that description was worn by a man seen with a knife inside the pub when Mares

was murdered. In fact, several witnesses reported the man who stabbed Mares wore a white polo

shirt with blue stripes. Gutierrez refused to consent to the search, but told the detective he was

unable to find a shirt matching that description after conducting a search himself.



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       In his investigation, Detective Hines also spoke with Brandon Garza and Jesse Garza who

had accompanied Gutierrez to the pub. The detective told the jury Jesse Garza had several

visible tattoos, including a Playboy bunny on his neck and “SA” on his cheek.

       San Antonio Police Detective Guillermo Mendoza was also assigned to the case.

Detective Mendoza testified he had shown photo spreads that included Gutierrez to several

witnesses. He stated five witnesses identified Gutierrez as the person with the knife inside the

pub the night Mares was killed. The detective admitted one witness was not positive and none of

the witnesses interviewed had actually seen the stabbing.

                                           ANALYSIS

       In a single point of error, Gutierrez contends the evidence was legally insufficient to

support his conviction. Specifically, he argues that despite the number of witnesses called by the

State, no one testified they saw him stab Mares.

                                      Standard of Review

       An appellate court reviews the legal sufficiency of the evidence in a criminal case under

the standard announced by the Supreme Court in Jackson v. Virginia. Brooks v. State, 323

S.W.3d 893, 895 (Tex .Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d). In applying

this legal sufficiency standard, “the relevant question is whether, after viewing the evidence in

the light most favorable to the verdict, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Orellana v. State, 381 S.W.3d 645, 652 (Tex.

App.—San Antonio 2012, pet. ref’d) (citing Mayberry, 351 S.W.3d at 509); see Jackson, 443

U.S. at 319; Brooks, 323 S.W.3d at 899. Therefore, we must defer to the jury’s weighing of the

evidence, resolution of conflicts in the testimony, and assessment of credibility. Brooks, 323

S.W.3d at 899; Orellana, 381 S.W.3d at 653 (citing Jackson, 443 U.S. at 319) (taking into
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account the trier of fact’s duty “to resolve conflicts in the testimony to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.”).        We must resolve any

inconsistencies in favor of the verdict. Gonzales v. State, 330 S.W.3d 691, 694 (Tex. App.—San

Antonio 2010, no pet.) (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

Thus, in our analysis of a legal sufficiency challenge, we must determine whether the necessary

inferences are reasonable based on the combined force of the evidence, direct and circumstantial,

when viewed in the light most favorable to the verdict. Orellana, 381 S.W.3d at 654 (citing

Mayberry, 351 S.W.3d at 509); see Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)

(holding standard of review is same for both direct and circumstantial cases).

       We must also remain mindful that an appellate court cannot reweigh the evidence or

substitute its judgment for that of the jury. Orellana, 381 S.W.3d at 653 (citing King v. State, 29

S.W.3d 556, 562 (Tex. Crim. App. 2000)). The jury is the exclusive judge of the credibility of

witnesses and the weight to be given to their testimony, and the jury may accept or reject all or

any portion of a witness’s testimony. Orellana, 381 S.W.3d at 653 (citing Lancon v. State, 253

S.W.3d 699, 707 (Tex. Crim. App. 2008)). The jury maintains the power to draw reasonable

inferences from basic facts to ultimate facts; and their sole province is to reconcile any

evidentiary conflicts. Orellana, 381 S.W.3d at 653 (citing Heiselbetz v. State, 906 S.W.2d 500,

504 (Tex. Crim. App. 1995); Welch v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio

1999, no pet.)).

       “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient to establish guilt,” so long as the State

meets its burden of proving each of the required elements of the charged offense beyond a

reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Orellana, 381

S.W.3d at 653. As the Third Court of Appeals explained in Roberson v. State:
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               The State may prove its case by circumstantial evidence if it
               proves all of the elements of the charged offense beyond a
               reasonable doubt. The sufficiency of the evidence is determined
               from the cumulative effect of all the evidence; each fact in
               isolation need not establish the guilt of the accused. It is important
               to remember that all the evidence the jury was permitted, properly
               or improperly, to consider must be taken into account in
               determining the sufficiency of the evidence.

16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d) (internal citations omitted). And, as is

relevant to the case before us, the identity of an alleged perpetrator may be proven by

circumstantial evidence. See Orellana, 381 S.W.3d at 653.

                                           Application

       In the present case, Gutierrez was convicted of murder. Accordingly, the State was

required to present evidence establishing beyond a reasonable doubt that Gutierrez intentionally

or knowingly caused Mares’s death or that he intended to cause Mares serious bodily injury and

then committed an act clearly dangerous to human life that caused his death. See TEX. PENAL

CODE ANN. § 19.02b(1)(2) (West 2011).

       As detailed above, the evidence produced by the State included the following: (1)

testimony from several witnesses who stated Gutierrez wore a blue and white striped shirt at the

pub on the night of the murder; (2) testimony from several witnesses who saw a man wearing a

blue and white striped shirt with a knife around the time of the murder, and that this man was the

only person seen with a knife in the pub at the time of the incident; (3) testimony Gutierrez was

the only person in the pub that night seen wearing such a shirt; (4) testimony from at two least

witnesses who saw Gutierrez remove his shirt, placing it over his shoulder; (5) testimony

Gutierrez fought with Mares, and had a knife during the fight; (6) testimony Gutierrez yelled at

Mares, stating he was going to kill him or get him; (7) testimony Gutierrez, immediately after the

murder, said he had done what he “had to do” to protect his friend; (8) testimony the man in the


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blue and white shirt walked by Mares with a knife in his hand immediately before Mares

collapsed; and (9) testimony from Gutierrez’s co–worker that the day after the murder Gutierrez

admitted stabbing someone the night before.

       Gutierrez contends the evidence was legally insufficient because no rational jury would

have believed beyond a reasonable doubt that he murdered Mares on the basis of that evidence

alone. More specifically, Gutierrez argues no witness testified to actually seeing him stab Mares,

and there was no physical evidence linking him to the murder. Stated differently, Gutierrez

asserts the State, in presenting only circumstantial evidence, failed to establish beyond a

reasonable doubt that if Mares was stabbed by someone, that Gutierrez, and not one of the other

patrons at the pub that evening, stabbed him. However, as noted above, the State may prove its

case by circumstantial evidence so long as it meets its burden of proving each of the required

elements of the charged offense beyond a reasonable doubt.           Hooper, 214 S.W.3d at 13;

Orellana, 381 S.W.3d at 653. Furthermore, the jury maintains the power to draw reasonable

inferences from basic facts to ultimate facts; and its sole province is to reconcile any evidentiary

conflicts. Orellana, 381 S.W.3d at 653.

       The evidence in the record clearly puts Gutierrez at the pub at the time of the murder.

Further, a rational jury could infer from the evidence presented that Gutierrez stabbed Mares.

Numerous witnesses present at the time of the fight identified Gutierrez as the man wearing the

blue and white striped shirt who was holding a knife—the only such person seen with a knife

that night. Gutierrez fought with the victim and was heard threatening to “kill” or “get” the

victim. Gutierrez confessed to stabbing someone the day after the murder. Mares’s cause of

death was a stab wound to the chest.




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       Viewing all of the evidence in the light most favorable to the jury’s verdict, we hold the

State met its burden and the evidence was legally sufficient to support Gutierrez’s conviction for

the murder of Mares. Accordingly, we overrule Gutierrez’s sole point of error.

                                           CONCLUSION

       Based on our review of the arguments, the record, and the applicable law, we overrule

Gutierrez’s point of error and affirm the trial court’s judgment.


                                                   Marialyn Barnard, Justice

Do Not Publish




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