                          NUMBER 13-10-00534-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

DAVID FRANCISCO BARRON,                                                Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 377th District Court
                        of Victoria County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      A jury found appellant, David Francisco Barron, guilty of aggravated robbery, a

first-degree felony, with an affirmative deadly-weapon finding, see TEX. PENAL CODE

ANN. § 29.03(a)(2), (b) (West 2003), and capital murder, a capital felony, with an

affirmative deadly-weapon finding. See id. § 19.03(a)(2), (b) (West Supp. 2010). The

jury sentenced him to life imprisonment for the aggravated robbery, see id. § 12.32
(West 2003), and the trial court sentenced him to life imprisonment without parole for

the capital murder, see id. § 12.31(a)(2) (West Supp. 2010), with the sentences ordered

to run concurrently. By a single issue, appellant contends the evidence was insufficient

to support his conviction for capital murder.1 We affirm.

                                            I.      BACKGROUND

        Appellant and his co-defendant, Marcus Pena, were tried together for the murder

of Jason Garcia. The jury found both guilty of aggravated robbery and capital murder.

In the early morning hours of August 23, 2009, Garcia called appellant and asked for a

ride home from La Caliente, a nightclub in Victoria, Texas. Appellant was accompanied

by Marcus, Antonio Castillo, and Rolando Pena.2 The four men picked Garcia up.

Earlier in the evening, appellant and Marcus had been in a fight with Andy Higdon, an

acquaintance of Garcia‘s. Because Garcia had not joined in the earlier fight and did not

provide Higdon‘s phone number or address to appellant and the others, they beat him

repeatedly and left him in the parking lot of Magic Industries, a business located in

Victoria. A summary of relevant trial testimony is presented below.

A. State’s Evidence

1. Leisha Wood

        Leisha Wood, M.D., a medical examiner with the Travis County Medical

Examiner‘s Office, testified that she conducted an autopsy on Garcia‘s body and

prepared a report.         Dr. Wood testified that Garcia had a broken nose, significant


        1
          Appellant‘s brief states incorrectly that appellant was convicted of ―capital murder and engaging
in criminal activity (underlying offense aggravated robbery)‖ and asserts that ―in both charges, capital
murder and engaging in organized criminal activity, the State has failed to prove its case . . . .‖ The brief
does not address appellant‘s conviction for aggravated robbery. Accordingly, we construe appellant‘s
brief as challenging only the sufficiency of the evidence supporting his conviction for capital murder.
        2
            Testimony at trial showed that Marcus Pena and Rolando Pena are cousins.

                                                     2
bruising, and numerous blunt-force injuries. Garcia had injuries on all sides of his face

and scalp and swelling of his brain. His head was distended, an injury consistent with

being kicked in the face. Garcia also had numerous ―defensive-type injuries‖ on his

arms, which were consistent with an attempt to protect himself.

        On cross-examination by appellant‘s counsel, Dr. Wood stated that Garcia‘s

injuries, by themselves, may not have caused his death. She clarified, however, that

she thought that ―the injuries did cause his death or at least contributed to his death.‖

She further testified, ―[h]is injuries caused his death.   Maybe not the direct injuries

themselves, without the heart condition or without the cocaine, maybe he could have

survived—maybe he could have, but the temporal relationship between injury and his

death, you can‘t exclude the injuries from his death.‖ She stated that she could not ―say

for certain‖ whether Garcia would be alive if he had not had cocaine and marihuana in

his system.

2. Eline Moya

        Eline Moya, a sergeant with the Victoria Police Department, testified that she was

the first officer to report to the scene where Garcia‘s body was found, around 2:15 a.m.

Garcia was found face-down in the parking lot at Magic Industries; when Sergeant Moya

checked, Garcia did not have a pulse. When EMS personnel arrived and rolled Garcia

over, Sergeant Moya observed that Garcia had blood on his face and coming out of his

ears.

3. Andy James Higdon

        Andy Higdon testified that he had known Garcia for about a year or two and that

they were ―cool.‖ He saw Garcia at the Club Westerner on the night Garcia was killed.



                                            3
Garcia introduced Higdon to ―a dude‖ as ―my home guy, ‗Lunatic,‘‖ (Higdon‘s nickname).

The ―dude‖ responded to Higdon, ―[y]ou‘re the one that has a problem with our home

boy, Rico?‖ Then, Higdon ―got hit.‖ Security guards ushered Higdon and the others

outside, where Higdon was again assaulted. Garcia did not participate in the fight.

When Higdon asked Garcia why he had been assaulted, Garcia said he did not know.

When the men who assaulted Higdon left, they shouted that they were members of the

Mexican Mafia. Higdon testified that he does not belong to a gang.

4. Lisa Pena

      Lisa Pena is married to Rolando and knows appellant, Marcus, and Castillo. Lisa

and Rolando were at Club Westerner the night of the incident celebrating a quinceanera

for Lisa‘s daughter. After the celebration ended about midnight, Lisa and Rolando went

to the home of Lisa‘s parents for an after-party. Appellant, Marcus, and Castillo were

also there. Around 2:00 a.m., Lisa‘s father asked them to leave because they were

shouting in the yard.    Appellant, Rolando, Marcus, and Castillo left in Lisa and

Rolando‘s white Cadillac. At the same time, Eina Fernandez left in a separate car.

Around 5:00 a.m., Eina picked Lisa up at her parents‘ house and drove her to Eina‘s

house. Appellant, Marcus, and Rolando were there. Lisa went to Eina‘s to pick up

Rolando and drive her car back to her parents‘ house; Rolando was too intoxicated to

drive. Lisa testified that Rolando said he ―got into some shit.‖ Lisa stated that she

thinks Rolando is a member of the Mexican Mafia. The morning after the quinceanera,

Rolando, appellant, and Marcus went to Corpus Christi in Lisa‘s vehicle. Lisa contacted

Rolando‘s aunt, who lived in Corpus Christi, and made arrangements for the men to

stay at her house in Corpus Christi. Eina and Stephanie Rendon were at Lisa‘s house



                                          4
when the men left.

5. Dustin Ferguson

      Dustin Ferguson, a licensed paramedic, testified that he responded to the 911

call regarding Garcia‘s body. Garcia was found lying face down in the parking lot.

Garcia had no pulse and did not respond to emergency measures.

6. Stephanie Rendon

      Stephanie Rendon testified that at the time of the events at issue, she was

appellant‘s girlfriend. In response to the State‘s questions, Rendon stated that she is

under indictment for a felony offense and has an agreement with the State that in

exchange for her truthful testimony, the charges against her could be dismissed.

Rendon testified that through appellant, she knows Rolando, Marcus, and Castillo. She

also knows Eina, Marcus‘s then-girlfriend, and Lisa. Rendon stated that she went to the

quinceanera at Club Westerner with appellant.      Marcus and Eina were with them.

When the club closed around midnight, she and appellant, along with Marcus and Eina,

Eina‘s daughter and her friend, and Garcia left together and went to Eina‘s house to

drop off Eina‘s daughter and her friend. Then, Rendon and appellant, Marcus and Eina,

and Garcia went to a club, La Caliente.

      At La Caliente, Rendon saw Garcia introduce someone she knew by his

nickname—―Lunatic‖—to appellant and Marcus; a fight broke out between appellant,

Marcus, and ―Lunatic.‖ She did not go outside right away and did not see fighting

outside. When she went outside, she saw a guy shout ―Sureno,‖ which according to

Rendon, is Spanish for ―south.‖    Rendon and Eina went to the car and picked up

appellant and Marcus down the road. Garcia stayed at La Caliente.



                                          5
       Rendon said the four then went to the home of Lisa Pena‘s parents. Appellant

and Marcus got out and talked to Rolando. Castillo was with Rolando. Appellant,

Marcus, Rolando, and Castillo got into Rolando‘s vehicle, a white Cadillac, and left.

Rendon and Eina followed the men in Eina‘s vehicle to another club, the Hideaway.

Garcia got into Rolando‘s car at the Hideaway. Appellant told Rendon not to follow

them, but she did. Rolando‘s vehicle stopped at Silver City, 3 and appellant, Marcus,

Rolando, Castillo, and Garcia got out. Rendon saw Rolando assault Castillo. Appellant

was driving; Rolando was in the front passenger seat. Marcus, Castillo, and Garcia

were in the back seat with Garcia in the middle. Although somewhat unclear as to the

sequence of events, Rendon said they went to the Hideaway first, then to Silver City.

After appellant told Rendon to go home, she and Eina went to Eina‘s house.

       Forty-five minutes to an hour later, appellant, Marcus, Rolando, and Castillo

returned to Eina‘s house. Rendon saw that appellant and Marcus had blood on their

hands and shirts. Appellant, Marcus, and Rolando changed clothes. Appellant asked

Rendon and Eina to drive to Magic Industries, where they had left Garcia, and check on

him. Rendon said she thought something had happened to Garcia, but did not ask for

an explanation. Rendon and Eina drove to Magic Industries. When they did not see

Garcia, they called appellant, who told them to pick him up. They drove to Eina‘s,

picked appellant up, and drove back to Magic Industries. Appellant pointed out where

Garcia‘s body was. They then drove back to Eina‘s, dropped off appellant, and drove

back to Magic Industries.

       Rendon said that as she stood over Garcia‘s body, there was a ―pile of blood


       3
        Although not otherwise described in the record, Silver City is apparently a nearby neighborhood
or community.

                                                  6
underneath him‖ and she was afraid to touch his body. She called 911, using Eina‘s

phone. She believed that Garcia was dead. Rendon told the 911 dispatcher that they

were driving by and saw a body and did not know if the victim was alive. They did not

wait for the ambulance, and went back to Eina‘s house.

      While they were gone, Castillo had left. Appellant, Marcus, and Rolando asked

Rendon and Eina what they had seen. Rendon and Eina said that Garcia was lying

face down in a pool of blood and was not breathing.         Rendon remembered being

interviewed by the police and recalled that the men told her they had beaten Garcia up

and may have hit him too hard. Rendon said she did not tell the officers the complete

truth before because she was scared. Rendon said that she saw some of Garcia‘s

property with appellant, Marcus, and Rolando; she saw Garcia‘s hat, telephone, and

wallet. The men burned Garcia‘s belongings in a barbeque pit at Eina‘s sometime

between 4:00 and 5:00 a.m. Rolando went home when Lisa came to pick him up.

      The next day, Rendon, appellant, Marcus, and Eina went to Lisa‘s house.

Appellant, Marcus, and Rolando left town in Rolando‘s white Cadillac. Appellant later

called Rendon and asked if the police had contacted her.

7. Ileina Fernandez

      Ileina ―Eina‖ Fernandez is married to Marcus and at the time of trial was filing for

divorce. Prior to Garcia‘s murder, she had known appellant for a few weeks. Eina

testified that Marcus and appellant are members of the Mexican Mafia. On the night of

Garcia‘s murder, Eina attended the quinceanera at the Club Westerner with Marcus,

appellant, Rendon, and Eina‘s daughter. They left the Club Westerner about the time it

closed. When they left, Garcia was with them. They dropped Eina‘s daughter off at



                                           7
home and went to La Caliente around 1:00 a.m.

       At La Caliente, appellant and Marcus got into a confrontation with someone Eina

did not know. Marcus and appellant were ―yelling out gang signs.‖ According to Eina,

the man that appellant and Marcus fought was yelling, ―Sureno.‖ Eina and Rendon

went to the car and picked up appellant and Marcus. They then drove to Lisa‘s parents‘

house because appellant and Marcus wanted to talk to Rolando. When they arrived at

Lisa‘s parents house, appellant and Marcus, who were ―mad and upset‖ at the person

they had confronted at the club, got out; Eina and Rendon stayed in the car. Lisa‘s

parents asked them to leave. Eina and Rendon left; appellant, Marcus, and Rolando

left in Rolando‘s white Cadillac.

       Rendon and Eina followed Rolando‘s vehicle to a house in Silver City. Eina

remembers seeing Castillo in Silver City but does not remember how he got there. In

Silver City, there was a confrontation between Marcus and Castillo. Rolando, appellant,

and Marcus were arguing with Castillo. After they left Silver City, the two vehicles went

to the Hideaway to pick up Garcia. By this time, it was 2:00 a.m. and the Hideaway was

closed.   Garcia got into the back seat of Rolando‘s vehicle; appellant was driving.

When Rolando‘s vehicle got close to Eina‘s house, it stopped and the men told Eina and

Rendon to go home. Rendon was angry that the men were leaving them.

       About thirty minutes later, appellant, Marcos, Rolando, and Castillo came back;

Garcia was not with them. Appellant and Marcus had blood on their clothing. Eina saw

that Rolando had a wallet. The wallet had $20 in it. Rendon put the bloody clothing in

the washing machine. Marcus and appellant said that they had beaten Garcia with their

fists. Marcus asked Eina to check on Garcia and take him to the hospital. Rendon and



                                           8
Eina went to the Magic Industries parking lot to look for Garcia‘s body but did not see

anything. They drove back to the house and reported that they could not find Garcia.

Appellant got into the car and at the Magic Industries site, pointed to the area where

Garcia‘s body should be.      Instead of checking on Garcia at that time, appellant

instructed the women to take him back to Eina‘s house.         After doing so, appellant

instructed Eina and Rendon to go back and take Garcia to a hospital. When Eina and

Rendon returned, Garcia was lying face down with a lot of blood under his face. Garcia

did not respond, and Eina thought he was not breathing.

      Eina told Rendon to call 911. After calling 911, they left. The women saw the

ambulance arrive as they were leaving. When they returned to the house, they told the

men they had called 911. The men told them to ―not say nothing.‖ Eina saw the men

building a fire in the barbeque pit but did not inquire as to what they were doing because

she did not want to know.

      Eina said that when she was questioned by the police, she said she had received

an anonymous call about Garcia‘s body. She lied because she was afraid of Marcus

and his friends. Eina did not permit the police to search her house because she was

protecting Marcus.

      The next day, appellant, Marcus, and Castillo asked her to take them to

Rolando‘s house. Eina said that appellant and Marcus were going to leave town, along

with Rolando.    Marcus said they were leaving town because ―of what they did.‖

Appellant, Marcus, and Rolando left in Rolando‘s white Cadillac. Marcus called her

several times and asked if she had talked to law enforcement. At some point, Eina

permitted the police to search her house and garage. The police found a burned cell



                                            9
phone in the barbeque pit and found shoes in the washing machine.

       On cross-examination, Eina said that Marcus, appellant, and Rolando had

suggested that she check on Garcia and take him to the hospital.

8. Alice Avalos

       Alice Avalos testified that she is Rolando‘s aunt.            In August 2009, Rolando,

appellant, and Marcus drove to her house in Corpus Christi in Rolando‘s white Cadillac.

Avalos testified that after a few days, she knew something was wrong. Marcus was

nervous. Marcus and Rolando offered to sell her a watch for twenty dollars and Marcus

tried to sell her a diamond necklace for twenty dollars. During the time the men were

there, Avalos went to the grocery store with her friend, Connie Cuellar. Cuellar bought

five bottles of hydrogen peroxide for Rolando. At some point, the men were going to

leave in a van with appellant‘s brother.

9. Rolando Pena Jr.4

       Rolando testified that he is associated with the Mexican Mafia.                   Appellant,

Castillo, and Marcus were also associated with the Mexican Mafia. Rolando stated that

appellant was previously a member of another street gang, the North Side Klan.

Rolando testified that appellant and Rendon, Marcus and Eina, and Castillo attended

the quinceanera at the Club Westerner.             Garcia, whom Rolando had known since

middle school, was also at the quinceanera.

       After the party ended, Rolando and Lisa went to the home of Lisa‘s parents,

where an after-party was planned. Castillo and his wife, Jessica, also came to the

house. Sometime later, appellant, Rendon, Marcus, and Eina arrived at the house.

       4
          The record shows that Rolando Pena had a pending indictment concerning the events leading
to Garcia‘s death. Rolando had a plea agreement with the State to plead guilty to Garcia‘s murder and
provide truthful testimony in this case in exchange for a sentence recommendation of forty years.

                                                 10
Appellant and Marcus got out and told Rolando that they had gotten into a fight at a club

because Garcia had introduced them to Andy (Higdon) and Marcus did not like Andy

and started a fight. Rolando said that appellant and Marcus were still ―hyped up‖ and

wanted to fight Andy and those he hung around with, known as the South Side Locos.

      Appellant, Marcus, Castillo, and Rolando left in Rolando‘s vehicle. The men

drove to Silver City where they attempted to obtain some guns from someone known as

―Juanito.‖ Rolando said they intended to look for members of the South Side Locos.

Rolando explained that they felt that the South Side Locos had ―disrespected‖ appellant

and Marcus by fighting at the club. While there, an argument broke out, and appellant,

Marcus, and Rolando hit Castillo. The four men then left the Silver City area. Rolando

got a phone call from Garcia, who wanted a ride home from La Caliente. The men told

him to meet them at the Hideaway, a nearby club. The men noticed that Eina was

following them in her vehicle; appellant got out and told them to go home.

      At the Hideaway, they picked Garcia up and he got in the middle of the back

seat. They asked Garcia what had happened to ―Lunatic‖ (Higdon) after the earlier

fight. Garcia said that ―Lunatic‖ had been hit by a bottle and was going to the hospital.

They asked Garcia for Higdon‘s address and phone number; when Garcia said he did

not know, they assumed he was lying to protect Higdon. Marcus and Castillo, who were

in the back seat with Garcia, began to punch Garcia. Garcia said he was not lying and

asked Rolando if he was going to ―let this go down.‖         Garcia was being beaten

repeatedly by Marcus and Castillo. Garcia tried unsuccessfully to get out of the vehicle.

Rolando told appellant to pull over. When Rolando got out, he intended to hit Garcia,

but when he saw Garcia was covered in blood, he ―just yanked him out of there, so we



                                           11
could go.‖ Garcia fell out of the car on all fours. The other three men got out. Castillo

was near Garcia‘s feet; appellant and Marcus were near Garcia‘s head. Appellant and

Marcus started hitting and punching Garcia; Rolando stood by. Rolando said he had

intended to hit Garcia when they stopped the car, but when he saw all the blood, he

changed his mind. Castillo also stood by while appellant and Marcus hit and kicked

Garcia in the face and upper body area with their hands and feet. Garcia was not

talking, but was moaning from the pain. Rolando did not see anyone take Garcia‘s

necklace, watch, or wallet. The beating took place in the parking lot of Magic Industries.

Marcus said that he tried to get Garcia‘s boots off, but could not. Garcia‘s body was at

the rear of the vehicle when they got back in. Appellant said he was going to run over

Garcia‘s body, but Rolando told him not to because he would get ―stuff under the car‖

and they would not be able to clean it up.        Rolando said that Garcia‘s condition

appeared to be ―major‖ and that he appeared to need medical attention. The men drove

to Eina‘s house. Rolando said he talked about calling 911 but did not do so because he

did not want to be caught.

        When they got to Eina‘s house, they washed the blood off, and appellant and

Marcus changed clothes. Rolando stated there was a lot of blood in the car. Appellant

and Marcus told Eina and Rendon to go check on Garcia.            They came back and

appellant went with them to show them the location of the body. One of the women

called 911. When asked if running over a person with a vehicle posed a danger of

killing that person, Rolando said, ―[y]es.‖ When Rolando last saw Garcia, he believed

Garcia was ―pretty bad hurt‖ and ―needed some help fast‖ or he ―wasn‘t going to make

it.‖   He clarified that Garcia‘s condition ―looked like he would die if he didn‘t get



                                           12
immediate help.‖ Rolando stated that appellant later bragged about his hands being

deadly weapons.

       When Rendon and Eina returned to the house, they ate some tacos. Castillo had

left. Rolando stated that from the time they left Garcia in the parking lot to the time that

Rendon and Eina returned to the house, thirty minutes or more had elapsed. While they

were eating, no one talked about Garcia. While the women were looking for Garcia‘s

body, Rolando, appellant, and Marcus wiped the blood out of the inside of the car with

wet towels.    While at Eina‘s house, Marcus showed them Garcia‘s wallet, which

contained about twenty dollars. At some point, appellant told him that they had burned

Garcia‘s cell phone, wallet, and cap in a barbeque pit at Eina‘s house. Castillo‘s wife

picked him up at Eina‘s house. Rolando‘s wife, Lisa, picked Rolando up. When he got

home, Rolando cleaned the car again with a towel. When Lisa asked him what was

going on, he told her it was none of her business.

       The next day, Rolando received a phone call from ―J.P.‖, one of Garcia‘s cousins,

inquiring about Garcia. Rolando told him he did not know what happened to Garcia.

The morning after Garcia‘s death, appellant, Marcus, and Rolando met at Rolando‘s

house so they could all go to Corpus Christi to Rolando‘s aunt‘s house. When they

arrived at the house in Corpus Christi, they parked the car in the back to hide it. The

men were in Corpus Christi for six days before they were picked up there. While in

Corpus Christi, they cleaned the car several more times with water and towels and

hydrogen peroxide. They also removed the seat belts and floor mats from the vehicle

and threw them away. They believed that they had completely cleaned the vehicle.

While in Corpus Christi, Marcus told them he had taken Garcia‘s jewelry and had tried



                                            13
to take his boots. They tried to sell the jewelry to Rolando‘s aunt, but she did not want

it. On the day they were arrested in Corpus Christi, appellant‘s brother had come to

pick him up in a mini-van. The three men got into the mini-van because they were

trying to get to Mexico through Laredo. As they were traveling out of Corpus Christi,

they were surrounded by law enforcement officers and arrested.

       Rolando stated that appellant was the last one to kick Garcia and that Garcia

gave ―an ugly moan.‖ According to Rolando, ―that‘s what hurt him right there real bad.‖

Rolando said the blow sounded different from the other blows. Rolando testified that

appellant said that if Garcia was dead, he would ―take the rap‖ for it.

       On cross-examination, appellant‘s counsel attempted to impeach Rolando‘s

credibility by pointing out discrepancies between Rolando‘s earlier statement to the

police and his trial testimony.      Rolando testified that he did not see appellant take

anything from Garcia or order anyone else to take Garcia‘s property. Rolando stated

that he is pleading guilty to murder even though he did not intentionally or knowingly kill

Garcia. Rolando testified that there was not a formal plan to kill Garcia. Rolando stated

that Castillo and Marcus, who were in the back seat with Garcia, initiated the

―punishment‖ for Garcia‘s failure to provide information about Higdon. Rolando stated

that they did not plan to kidnap, rob, or murder Garcia.

       On re-direct examination, Rolando agreed that he intended to plead guilty to

murdering Garcia because he agreed that beating and kicking a man on all fours was

intentionally and knowingly killing him.

10. Antonio Castillo Jr.5


       5
         Castillo testified that he has an agreement with the State to plead guilty to engaging in
organized criminal activity or capital murder in exchange for a sentencing recommendation of twenty

                                                14
         Antonio Castillo‘s testimony regarding the events did not differ significantly from

Rolando‘s testimony. Castillo testified that he ―made a stupid decision to go along with

these guys.‖ Castillo said that Garcia was beaten up in the back seat because he did

not participate in the fight at La Caliente. He said Marcus was yelling, ―‗He didn‘t jump

in, he didn‘t jump in‘—You know, ‗Let‘s fuck this dude up.‘‖ Castillo said he ―went along

with them‖ because if he had not, he would have been next.

         Castillo testified that after they stopped the car at Magic Industries and pulled

Garcia out of the car, he hit Garcia a few times in the back and kicked him. Marcus was

kicking and hitting Garcia in the head with his hands and feet. Appellant was hitting

Garcia in the head and face. Rolando was hitting Garcia in the back with his hands and

feet. He stated that appellant and Marcus kicked and hit Garcia the most in the head

and face. When they left Garcia, he was not talking or moving. According to Castillo,

appellant and Marcus were ―putting their whole body into it‖ ―with full force, kicks and

punches.‖ At some point, Castillo and Rolando stopped hitting and punching Garcia,

but appellant and Marcus did not stop.

         Castillo was asked by the prosecutor, ―If you were kicking someone in the head,

as hard as you could, they‘re already senseless or semi-conscious or non-responsive,

would it be your intent to harm or would you be kicking to kill?‖ Castillo responded, ―I

guess you could say, to kill the person.‖ He also stated that as hard as appellant and

Marcus were kicking Garcia, ―it was like they were going to kill him.‖ As they got back

into the car, Castillo saw appellant searching through Garcia‘s pockets. When they left

Garcia, he was unconscious.

         After they got back into the car, they went to Eina‘s house. Castillo‘s wife picked

years.

                                             15
him up shortly thereafter. Castillo stated that appellant, Marcus, and Rolando had sent

him signals to keep his mouth shut. Castillo testified that at one point, appellant and

Marcus had asked him if he was ―talking‖ and said that if he testified, ―you know what it

is.‖ Castillo took the comment to mean that they ―were going to come after [him]‖ if he

testified against them.

           On cross-examination by appellant‘s counsel, Castillo admitted that no one ever

said, ―Let‘s kill Jason Garcia.‖

                                      II.    SUFFICIENCY OF EVIDENCE

           By his sole issue, appellant contends that the evidence is insufficient to support

his conviction because: (1) the State failed to prove that he had the specific intent to

cause Garcia‘s death; and (2) Garcia‘s death was caused by intervening circumstances,

not appellant‘s specific acts or omissions.6 With respect to the first argument, other

than citing to general authority that the State must prove a circumstantial case,

appellant‘s brief does not cite any authority, cite any portion of the record, or otherwise

discuss his contention that the State failed to prove the intent element of capital murder.

See TEX. R. APP. P. 38.1(i). With regard to his argument that Garcia‘s death was

caused by intervening circumstances, appellant relies on Dr. Wood‘s testimony that

Garcia had sufficient heart disease that the trauma of the assault could have caused

him to suffer a heart attack.

    A. Standard of Review and Applicable Law

           The court of criminal appeals has held that there is ―no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-


           6
               We construe appellant‘s second argument as a challenge to the causation element of the
offense.

                                                    16
sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. 2010) (plurality

op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we review

claims of evidentiary sufficiency under ―a rigorous and proper application of the Jackson

standard of review.‖ Id. at 906–07, 912. Under the Jackson standard, ―the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.‖ Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99 (characterizing the Jackson standard as: ―Considering all of the evidence in

the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt‖).       The standard for reviewing a challenge to the legal

sufficiency of the evidence is the same for both direct and circumstantial evidence

cases. Hernandez v. State, 198 S.W.3d 257, 261 (Tex. App.—San Antonio 2006, pet.

ref‘d).

          We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref‘d) (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




                                             17
the particular offense for which the defendant was tried.‖ Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

       A person commits capital murder if he intentionally or knowingly causes the

death of an individual and intentionally commits the murder in the course of committing

or attempting to commit, among other things, kidnapping. TEX. PENAL CODE ANN. §

19.02(b)(1) (West 2003), § 19.03(a)(2) (West Supp. 2010); Hernandez, 198 S.W.3d at

261. Capital murder is a result-of-conduct oriented offense; the crime is defined in

terms of one‘s objective to produce, or a substantial certainty of producing, a specified

result, i.e., the death of the named decedent. Roberts v. State, 273 S.W.3d 322, 329

(Tex. Crim. App. 2008). ―A person acts intentionally, or with intent, with respect to the

nature of his conduct or to a result of his conduct when it is his conscious objective or

desire to engage in the conduct or cause the result.‖ TEX. PENAL CODE ANN. § 6.03(a)

(West 2003). ―A person acts knowingly, or with knowledge, with respect to a result of

his conduct when he is aware that his conduct is reasonably certain to cause the result.‖

Id. § 6.03(b).

       In deciding whether the defendant had the culpable mental state to commit

murder, the jury weighs the evidence introduced at trial. Childs v. State, 21 S.W.3d

631, 635 (Tex. App.—Houston [1st Dist.] 2000, pet. ref‘d). A person‘s knowledge and

intent may be inferred from the ―acts, words, and conduct of the accused.‖ Sholars v.

State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref‘d); see Hart

v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). It may also be inferred from the

extent of the victim‘s injuries, the method used to produce the injuries, and the relative

size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.



                                           18
1995). In a murder case, a particularly brutal or ferocious mechanism of death, inflicted

on a helpless victim, can be controlling upon the issue of intent or knowledge. Martin v.

State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (concluding

evidence of severe brain injuries was legally and factually sufficient to show intent to kill

ten-month-old and support a capital murder conviction). Intent and knowledge are fact

questions for the jury, and are almost always proven through evidence of the

circumstances surrounding the crime. Childs, 21 S.W.3d at 635. Intent to kill may be

inferred from the use of a deadly weapon. Henderson v. State, 825 S.W.2d 746, 749

(Tex. App.—Houston [14th Dist.] 1992, pet. ref'd).

       ―A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both. TEX. PENAL CODE ANN. § 7.01(a) (West 2003). A person is

―criminally responsible‖ for an offense committed by the conduct of another if, acting

with intent to promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2).

Evidence is sufficient to convict under the law of parties where the accused is physically

present at the commission of the offense and encourages its commission by words or

other agreement. Hernandez, 198 S.W.3d at 261. In determining whether an accused

participated as a party, the fact finder may examine the events occurring before, during,

and after the commission of the offense and may rely on actions of the accused that

show an understanding and common design to commit the offense.                 Id.   Further,

circumstantial evidence may be used to prove party status. Id.




                                             19
       Here, the jury was instructed that it could find appellant guilty of capital murder as

a principal or as a party. The jury returned a general verdict; therefore, if the evidence

is sufficient to support a finding under either of the allegations submitted, we must

uphold the jury‘s verdict. See id.

       The jury was also given an accomplice-witness instruction and instructed that

Rolando and Castillo were accomplices. See TEX. CODE CRIM. PROC. ANN. art. 38.14

(West 2005).7 Appellant has not raised an issue challenging the sufficiency of the non-

accomplice witness testimony.

   B. Discussion

       As noted above, appellant does not cite any portion of the record in support of his

assertion that neither he, Marcus, Rolando, or Castillo, intentionally or knowingly killed

Garcia.    Rolando testified that:      (1) appellant and Marcus kicked and beat Garcia

repeatedly in the face, head, and upper body area with their hands and feet; (2) Garcia

looked like he would die if he did not get immediate help; (3) appellant wanted to run

over Garcia‘s body with the car, but Rolando did not want to get Garcia‘s DNA

underneath the car; (4) none of the men called 911, and Garcia was left unresponsive in

the parking lot for at least thirty minutes before Rendon and Eina called 911; (5)

appellant, Marcus, and Rolando cleaned Garcia‘s blood out of the vehicle and burned

Garcia‘s cap, wallet, and cell phone; and (6) appellant, Marcus, and Rolando left the

morning after the murder to stay in Corpus Christi and were attempting to escape to

Mexico when they were apprehended. Castillo testified that: (1) appellant and Marcus


       7
         Article 38.14 provides that ―[a] conviction cannot be had upon the testimony of an accomplice
unless corroborated by other evidence tending to connect the defendant with the offense committed; and
the corroboration is not sufficient if it merely shows the commission of the offense.‖ TEX. CODE CRIM.
PROC. ANN. art. 38.14 (West 2005).

                                                 20
kicked Garcia the most in the head and face; (2) if a person continues to kick in the

head someone who is already senseless and non-responsive (as appellant and Marcus

did), the intent is to kill; and (3) Marcus and appellant were kicking Garcia so hard that

―it was like they were going to kill him.‖ Castillo also testified that before Garcia was

pulled out of the car, Marcus was yelling, ―[l]et‘s fuck this dude up.‖

       Although the jury was required to corroborate the accomplice-witness testimony

of Rolando and Castillo, see TEX. CODE CRIM. PROC. ANN. art. 38.14, there was sufficient

other evidence tending to connect appellant to the offense. ―‗[P]roof that the accused

was at or near the scene of the crime at or about the time of its commission, when

coupled with other suspicious circumstances, may tend to connect the accused to the

crime so as to furnish sufficient corroboration to support a conviction.‘‖ Smith v. State,

332 S.W.3d 425, 443 (Tex. Crim. App. 2011) (quoting Richardson v. State, 879 S.W.2d

874, 880 (Tex. Crim. App. (1993)). Moreover, a defendant‘s behavior or actions prior to

or following an offense may tend to connect the defendant with the commission of the

offense. Id. at 445. Here, Eina and Rendon testified that: (1) Marcus and appellant

said they had beaten Garcia with their fists; (2) the men burned Garcia‘s belongings in a

barbeque pit at Eina‘s; and (3) appellant, Marcus, and Rolando left town the next

morning because of ―what they did.‖ This was sufficient to tend to connect appellant to

the commission of the offense. A jury may infer intent from any facts that tend to prove

its existence, such as the acts, words, and conduct of the defendant. Sholars, 312

S.W.3d at 703. The jury was free to infer that appellant intended to kill Garcia when he

and Marcus continued to kick and beat him in the head and face after Garcia was semi-

conscious and unresponsive and when appellant wanted to run over Garcia‘s body with



                                             21
the vehicle. We conclude that the evidence is legally sufficient to support the jury‘s

finding that appellant intentionally or knowingly killed Garcia.

       Secondly, appellant argues the evidence is insufficient because Garcia‘s death

was caused by intervening circumstances. We construe appellant‘s argument as a

challenge to the causation element of the offense.          Appellant relies on Dr. Wood‘s

testimony that (1) Garcia was obese and had moderate heart disease, (2) had cocaine

and marihuana in his system, and (3) the injuries sustained by Garcia were not so

severe that anyone sustaining the injuries would necessarily have died.              We find

appellant‘s argument to be without merit. Dr. Wood also testified that although the

trauma of the assault could have caused Garcia to suffer a heart attack, ―it‘s still the

blunt force injuries he sustained, even if he had a heart attack, that would be his cause

of death.‖ She testified that the injuries sustained by Garcia could cause death in a

healthy person without heart disease, and that in this case, Garcia‘s ―injuries did cause

his death or at least contributed to his death.‖ It was the jury‘s role to reconcile conflicts,

contradictions, and inconsistencies in the evidence, and to judge the credibility of

witnesses. See Brooks, 323 S.W.3d at 900; Brown v. State, 270 S.W.3d 564, 568 (Tex.

Crim. App. 2008). We afford almost complete deference to these determinations. See

Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008). We conclude that

the evidence was legally sufficient to support the causation element of the offense.

       Viewing all of the evidence in the light most favorable to the verdict, we conclude

that the evidence is legally sufficient for a rational jury to find beyond a reasonable

doubt that appellant intentionally or knowingly killed Garcia and intentionally committed

the murder in the course of committing kidnapping. See Jackson, 443 U.S. at 318-18;



                                              22
Brooks, 323 S.W.3d at 895. Viewing all of the evidence in the light most favorable to

the verdict, we also conclude that the evidence is legally sufficient for a rational jury to

find beyond a reasonable doubt that appellant, acting as a party, intentionally or

knowingly caused Garcia‘s death.       See Jackson, 443 U.S. at 318-18; Brooks, 323

S.W.3d at 895.      Thus, the evidence was legally sufficient to support appellant‘s

conviction. We overrule his sole issue.

                                     IV. CONCLUSION

       We affirm the trial court‘s judgment.




                                                    DORI CONTRERAS GARZA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
31st day of August, 2011.




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