                               NUMBER 13-08-497-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


GILBERT LOPEZ,                                                                 Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 94th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
                Memorandum Opinion by Justice Vela

       A jury convicted appellant, Gilbert Lopez, of burglary of a habitation with the intent

to commit aggravated assault, a first-degree felony. See TEX . PENAL CODE ANN . §

30.02(a)(3), (d) (Vernon 2003). The jury assessed punishment at five years’ imprisonment,

plus a $10,000 fine. In a single issue, appellant challenges the factual sufficiency of the
evidence to support his conviction. We affirm.

                                 I. FACTUAL BACKGROUND

A. State’s Evidence

       Arthur Lopez lived on Buenos Aires Street in Corpus Christi, Texas. On April 3,

2005, appellant’s sister, Lisa Lopez, and her boyfriend, Gabriel Barrera, fought with

Arthur’s wife and stepson. The fight occurred on the street in front of Arthur’s home, but

Arthur denied any involvement in the fight. After the fight, Arthur’s wife and stepson went

to the hospital. Later that evening, between 7:00 and 8:00 p.m., appellant, Jose Naranjo,

and several men “kicked in” the front door to Arthur’s house. Arthur ran into his bedroom,

where appellant hit him with a revolver on the front of his head, and Naranjo hit him with

a gun on the back of his head. He fell onto a comforter, and after the intruders left, he

went into the bathroom. He saw blood “squirting” and “dripping everywhere.” While he

was at the hospital, his father-in-law cleaned up the blood. Arthur testified that neither

appellant, Naranjo, nor any of the other men had permission to enter his home.

       Arthur’s stepdaughter, who was outside his house following the street fight, testified

that “a couple of minutes after” her mother and brother went to the hospital, she saw three

cars pull up in front of Arthur’s home. Five men, including appellant, got out and “forced

entry” through the front door and went into Arthur’s house. She said that appellant and a

couple of the other men were carrying guns, but she was not sure what kind of guns they

had. She thought this happened “somewhere around 5 and 7 p.m.” and that the “first fight”

occurred “about 20 or 30 minutes before the second incident.”

       On the evening of Arthur’s assault, Starla Wyatt, a crime-scene investigator (“CSI”),

went to Arthur’s home to photograph the scene. She photographed blood in the bathroom

and in the hallway in front of the bathroom. She did not recall seeing blood in any of the
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bedrooms.     She said that if she had seen blood in a bedroom, she would have

photographed it. She did not recall seeing any blood outside of the house and testified that

“it appear[ed] that” the assault occurred inside the house.

B. Defense Evidence

       Lisa Lopez testified that on the date in question, she and Gabriel Barrera lived “10

to 13" houses down the street from Arthur. Barrera testified that during the street fight, he

hit Arthur about ten times in the face with his fists. On cross-examination, Lopez testified

that “it’s possible” Barrera caused the injuries to Arthur’s head and that Arthur “could have

been bleeding” because of this fight.

       Appellant testified that on the date in question, he did not see Arthur, and he did not

go into Arthur’s house and hit him with a gun. He stated that he and his girlfriend, April

Metting, stopped near Arthur’s home shortly after the street fight. Because Lisa Lopez and

Barrera were going to the hospital by ambulance, he drove Lopez’s vehicle to her house

and parked it there. Appellant testified that after he parked Lopez’s vehicle, he and Metting

drove to “Peter Pipers,” which took “[m]aybe five minutes.” They arrived at Peter Piper

between 7:00 and 7:30 p.m. and left about 8:00 p.m. Metting confirmed that appellant did

not leave Peter Piper before 8:00 p.m.

       Metting’s friend, Breanna Campbell, testified that on the date in question, she saw

appellant and Metting at Peter Piper “probably about right at 7, 7:15.” She did not see any

blood on appellant. When she left Peter Piper at 7:45 p.m., they were still there.

C. State’s Rebuttal Evidence

       Arthur’s sister-in-law saw the street fight and testified that Arthur did not get involved

in the fight. She stated that after the street fight, appellant, Naranjo, and some others

pushed in the front door to Arthur’s home and came in with “guns in their hands.” She hid
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in a closet and heard “a lot of kicking and banging.” On cross-examination, she said this

incident occurred “anywhere from between five and eight.”

       Lydia Curiel, an interim Metrocom director for the Corpus Christi Police Department,

testified that on April 3, 2005, a dispatcher received a call from 1509 Buenos Aires at 7:48

p.m. Curiel stated that the “call was entered as a robbery/home invasion in progress” and

that appellant and Naranjo were the suspects.

                                        II. DISCUSSION

       In his sole issue, appellant challenges the factual sufficiency of the evidence to

support his conviction. Specifically, he argues that the evidence is “too weak” to show that

he was one of the men who entered Arthur’s home and assaulted him.

A. Standard of Review

       In a factual-sufficiency review, the only question to be answered is: “Considering

all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

Evidence can be deemed factually insufficient in two ways: (1) “the evidence supporting

the conviction is ‘too weak’ to support the fact finder’s verdict”; or (2) “considering

conflicting evidence, the factfinder’s verdict is ‘against the great weight and preponderance

of the evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a court of

appeals conducts a factual-sufficiency review, it must defer to the jury’s findings. Id. The

court of criminal appeals has “set out three ‘basic ground rules’ implementing this

standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate court must

consider all of the evidence in a neutral light, as opposed to in a light most favorable to the

verdict. Id. Second, the appellate court “may only find the evidence factually insufficient
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when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the

evidence is too weak to support the verdict or why the conflicting evidence greatly weighs

against the verdict. Id. Although the verdict is afforded less deference during a factual-

sufficiency review, an appellate court is not free to “override the verdict simply because it

disagrees with it.” Id.

B. Applicable Law

         Our review of a factual-sufficiency challenge should be examined under the

principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 281.

“‘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.’” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009)

(quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

         The indictment in this case alleged, in relevant part, that appellant and Naranjo “did

then and there intentionally or knowingly enter a habitation without the effective consent

of ARTURO LOPEZ, the owner thereof, and attempted to commit or committed the felony

offense of AGGRAVATED ASSAULT . . . .” (emphasis in original). The elements of

burglary of a habitation as charged in the indictment are: (1) a person (2) without the

effective consent of the owner (3) intentionally and knowingly (4) enters a habitation (5)

and commits or attempts to commit aggravated assault, a felony. See TEX . PENAL CODE.

ANN . § 30.02(a)(3). A person commits the offense of assault if that person intentionally,

knowingly, or recklessly causes bodily injury to another. Id. § 22.01(a)(1) (Vernon Supp.

2009).     “‘Bodily injury’ means physical pain, illness, or any impairment of physical
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condition.” Id. § 1.07(a)(8). Assault becomes aggravated assault if the person committing

the assault uses or exhibits a deadly weapon during the commission of the assault. Id. §

22.02(a)(2). A deadly weapon is defined, in relevant part, as “a firearm or anything

manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily

injury. . . .” Id. § 1.07(a)(17).

C. Law of Parties

       Section 7.02(a)(2) of the penal code states: “(a) A person is criminally responsible

for an offense committed by the conduct of another if: . . . “(2) 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) (Vernon 2003). “Evidence

is sufficient to support a conviction under the law of parties where the actor is physically

present at the commission of the offense, and encourages the commission of the offense

either by words or other agreement.” Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim.

App. 1986); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Because an

agreement between parties to act together in common design can seldom be proven by

words, the State often must rely on the actions of the parties, shown by direct or

circumstantial evidence, to establish an understanding or a common design to commit the

offense. Miller v. State, 83 S.W.3d 308, 314 (Tex. App.–Austin 2002, pet. ref’d). The

evidence must show that at the time of the offense, the parties were acting together, each

contributing some part towards the execution of their common purpose. Burdine, 719

S.W.2d at 315. In determining whether a defendant participated in an offense as a party,

the court may examine the events occurring before, during, and after the commission of

the crime and may rely on the defendant’s actions that show an understanding and

common design to commit the crime. Burdine, 719 S.W.2d at 315; Cordova, 698 S.W.2d
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at 111; Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). Circumstantial evidence

may suffice to show that an accused is a party to an offense. Wygal v. State, 555 S.W.2d

465, 469 (Tex. Crim. App. 1977); Miller, 83 S.W.3d at 314.

D. Analysis

       The State’s evidence showed that: (1) Arthur was not involved in the street fight;

(2) the CSI testified that “it appear[ed] that” the assault occurred inside Arthur’s home; (3)

appellant and Naranjo forced their way through the front door to Arthur’s home and entered

without his permission; (4) while inside the home, appellant hit Arthur with a revolver, and

Naranjo hit him with a gun; (5) Arthur suffered injuries from these blows; (6) the offense

occurred between 7:00 and 8:00 p.m.; (7) police dispatch received a call about the incident

at 7:48 p.m.; and (8) Curiel testified the “call was entered as a robbery/home invasion in

progress” and that appellant and Naranjo were the suspects.

       The contrary evidence showed: (1) appellant was with his girlfriend at Peter Piper

between 7:00 and 8:00 p.m.; (2) Campbell did not see any blood on appellant when she

saw him at Peter Piper; (3) the CSI did not recall seeing any blood in any of the bedrooms

in Arthur’s house; (4) prior to the burglary, Barrera hit Arthur about ten times in the face

with his fists; and (5) appellant testified he did not see Arthur on the date in question and

did not go into Arthur’s house and hit him with a gun.

       Appellant directs our attention to the alibi evidence, as well as the evidence that

Barrera hit Arthur in the face several times and that the CSI did not recall seeing blood in

any of the bedrooms. However, Arthur and his sister-in-law identified appellant and

Naranjo as two of the men who broke into his house. The identification of appellant by an

eye-witness is sufficient to support his conviction. See Davis v. State, 177 S.W.3d 355,

359 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (stating “[i]t is well established that a
                                          7
conviction may be based on the testimony of a single eyewitness.”) (citing Aguilar v. State,

468 S.W.2d 75, 77 (Tex. Crim. App. 1971)); Harmon v. State, 167 S.W.3d 610, 614 (Tex.

App.–Houston [14th Dist.] 2005, pet. ref’d) (holding witness’s testimony identifying

defendant is sufficient, standing alone, to support conviction). Further, Arthur identified

appellant and Naranjo as the persons who hit him with a revolver and a gun, respectively.

“Testimony using any of the terms ‘gun’, ‘pistol’ or ‘revolver’ is sufficient to authorize the

jury to find that a deadly weapon was used.” Wright v. State, 591 S.W.2d 458, 459 (Tex.

Crim. App. 1979). Thus, Arthur’s testimony is sufficient to satisfy the element that a deadly

weapon was used to assault him. See id.

       With respect to whether appellant was a party to the offense, taking into account his

active role with Naranjo in forcibly entering Arthur’s house and assaulting him, the jury

could have reasonably found that appellant and Naranjo acted together under a common

design to enter Arthur’s home and assault him. See Wygal, 555 S.W.2d at 469 (stating

that “[c]ircumstantial evidence may be sufficient to show that one is a party to the

offense.”); see also Miller, 83 S.W.3d at 314.

       Because the jury is the exclusive judge of the credibility of the witnesses and of the

weight to be given their testimony, we cannot, on appeal, weigh the credibility of the

witnesses. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Here, the

jury chose to believe the State’s evidence and disbelieve the testimony of appellant and

his alibi witnesses. Weighing all of the evidence in a neutral light, the evidence is not so

weak that the verdict is clearly wrong and manifestly unjust. See Laster, 275 S.W.3d at

518. Also, there is no objective basis in the record to conclude that the great weight and

preponderance of the evidence contradicts the jury’s verdict. See Watson, 204 S.W.3d at

417. We hold that the evidence is factually sufficient to support the conviction. Appellant’s
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sole issue is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.



                                                   ROSE VELA
                                                   Justice


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

Delivered and filed the 25th
day of March, 2010.




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