                                   NO. 07-07-0009-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                 OCTOBER 26, 2007
                          ______________________________

                                 DANIEL GUERRERO,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 72ND DISTRICT COURT OF CROSBY COUNTY;

                    NO. 2940; HON. RUBEN G. REYES, PRESIDING
                         _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Daniel Guerrero was convicted of murder. In appealing that conviction, he contends

the evidence is legally and factually insufficient to support it. We disagree and affirm the

judgment.

       Background

       On the night of January 9, 2005, around 9:00 p.m., Victoria Barron heard a knock

at her front door. Barron as well as her cousin JoAnn Mendoza and Mendoza’s boyfriend
Abel Reyna walked out the back door and proceeded around the side of the house to see

who was there. A man later identified as appellant asked if a person named LaLa Robledo

lived there. Barron replied that he did not. Barron and appellant shook hands and

continued a conversation in Spanish. Appellant then left, and the others went back inside

the house.

        Mendoza and Reyna later left to get something to eat. While they were gone, there

was another knock at the door. Barron went to the back porch to speak with the person.

Barron’s boyfriend Ricky Perez also went outside after a short time and observed Barron

in conversation with appellant. Perez became jealous and told appellant to leave which

he did. At approximately 9:45 p.m., Mendoza and Reyna returned to the house to let

Mendoza’s children out, and they noticed Barron talking outside to appellant. Reyna

believed Barron and appellant were having an argument. However, appellant left at that

time.

        Later, Mendoza and Reyna returned from the store and re-entered the house.

There was then another knock at the back door. Barron went out alone to see who it was

and closed the door behind her. After some period of time, when Barron did not return, the

others went to check on her and found her lying in blood in the back yard. She had been

stabbed with a knife which had been driven through her skull. The knife handle had been

broken off and was never recovered. Barron later died from the knife having severed her

brain stem and vertebral arteries.

        After receiving a description of appellant, law enforcement persons arrested him a

short time later walking down the highway about one and one-half miles from the scene.



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He had blood from a cut on his finger and stains on his clothing that appeared to be from

blood. He was also determined to be intoxicated.

      Legal Sufficiency

      The standard by which we review the legal sufficiency of the evidence is well

established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979) and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

      The mere presence of an accused at or near the scene of a crime standing alone

is insufficient to establish his guilt. King v. State, 638 S.W.2d 903, 904 (Tex. Crim. App.

1982); Robertson v. State, 888 S.W.2d 493, 495 (Tex. App.–Amarillo 1994, pet. ref’d).

However, it is a circumstance from which a factfinder may draw an inference of guilt when

combined with other facts. Mabra v. State, 997 S.W.2d 770, 774 (Tex. App.–Amarillo

1999, pet. ref’d). At bar, no witness saw the person who knocked at the back door the last

time before Barron was stabbed. There is only evidence that appellant was at the house

more than once earlier in the evening. Furthermore, DNA evidence was not able to confirm

that appellant’s blood was on Barron or that her blood was on him.

      Nevertheless, there was some other evidence of appellant’s guilt in that no one had

observed appellant bleeding (particularly when he shook hands with Barron) when he had

been at the house earlier, and the medical examiner testified that, because of the

placement and force of the stabbing, the perpetrator could have sustained a cut to the

hand or fingers. Furthermore, two fellow jail inmates testified they had heard appellant

state that he had thrown the knife handle and one of the two shirts he was wearing into a

garbage can or dumpster.



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       This evidence, taken in the light most favorable to the verdict, is sufficient to allow

a rational factfinder to determine beyond a reasonable doubt that appellant committed the

offense. Thus, the evidence is legally sufficient to sustain the verdict.

       Factual Sufficiency

       The more difficult question is whether the evidence is factually sufficient. The

standard by which we make that determination is found in Watson v. State, 204 S.W.3d

404 (Tex. Crim. App. 2006) to which we refer the parties.

       Although Reyna believed that Barron and appellant had been arguing, no one else

reported the same, and Reyna’s testimony was based only on “how they were all moving

around.” There was also nothing to indicate that he had told that fact to anyone before

trial. Moreover, no explanation was provided for any alleged argument because there was

no evidence that appellant and Barron knew each other prior to that evening. The medical

examiner was also unable to positively state that the assailant had cut his hand during the

stabbing, and there was no evidence that appellant possessed a knife.

       As to the fellow inmates who overheard appellant say that he had thrown one of his

shirts away, appellant was wearing two shirts at the time he was picked up by police, and

several witnesses testified he was dressed the same when they saw him later that night

at the police station as he had been at Barron’s house. Some of the visitors at Barron’s

house that evening were also inconsistent as to the description of appellant and the timing

of certain events.

       While the evidence of appellant’s presence at Barron’s home and the cut on his

hand would not be enough by itself to sustain his conviction, it is some evidence from

which an inference may be drawn and, when combined with the alleged confession

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reported by appellant’s fellow inmates, we cannot say that a rational jury could not have

found appellant guilty.     Admittedly, the credibility of the inmates who reported the

confession was attacked. However, they knew that the knife handle had been broken off,

and there was no evidence of any motive or gain they achieved by their testimony. So, it

was for the jury to determine their credibility and assign weight to their testimony. In sum,

while the evidence of appellant’s guilt is certainly not overwhelming, it is not so completely

lacking so as to undermine our confidence in the proceeding.

         Finally, we note appellant’s reference to Zimmerman v. State, 753 S.W.2d 234 (Tex.

App.–Amarillo 1988, no pet.) and Skelton v. State, 795 S.W.2d 162 (Tex. Crim. App.

1989).     Neither involved fellow inmates overhearing the accused discuss how he

purportedly disposed of various incriminating items. That circumstance appears here,

however. And, if their testimony is believed (something the jury opted to do), that evidence

directly ties appellant to the murder.

         The evidence of appellant’s guilt is both legally and factually sufficient, and the

judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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