                         PD-1343-15

                                NO.

             IN THE COURT OF CRIMINAL APPEALS OF

                       OF THE STATE OF TEXAS

                          AT AUSTIN, TEXAS

_______________________________________________________________

                         No.01-12-01074-CR
                    IN THE COURT OF APPEALS
                             FOR THE
                FIRST SUPREME JUDICIAL DISTRICT
                           AT HOUSTON
__________________________________________________________________
FRANCISCO ARZATE                    §          APPELLANT

     V.                               §

STATE OF TEXAS                      §           APPELLEE
__________________________________________________________________

       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

__________________________________________________________________



                                          J. SIDNEY CROWLEY
                                          214 Morton St.
                                          Richmond. Tx. 77469
                                          TBC No. 05170200
                                          Attorney for Appellant

           October 15, 2015
                              INTERESTED PARTIES

INTERESTED PARTIES

APPELLANT
Francisco Arzate
Texas Department of Criminal Justice
Institutional Division

TRIAL COUNSEL
Anthony Osso
Mario Madrid
440 Louisiana, Suite 1730
Houston, Texas 77002

APPELLATE COUNSEL
J. Sidney Crowley
214 Morton St.
Richmond, Texas 77469

STATE OF TEXAS
Devon Anderson
District Attorney, Harris County
1201 Franklin St.
Houston, Texas 77002

Tina Ansari
Assistant District Attorney
Harris County, Texas

Charles Brodsky
Assistant District Attorney
Harris County, Texas




                                       2
                                      TABLE OF CONTENTS



INTERESTED PARTIES.......................................................................................2

LIST OF AUTHORITIES.......................................................................................4

STATEMENT REGARDING ORAL ARGUMENT..............................................5

STATEMENT OF THE CASE...............................................................................6

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE....................7

GROUNDS FOR REVIEW....................................................................................8

GROUND FOR REVIEW NUMBER ONE
    The Court of Appeals erred when it held that the evidence was sufficient to
    support Appellant’s conviction for capital murder.........................................9

PRAYER FOR RELIEF.......................................................................................11

CERTIFICATE OF COMPLIANCE.....................................................................12

CERTIFICATE OF SERVICE..............................................................................12

APPENDIX A. (OPINION BELOW)..................................................................13




                                                     3
                                       LIST OF AUTHORITIES

Cases

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000)......................................9

Davis v. State, 180 S.W.3d 276, 286 (Tex.App.-Texarkana, 2005)..........................10

Greene v. State, 124 S.W.3d 789, 792 (Tex.App-Houston [1st Dist.] 2003,ref’d)...10

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1989).........................................9

Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998)...................................10

King v.State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).........................................9

Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986)..................................9

Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993)..................................10

Salinas v. State, 163 S.W.2d 734, 737 (Tex.Crim.App. 2005)..................................9

Scott v. State, 2007 WL 2264458 (Tex.App.-Houston [1st Dist.] 2007)(not

designated for publication).......................................................................................10

Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986)....................................9




                                                         4
               STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that oral argument is not necessary in this case.




                                         5
                           STATEMENT OF THE CASE

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Appellant was convicted by a jury of the felony offense of capital murder and

assessed a punishment of confinement in the Texas Department of Criminal Justice,

Correctional Division, for life.




                                        6
      STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant’s appeal was affirmed in an unpublished opinion of the First

Court of Appeals rendered December 17, 2012. No motion for rehearing was filed.




                                        7
                            GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE:

      The Court of Appeals erred when it held that the evidence was sufficient to

sustain Appellant’s conviction for capital murder.




                                         8
                     GROUND FOR REVIEW NUMBER ONE

      The Court of Appeals erred when it held that the evidence was sufficient to

support Appellant’s conviction for capital murder.

                              Argument and Authorities

In a legal sufficiency review the appellate court reviews all of the evidence in the

light most favorable to the verdict and determines whether any rational trier of fact

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

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); Salinas v. State, 163 S.W.3d

734, 737 (Tex.Crim.App. 2005); Wesbrook v. State, 29 S.W.3d 103, 111,

(Tex.Crim.App. 2000); The jury as the sole judge of the credibility of the witnesses,

is free to believe or disbelieve all or part of a witness’ testimony. Jones v. State, 984

S.W.2d 254, 257 (Tex.Crim.App. 1998). The jury may reasonably infer facts from the

evidence presented, credit the witnesses it chooses to, disbelieve any or all of the

evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp v. State,

707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Reconciliation of conflicts in the

evidence is within the jury’s discretion and such conflicts alone will not warrant

reversal if there is enough credible evidence to support a conviction. Losada v. State,

721 S.W.2d 305, 309 (Tex.Crim.App. 1986). An appellate court may not reevaluate

the weight and credibility of the evidence produced at trial and in so doing substitute


                                           9
its judgement for that of the factfinder. King v. State, 29 S.W.3d 556, 562

(Tex.Crim.App. 2000). Inconsistencies in the evidence are resolved in favor of the

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). The appellate

court does not engage in a second evaluation of the weight and credibility of the

evidence, but only ensures that the jury reached a rational decision. Muniz v. State,

851 S.W.2d 238, 246 (Tex.Crim.App. 1993).

            In Appellant’s case there were no witnesses who testified that they had

visually observed the shooter. The only evidence that linked Appellant to the murder

was the testimony of the complainant’s family that they recognized the voice of the

intruder as that of Appellant. There was no physical evidence such as fingerprints or

DNA or ballistics evidence that linked Appellant with the crime.

      It is true that eyewitness testimony is unnecessary, as long as other evidence

establishes the guilt of the offense. Greene v. State, 124 S.W.3d 789, 792 (Tex.App.-

Houston [1st Dist.] 2003, ref’d). Appellant is aware that voice identification has been

held legally and factually sufficient to support a conviction. Davis v. State, 180

S.W.3d 276, 286 (Tex.App.-Texarkana, 2005); Scott v. State, 2007 WL 2264458

(Tex.App.-Houston [1st Dist.] 2007)(not designated for publication). Appellant would

argue that voice identification alone provides a shaky foundation and in and of itself

is less reliable than eyewitness identification and that a rational jury could not have


                                          10
found Appellant guilty based upon that alone. It is true that in Appellant’s case there

was some circumstantial evidence in the remarks Appellant allegedly made to Patricia

and to Ricardo Gonzalez, but would urge that there was never a direct admission by

Appellant that he had committed the murder. Even with this additional evidence, the

court should hold that the evidence was legally insufficient to support the conviction.

The Court of Appeals erred when it held otherwise.

                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this Petition for Discretionary Review, that the case be set for submission; that

after submission this Court reverse the judgement of the Court of Appeals and reform

the judgement to reflect an acquittal.

                                                        Respectfully submitted,

                                                         /s/ J. Sidney Crowley

                                                        J. Sidney Crowley
                                                        214 Morton St.
                                                         Richmond, Tx. 77469
                                                        (281)232-8332
                                                        TBC No. 05170200




                                          11
                        CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document contains 1102 words, generated by

computer.



                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument has been mailed

to the Harris County District Attorney’s Office, and to Lisa C. McMinn, State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, this the 15th day of

October, 2015.

                                                           /s/ J. Sidney Crowley




                                          12
Opinion issued December 17, 2013.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-01074-CR
                          ———————————
                     FRANCISCO ARZATE, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 232nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1317247


                         MEMORANDUM OPINION

      Francisco Arzate appeals a judgment convicting him of capital murder for

the shooting of his father-in-law, Guillermo Valdez. See TEX. PEN. CODE ANN.

§ 19.03(a)(2) (West Supp. 2013). A jury found Arzate guilty, and the trial judge
sentenced him to life in prison. In his sole issue on appeal, Arzate contends that

the evidence is legally insufficient to support his conviction. We affirm.

                                     Background

      Arzate was married to Maria and Guillermo Valdez’s daughter, Patricia, for

almost ten years, but he and Patricia had separated two years before the incident.

Patricia and Arzate had five children. Patricia testified that she and Arzate had an

unstable relationship and often fought and that she moved to her parents’ home

upon her separation from Arzate. In August 2011, Arzate was upset because he

had recently learned that Patricia was in a relationship with another man. Arzate

had called Patricia upset about her boyfriend and threatened that he would take

action if Patricia did not end that relationship.

      Patricia testified that on the day of the incident, August, 19, 2011, she talked

to Arzate about paying school tuition, but they did not fight, and it was a “normal

day.” Arzate left a voicemail on Patricia’s phone around 11:30 p.m. that night

saying that “he was suffering so [Patricia was] going to suffer the same way that he

was suffering.” Patricia was at the hospital with her oldest son that night, but she

called her sister because the voicemail worried her. A few minutes later, Maria

called Patricia and told her that Arzate had shot Maria and Guillermo.

      Although Patricia was not at her parents’ home at the time of the shooting,

several others were. Maria testified that she and Guillermo were in their bedroom


                                            2
watching television with the door closed late at night when Maria heard a noise.

Guillermo opened the bedroom door, Maria heard Arzate say “he was going to kill

us,” and Arzate began shooting at Maria and Guillermo. Maria testified that she

had heard Arzate’s voice on many occasions and immediately recognized it. Maria

also testified that she saw the side of the shooter’s body and it looked like Arzate.

On the night of the shooting, Maria told police that she saw only the shooter’s

shadow, and not the shooter’s face.

       Guillermo and Maria’s other daughter, Elizabeth, was also at the scene.

She had fallen asleep in one of the bedrooms a little after midnight, but she woke

up when she heard Arzate screaming in Spanish from the living room several

times, “where’s the bastard?” Elizabeth then heard gunshots and Maria screaming,

so she ran to the living room and saw that the front door, which had been closed

and locked, was open and appeared to have been forced open. She saw that

Guillermo was lying on his back—shot more than once—and Maria was bleeding.

When Elizabeth saw Maria, Maria was screaming, “why Francisco, why?” and

Elizabeth believed that Maria was referring to Arzate. Elizabeth did not see the

shooter, but she testified that there was no doubt in her mind that the voice she

heard yelling “where is the bastard?” was the voice of Arzate.

      Elizabeth’s thirteen year old son, Heron, was also home and sleeping on the

living room couch when the shooting took place. Heron testified that he also heard


                                         3
Arzate yelling, “where was the bastard at?” Heron did not see Arzate on the night

of the shooting, but recognized his voice because he had often visited Arzate’s

house. Heron also testified that he heard Maria say, “why Francisco, why?”

      By the time police and EMS arrived, Guillermo was dead from four gunshot

wounds. Arzate called Patricia after the incident, but she did not answer.

      The day after the shooting, Arzate called his employer, Richard Gonzalez,

and told him “that he wasn’t going to be coming in because he had an issue,

something happened with his family and he doesn’t know if he’s ever going to

come back.” Gonzalez testified that during the same phone call, Arzate also said,

“what happened happened.”

      The police suspected Arzate was the shooter and that he had fled to Mexico

shortly after the shooting. Arzate’s brother and sister testified that Arzate went to

Mexico but added that the trip was a planned vacation to visit family. Patricia

testified that this was Arzate’s first trip to Mexico and that he would not have

vacationed there because he did not have documentation that would allow him to

re-enter the United States.

      A few months after the shooting, Arzate sent Patricia a text message that

said, “I’m sorry. Are you guys okay. Are my kids okay.” Patricia testified that

Arzate also called her from Mexico. In one such call, Arzate, who had said he was

angry that Patricia was not taking his calls, threatened Patricia by saying that “The


                                         4
same thing that he did to [her] dad he was going to do it to [her] grandma, that he

knew where she lived and he was going to go over there and get her also.”

      Patricia also testified that Arzate attempted to have her create an alibi for

him. In a letter, Arzate wrote: “do it for our children and for the love we had

between us. You know it wasn’t my fault about your father. Why do you want to

take your children’s father away.” The letter continued: “If you feel something in

your heart you tell the lawyer that I was in Mexico.”

      Arzate also called Gonzalez and threatened that Gonzalez would suffer the

same fate as Guillermo. When Arzate left for Mexico, Arzate had left his car and

tools with Gonzalez. Gonzalez testified that Arzate told him that if Gonzalez did

not pay Arzate’s brother for the vehicle and his tools, that he “was going to kill me

and come after my family.” Gonzalez testified that Arzate added, “If you don’t

believe me you saw what happened to my in-laws.”

                                         Discussion

      In his sole point of error, Arzate contends that the evidence is legally

insufficient to support his conviction. Specifically, Arzate argues that a rational

jury could not have found him guilty based solely upon voice identification, which

he argues is less reliable than eyewitness identification.




                                           5
A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. McGregor v. State, 394 S.W.3d 90, 109 (Tex. App.—Houston [1st Dist.]

2012, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789 (1979)); see also Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App.

2011) (holding Jackson standard is only standard to use when determining

sufficiency of evidence). Our review of “all of the evidence” includes evidence

that was properly and improperly admitted.         McGregor, 394 S.W.3d at 110

(quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

      The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Id. (citing Bartlett v. State,

270 S.W.3d 147, 150 (Tex. Crim. App. 2008)). A jury may accept one version of

the facts and reject another, and it may reject any part of a witness’s testimony. Id.

(citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)). We may not

re-evaluate the weight and credibility of the evidence or substitute our judgment

for that of the fact finder. Id. (citing Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007)).       We afford almost complete deference to the jury’s

determinations of credibility and we resolve any inconsistencies in the evidence in


                                          6
favor of the verdict. Id. (citing Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.

App. 2008); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

B.    Applicable Law

      A person commits capital murder when he commits murder under section

19.02(b)(1) of the Penal Code and “commits the murder in the course of

committing or attempting to commit . . . burglary.”        TEX. PEN. CODE ANN.

§ 19.03(a)(2). A person commits the offense of burglary if, “without the effective

consent of the owner,” the person “enters a building or habitation and commits or

attempts to commit a felony, theft, or assault.”        TEX. PENAL CODE ANN.

§ 30.02(a)(3) (West 2011). Under section 19.02(b)(1), a person commits murder if

he intentionally or knowingly causes the death of another person or intends to

cause serious bodily injury and commits an act clearly dangerous to human life that

causes the death of another. TEX. PENAL CODE § 19.02(b)(1), (2) (West 2011);

Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013).

      A murder conviction may be based on circumstantial evidence. Temple,

390 S.W.3d at 359 (citing Clayton, 235 S.W.3d at 778). “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.” Id. (quoting

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In circumstantial

evidence cases, it is not necessary that every fact and circumstance point directly


                                        7
and independently to the defendant’s guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating

circumstances. Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)).

C.    Analysis

      To prove that Arzate is guilty of capital murder, the State had to prove

beyond a reasonable doubt that Arzate, in the course of a burglary or attempted

burglary, knowingly or intentionally caused Guillermo’s death or intended to cause

Guillermo serious bodily injury and committed an act clearly dangerous to human

life that caused Guillermo’s death. See TEX. PENAL CODE ANN. §§ 19.02(b)(1);

19.03(a)(2).

      We conclude the evidence supports the jury’s guilty verdict. First, three

witnesses who had known Arzate for years identified Arzate as the shooter based

on his voice. Maria testified that she heard Arzate say “he was going to kill us”

and then the shooter began shooting at her and Guillermo. Elizabeth testified that

it was Arzate who screamed “where’s the bastard” right before she heard gunshots.

Heron also testified that it was Arzate who yelled those words. Voice identification

is an acceptable means of identification and has been held sufficient to support a

conviction. See Locke v. State, 453 S.W.2d 484, 485 (Tex. Crim. App. 1970)

(“Voice is a competent means of identification if the witness had any previous


                                         8
acquaintance with the person identified”); Davis v. State, 180 S.W.3d 277, 285–86

(Tex. App.—Texarkana 2005, no pet.) (holding voice identification sufficient to

support conviction).

      Second, Arzate’s conduct after the murder indicates consciousness of guilt.

There is evidence that Arzate was in Mexico after the shooting, despite the fact that

he had not previously traveled to Mexico because his immigration status made it

impossible for him to return. Gonzalez testified that Arzate told him the day after

the murder “something happened with his family and he doesn’t know if he’s ever

going to come back.”

      Finally, there is evidence that Arzate implicitly admitted shooting

Guillermo, explicitly asked Patricia to create an alibi for him, and threatened both

Patricia and Gonzalez that their relatives would meet the same fate as Guillermo if

his demands were not met. Patricia testified that Arzate sent her a letter asking

Patricia to lie about his whereabouts on the night of the shooting. Patricia also

testified that a few months after Guillermo’s murder, Arzate sent her a text

message stating that he was “sorry” and that Arzate also called her from Mexico

and threatened to do the “same thing” to her grandma that he did to Guillermo.

Gonzalez testified that Arzate called him several times after the murder and during

one call threatened to kill Gonzalez and go after his family if Gonzalez did not pay

Arzate’s brother. Gonzalez testified that Arzate substantiated the threat by saying,


                                         9
“if you don’t believe me you saw what happened to my in-laws. What do you think

is going to happen to you[?]” And, in a voicemail Arzate left Patricia on the night

of the shooting, he warned that he was going to make her suffer like she was

making him suffer.

      Arzate contends that the State’s failure to present an eyewitness identifying

Arzate or physical evidence—such as fingerprints, DNA, or ballistic evidence—

linking Arzate with the shooting renders the evidence insufficient. But, the lack of

physical evidence, such as fingerprints, footprints, or DNA, does not render the

evidence supporting a conviction insufficient. Harmon v. State, 167 S.W.3d 610,

614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Similarly, eyewitness

identification is not required for a conviction. Green v. State, 124 S.W.3d 789, 792

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (eyewitness identification is not

necessary to identify perpetrator). The lack of eyewitness testimony and physical

evidence were factors for the jury to consider in weighing the evidence, and we

defer to the jury’s resolution of these issues. See McGregor, 394 S.W.3d at 110.

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

that a rational juror could have found that during the course of committing a

burglary, Arzate intentionally or knowingly caused Guillermo’s death or intended

to cause his death and committed an act clearly dangerous to human life that

caused his death. Accordingly, we hold the evidence was legally sufficient to


                                        10
support the judgment. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.

1994) (“Evidence of flight or escape is admissible as a circumstance from which an

inference of guilt may be drawn.”); McInturf v. State, 544 S.W.2d 417, 419 (Tex.

Crim App. 1976) (holding voice identification is direct evidence, which may

constitute sufficient basis for conviction, and testimony about voice identification

is question of fact for jury); Kesaria v. State, 148 S.W.3d 634, 640–41 (Tex.

App.—Houston [14th Dist.] 2004) (holding evidence was sufficient to establish

defendant’s identity to support burglary of habitation conviction where victims

unequivocally identified defendant as man who burglarized home in part because

they recognized his voice), aff’d, 189 S.W.3d 279 (Tex. Crim. App. 2006).

      We overrule Arzate’s sole point of error.

                                   Conclusion

      We affirm the trial court’s judgment.



                                                          Rebeca Huddle
                                                          Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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