Opinion issued April 4, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-11-00094-CR
                            ———————————
                       FERMIN ZEPEDA, JR., Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 176th District Court
                            Harris County, Texas
                        Trial Court Case No. 1255373



                          MEMORANDUM OPINION

      A jury convicted appellant, Fermin Zepeda, Jr., of murder, and the trial court

assessed punishment at thirty years’ confinement. In his sole issue, appellant

argues that the evidence was legally insufficient to support his conviction.
      We affirm.

                                    Background

      On April 18, 2008, appellant and the complainant, Edward “Eddie”

Castaneda, and two other, unidentified men got in a fight. Castaneda was stabbed

during the fight and was taken to Ben Taub Hospital where doctors performed

surgery to repair damage to his heart. Castaneda survived the surgery, but, due to

oxygen deprivation, he suffered brain damage and lived in a vegetative state until

his death from pneumonia in 2010.          Appellant was indicted for murder in

Castaneda’s death. The indictment alleged that appellant caused Castaneda’s death

“by stabbing the complainant with a deadly weapon, namely a knife.”

      At trial, Castaneda’s friend, Patricia Castaneda, testified regarding the events

surrounding the fight on April 18, 2008. Patricia testified that she met Castaneda,

at a bar that night. Castaneda had an argument with his girlfriend, so he and

Patricia decided to go to another bar. As they were leaving, appellant overheard

Castaneda complaining about his girlfriend and her friend, Maria. Patricia testified

that she recognized appellant as someone she had seen around the bar, but she did

not know his name at that time.

      She testified that appellant asked Castaneda, “Are you talking about my

sister?” Castaneda told appellant that he was not, but “from there, it just escalated,

the argument.”     Patricia stated that appellant “went towards [Castaneda] and


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started hitting on him and just started a big, old fight.” Patricia called for help

from the bar, and, when no one came, she started screaming.              Two other,

unidentified men “jumped in” to the fight. Patricia testified that, at that point,

appellant and the two men were both hitting and kicking Castaneda and “had him

on the ground.” Patricia stated that the fight broke up once people from the bar

came out to see what was happening.

      Patricia testified that, after the fight broke up, “everybody kind of scattered”

except for a group of people around Castaneda. She heard someone say that

Castaneda had been stabbed, and “there was somebody trying to stop the bleeding

or, you know, hold pressure on the wound and stuff at that point.” Patricia stated

that she did not see a knife or any other weapon during the fight, but she also

testified that she had been focused on getting help and had “stopped paying

attention to the fight for a little bit.” Patricia later identified appellant from a

police photo spread.

      Castaneda’s cousin, Edelmiro Castaneda, was also at the bar that night and

testified at trial. Edelmiro stated that he had had a few beers and played pool with

Castaneda, and then he decided to step outside to smoke a cigarette. While he was

outside smoking, Castaneda also walked out and told Edelmiro that he was going

to leave the bar. The next thing Edelmiro saw was Castaneda fighting with three

other men, one of whom Edelmiro identified as appellant. Edelmiro stated that he

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did not see the beginning of the fight, but he saw the men “punching at

[Castaneda].” Edelmiro testified that Castaneda “came around the truck and fell

there in front of us, and—well somebody opened up his shirt and—because it

looked like he stopped breathing. They opened his shirt, is when he had the stab

wounds.”

      Edelmiro stated that when Castaneda fell to the ground near him, appellant

was running after him. Edelmiro saw that appellant had a knife in his hand, and he

stated that appellant threatened him with the knife and that appellant “was like,

‘Hey, you want some, too?’” The three men, including appellant, tried to leave in

their truck, so Edelmiro chased them “around to the backside of the bar” and threw

something at their vehicle as they drove away. Edelmiro testified that he did not

see either of the other unidentified men with a weapon and that, to his knowledge,

Castaneda did not have a knife or weapon either.

      In addition to the testimony of several officers and the crime scene

investigators involved in the investigation of the case, the State presented the

testimony of Dr. Merrill Hines, who performed Castaneda’s autopsy. Dr. Hines

testified that, as part of the autopsy, he examined the operative report regarding

Castaneda’s surgery on April 18, 2008.       The report indicated that Castaneda

received a stab wound to the left chest, became unresponsive upon arrival at the

hospital, and was immediately taken to surgery to repair an injury to his heart. The

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report further stated that Castaneda’s tissues, including his brain, were deprived of

adequate blood and oxygen due to excessive blood loss from the stab wound and

the improper functioning of his injured heart, which resulted in brain damage and

Castaneda’s living in a persistent vegetative state.

      Dr. Hines testified that, at the time he performed the autopsy on January 14,

2010, Castaneda appeared “very undernourished,” had a feeding tube, and had a

tracheostomy site “where a breathing tube may have been at some time, as well as

the characteristic contractures that somebody in a persistent vegetative state would

often demonstrate.” Castaneda’s heart still contained the sutures that were placed

there during the repair of the injury from his stabbing in April 2008. Dr. Hines

testified that the injuries to Castaneda’s heart were consistent with being stabbed in

the heart with a knife; that, in his experience, a knife is a deadly weapon; and that

Castaneda died as a result of the stab wound to his chest and the associated injury

to his heart. Dr. Hines testified that there was “a clear chain of events connecting

[Castaneda’s] eventual death and the injuries that he sustained in 2008.”

Castaneda’s brain was deprived of oxygen because of the stab wound, which

caused his vegetative state, and he eventually “succumbed to the complications

commonly seen with that sort of state; in this case, pneumonia.”           Dr. Hines

testified that “the stab wound killed” Castaneda and, thus, was a homicide.




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      The jury found appellant guilty, and the trial court assessed his punishment

at thirty years’ confinement. This appeal followed.

                                Legal Sufficiency

      In his sole issue, appellant argues that the evidence was legally insufficient

to support his conviction. He argues that the evidence was insufficient to show

that he was the person who stabbed Castaneda. He further argues that there was no

evidence regarding the type of knife Edelmiro saw him holding. We construe the

latter as a complaint that the evidence was insufficient to support an element

alleged in the indictment—that appellant used a “deadly weapon, namely a knife”

in committing the murder.

A.    Standard of Review

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

light most favorable to the verdict to determine whether any rational factfinder

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

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Brooks, 323 S.W.3d at 899.

Circumstantial evidence is as probative as direct evidence in establishing guilt and


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may alone be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). “Each fact need not point directly and independently to the

guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id. So long as “the verdict

is supported by a reasonable inference, it is within the province of the factfinder to

choose which inference is most reasonable.” Laster v. State, 275 S.W.3d 512, 523

(Tex. Crim. App. 2009).

      We may not re-evaluate the weight and credibility of the evidence or

substitute our judgment for that of the fact finder. 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. Lancon v. State, 253 S.W.3d 699, 705 (Tex.

Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the

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

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record

supports conflicting inferences, we presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination.”).

      To convict appellant of murder, the State had to prove, beyond a reasonable

doubt, that appellant (1) intentionally or knowingly caused Castaneda’s death or

(2) intended to cause serious bodily injury and committed an act clearly dangerous




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to human life that caused Castaneda’s death.          See TEX. PENAL CODE ANN.

§ 19.02(b)(1)–(2) (Vernon 2011).

B.    Identity

      Appellant argues that the evidence was insufficient to support his conviction

because the testimony only showed that he was present and involved in a fight, but

no one saw him “either stab the complainant or have[] a knife in his hand during

the fight.” However, such direct evidence is not required. As with any other

element required to establish an appellant’s guilt, identity may be proved by direct

or circumstantial evidence, or by inferences. See Hooper, 214 S.W.3d at 13; see

also Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d)

(holding that identity may be proven by direct or circumstantial evidence, or even

by inferences).

      Here, Patricia testified that she saw appellant and two other men fighting

Castaneda and that, immediately after appellant ran away, she realized that

Castaneda had been stabbed. Edelmiro also testified that he saw appellant and two

men fighting Castaneda. When Castaneda fell to the ground in front of him,

Edelmiro saw appellant following Castaneda and holding a knife.              Edelmiro

testified that appellant threatened him with the knife before getting into a vehicle to

leave the bar. Edelmiro further testified that, following his collapse, Castaneda

appeared to stop breathing, so someone opened his shirt and that was when


                                          8
Edelmiro realized Castaneda had been stabbed.          Patricia and Edelmiro both

identified appellant as the person who had fought with Castaneda, and Edelmiro

identified appellant as the only person on the scene with a weapon.

      Thus, the evidence was sufficient to support the jury’s conclusion that

appellant was the person who stabbed Castaneda. See Hooper, 214 S.W.3d at 13;

Roberson, 16 S.W.3d at 167.

C.    Deadly Weapon

      Appellant also challenges the sufficiency of the evidence to establish that he

used a deadly weapon, namely a knife, in Castaneda’s murder. He argues that

there was “no evidence whatever describing the knife that Edelmiro Castaneda

claims he saw.     There was no evidence that the knife that was seen bore

bloodstains or was of a size and type such that it was even possible for that

particular knife to have caused the injuries that complainant sustained.”

      A deadly weapon is anything manifestly designed, made, or adapted for the

purpose of inflicting death or serious bodily injury or anything that in the manner

of its use or intended use is capable of causing death or serious bodily injury. TEX.

PENAL CODE ANN. § 1.07(a)(17) (Vernon Supp. 2012). Thus, “[a]n object is a

deadly weapon by usage if ‘in the manner of its use or intended use,’ the object is

‘capable of causing death or serious bodily injury.’” Tucker v. State, 274 S.W.3d

688, 691 (Tex. Crim. App. 2008); see also Thomas v. State, 821 S.W.2d 616, 620


                                          9
(Tex. Crim. App. 1991) (holding that knife is not deadly weapon per se, but it can

be deadly weapon if actor intends to or actually uses object to cause death or

serious bodily injury). “Even without expert testimony or a description of the

weapon, the injuries suffered by the victim can by themselves be a sufficient basis

for inferring that a deadly weapon was used.” Tucker, 274 S.W.3d at 691–92.

      Here, Patricia testified that appellant instigated a fight with Castaneda.

Patricia and Edelmiro both observed appellant and two other men assaulting

Castaneda.   Edelmiro testified that he realized after the fight broke up that

Castaneda had been stabbed, and he saw appellant, and only appellant, holding a

knife. Dr. Hines testified that Castaneda died as a result of his stab wound, which

caused an injury to his heart and excessive blood loss. In the context of describing

Castaneda’s injury, Dr. Hines further opined that a knife is a deadly weapon.

Thus, the nature of Castaneda’s injury supported the jury’s inference that appellant

used a deadly weapon. See id.

      We overrule appellant’s sole point of error.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

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




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