                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-19-00294-CR


                        LUCIO ZAVALA SIFUENTES, JR., APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 222nd District Court
                                    Deaf Smith County, Texas
                   Trial Court No. CR-18J-160, Honorable Roland Saul, Presiding

                                           August 7, 2020

                                 MEMORANDUM OPINION
                            Before PIRTLE and PARKER and DOSS, JJ.


       Appellant, Lucio Zavala Sifuentes, Jr., was convicted of attempted capital murder

following a jury trial.1       The jury assessed appellant’s punishment at forty years’

confinement in the Institutional Division of the Texas Department of Criminal Justice and

a $2,500 fine. By his sole issue, appellant challenges the sufficiency of the evidence

presented to support his conviction. We affirm the judgment of the trial court.




       1   TEX. PENAL CODE ANN. §§ 15.01(a) (West 2019), 19.03(a)(1) (West Supp. 2019).
                                         Background


       During the early morning hours of September 7, 2018, Hereford Police Officer

Andrew Johnston was on patrol near the local high school conducting building checks.

Officer Johnston observed appellant, a pedestrian, walking in the middle of the roadway

near the school. The officer stopped his patrol car and obtained appellant’s identification.

After explaining why he stopped appellant, the officer asked for appellant’s consent to

conduct a “pat down” to determine if appellant had any weapons. The officer instructed

appellant to interlock his hands on his head. Instead of complying with that request,

appellant fled. The officer pursued appellant and yelled at appellant to stop. As the officer

caught up with appellant, he deployed his taser. When appellant was hit by the taser, he

fell and a gun he was holding discharged.


       Officer Johnston testified that he heard a gunshot after he deployed the taser.

According to the officer, the gunshot was not fired in his direction. However, as the officer

approached appellant’s position, appellant rolled onto his back and Officer Johnston

heard a second gunshot in his direction, “right by [his] face.” The second gunshot was

aimed at him, but it missed to his left. Although appellant initially responded as if the taser

was properly attached, Officer Johnston believes only one of the taser prongs hit

appellant, rendering the taser ineffective based on how quickly appellant rolled over when

he hit the ground and fired the second shot. A scuffle between the officer and appellant

ensued. During the scuffle, Officer Johnston’s body cam was dislodged. The officer

pinned appellant’s hands to the ground, and he obtained possession of appellant’s gun.

Appellant separated himself from the officer. Then, Officer Johnston drew his service




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weapon and told appellant to get on the ground. Instead of complying with the officer’s

commands, appellant again escaped and fled the scene.


       Officer Brady Grunder responded to Officer Johnston’s radio call reporting “shots

fired.” However, by the time Officer Grunder arrived on the scene, appellant could not be

located.


       Officer Johnston recovered a .38 caliber Smith & Wesson revolver from the scene.

The weapon, a six-shot revolver, was identified as the gun that was taken from appellant

during the scuffle. Officer Johnston found two spent casings and four unspent rounds

inside the revolver.


       The State introduced a video recording from Officer Johnston’s patrol car and his

body cam video.        Officer Johnston identified two noises from these recordings as

gunshots. According to Officer Johnston, he is “100 percent” certain that appellant shot

at him during the incident in question. “Initially, I thought I got shot. In the split second I

realized I was still conscious; I started to fight and reach for [appellant’s] hands and try to

get [the gun] from him.” Officer Johnston testified that after the incident, he had ringing

in his left ear and pain in his left shoulder. He described the sensation as being similar

to that experienced when one fails to wear ear protection at a gun range.


       Appellant testified in his own defense. On the night of the encounter with Officer

Johnston, appellant claimed he was on his way to sell the revolver. He did not want the

officer to find the revolver when he was conducting the pat down so he ran. While he was

running from the officer, he found a place where he could dispose of the gun by throwing

it over a fence. Before he could do so however, he was struck by the taser between his

shoulder blades which caused him to “lock up.” The gun accidentally discharged after he
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was hit with the taser. Appellant stated Officer Johnston jumped on his back while he

was laying on the ground. According to appellant, he did not have possession of the

revolver after he hit the ground. Appellant denied firing the gun twice or firing it in Officer

Johnston’s direction. Appellant did not hear a second gun shot and maintained that he

did not “intentionally pull the trigger” to fire at the officer.


       A jury convicted appellant of attempted capital murder and sentenced him to forty

years’ confinement. Appellant timely filed this appeal.


                                             Analysis


       By his appeal, appellant presents a single issue. Appellant contends that the

evidence is insufficient to establish that he had the specific intent to kill Officer Johnston.


       The standard that we apply in determining whether the evidence is sufficient to

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

reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.

App. 2010). Under that standard, when assessing the sufficiency of the evidence to

support a criminal conviction, we consider all the evidence in the light most favorable to

the verdict and determine whether, based on that evidence and reasonable inferences to

be drawn therefrom, a rational trier of fact could have found the essential elements of the

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

at 912. The jury is the sole judge of the credibility of the witnesses and the weight to be

given to their testimonies, and we will not usurp this role by substituting our judgment for

that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We

also measure the sufficiency of the evidence against the elements of the offense as
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defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997).


       In this case, appellant was charged with attempted capital murder. The Penal

Code provides that a person commits the offense of murder if he intentionally or knowingly

causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019).

Murder becomes capital murder under certain circumstances, including when the person

murders a peace officer who is acting in the lawful discharge of his official duties and

whom the person knows to be a peace officer. Id. § 19.03(a)(1). An attempt to commit

an offense occurs when, with the specific intent to commit the offense, a person does an

act that amounts to “more than mere preparation that tends but fails to effect the

commission of the offense intended.” Id. § 15.01(a).


       To permit the jury to find appellant guilty of the attempted capital murder of Officer

Johnston, the State was required to prove beyond a reasonable doubt that, with the

specific intent to cause the death of Officer Johnston, while knowing that he was a peace

officer acting in the lawful discharge of an official duty, appellant, committed an act

amounting to more than mere preparation that tended but failed to effect the commission

of the offense of capital murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim.

App. 1984) (op. on reh’g) (“[A] specific intent to kill is a necessary element of attempted

murder.”); “[T]he specific intent to kill may be inferred from the use of a deadly weapon.”

Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); see also Godsey v. State,

719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986).


       Appellant does not challenge the sufficiency of the evidence to establish that

Officer Johnston was a peace officer who was acting in the lawful discharge of an official

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duty or that appellant was aware of this fact. Instead, appellant argues that the evidence

was insufficient to show that he intended to kill Officer Johnston.


       In this case, the record demonstrates that appellant fled from the officer with a

loaded revolver. Officer Johnston distinguished the first gunshot, which was directed

away from him, from the second one, which was fired in his direction to his left side. The

officer was 100 percent certain that he was shot at and he identified two sounds as

gunshots on his body cam audio. He alerted other officers to the threat indicating “shots

fired” on his police radio. Further, he experienced ringing in his left ear which supports

the officer’s testimony that he was in close proximity to a gun when it discharged. The

jury also heard testimony that a six-shot revolver was recovered at the scene. The

revolver had two spent casings inside the cylinder.


       Although appellant challenges the credibility of Officer Johnston’s testimony, the

trier of fact is the sole judge of the credibility of the witnesses and the weight to be given

their testimony. See Jackson, 443 U.S. at 326. As such, the jury is free to believe all,

some, or none of a witness’s testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008); Monreal v. State, 546 S.W.3d 718, 724-725 (Tex. App.—San Antonio

2018, pet. ref’d.).   Here, the jury was free to reject appellant’s claim that he was

incapacitated by the taser and that he did not fire a second shot or fire the gun in the

direction of Officer Johnston.


       The specific intent to kill may be inferred from the use of a deadly weapon, unless

in the manner of its use it is reasonably apparent that death could not result. Godsey,

719 S.W.2d at 580-81. Firing a revolver in the direction of an arresting officer under these

circumstances constitutes a manner of use in which death was a likely result. Viewing

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the evidence in the light most favorable to the verdict, we conclude that a rational jury

could have found beyond a reasonable doubt that appellant committed the offense of

attempted capital murder. Appellant’s sole issue is overruled.


                                      Conclusion


      Having overruled appellant’s issue, we affirm the judgment of the trial court.




                                                       Judy C. Parker
                                                          Justice


Do not publish.




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