                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 BRIAN ENGLETON,                                 §
                                                                 No. 08-13-00077-CR
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                                  120th District Court
 THE STATE OF TEXAS,                             §
                                                               of El Paso County, Texas
                              Appellee.          §
                                                                 (TC#20110D03822)
                                                 §


                                           OPINION

       Appellant Brian Engleton was convicted of murdering his wife, Deidra Engleton, and

sentenced to life in prison. On appeal, Engleton contends the trial court erred in refusing to

suppress the recorded custodial statement he gave to the police and an oral statement he gave to the

media as he was being led to the county jail for booking. Engleton also asserts the evidence is

insufficient to show he was the person responsible for his wife’s murder. We affirm.

                                  FACTUAL BACKGROUND

       Deidra Engleton was murdered on the morning of June 16, 2011. That morning Deidra’s

sister was speaking to Deidra on the telephone when she heard Brian Engleton’s voice in the

background telling Deidra to get in the car and Deidra responding, “I’m not going anywhere with
you.” She then heard Deidra telling Engleton to give her cell phone back, sounds of a scuffle, and

then the call was disconnected. She tried to call Deidra back twice, but the calls went to

voicemail. About this same time, Demetrius Blakley was leaving his nearby apartment, when he

heard a woman screaming.        As he was driving away from his apartment, he again heard

screaming. Blakley saw a woman lying on the ground on her stomach and a man, whom he

identified as Engleton, standing over her. Blakley stopped the car, got out, and asked Engleton if

everything was okay; Engleton responded “Excuse me?” with his hands raised. Blakley saw

Engleton was holding a bloody knife in his hand. Engleton then immediately left the scene in a

white car that was parked nearby. Blakley ran over to the woman, but she was non-responsive

and “full of blood.” Blakley admitted at trial that he did not actually see Engleton stab Deidra,

and that his observation of the incident lasted only 21 seconds.

       Blakley tried to call the police using his cell phone, but could not unlock the phone because

he was shaking so badly; instead he drove to a nearby police station. There, Blakley reported the

attack to Officer Heriberto Limas. Officer Limas testified that Blakley walked into the station

and told him: “You need to come with me. He stabbed her. He’s standing over her with a

bloody knife.”

       Officer Mario Yanez responded to the call regarding the stabbing, and immediately went to

the crime scene, arriving within a few minutes after the incident. He observed Deidra lying face

down, unconscious, in a large pool of blood. She had no pulse. Deidra had suffered 32 stab

wounds from a knife, and eventually died from her wounds. The knife was found underneath

Deidra’s hands. DNA testing determined that Deidra’s blood was on the knife. The medical

examiner testified that the knife, which had a black handle, could have caused Deidra’s injuries.


                                                 2
The medical examiner also testified that the person who attacked Deidra likely had Deidra’s blood

on him. DNA testing determined that a blood stain found on Engleton’s right shoe was Deidra’s

blood.

         Officer Yanez used the information on Deidra’s driver’s license to identify her vehicle as a

white Hyundai Sonata with license plate number HPF-340. Yanez also identified the vehicle

Engleton drove as a 2008 Jeep Grand Cherokee, which was found still parked across the street

from the murder scene. The next day, Deidra’s white Hyundai Sonata was discovered in a truck

stop parking lot. Another license plate, number FJX-255, had been attached to the rear of

Deidra’s vehicle. The evidence showed that the plates had been switched with those of another

vehicle that had been parked only a few minutes’ drive from the murder scene.

         A redacted version of Engleton’s custodial interview was played to the jury. During his

custodial interview, Engleton stated that Deidra was having an affair with a military man named

“Moe,” and that he wanted to report the affair to the military so that Moe would be terminated.

Engleton admitted that on the day of the murder, he had gone to see Deidra to convince her to take

him to see Moe. He admitted that they fought and struggled when he attempted to take Deidra’s

cell phone away from her because he believed it contained Moe’s telephone number. Engleton

also admitted that the knife found by the police was a kitchen knife with a black handle that he kept

in his Jeep with his tools. Engleton had a key to Deidra’s car, and he left the scene in her car. He

drove around for hours. When asked why, Engleton stated, “I realized what I did....” Engleton

left the car at the truck stop where he spent the night. Engleton said he had no money and could

not work because Deidra had kicked him out of the house where his business was. Engleton

stated, “[W]hat else could I do? … [S]he perpetrated all of this stuff using the law. … I got pushed


                                                  3
up against the wall.” When asked whether he had stabbed Deidra, Engleton refused to answer.

When asked whether he thought it was right that Deidra had been stabbed multiple times in the

neck, Engleton asked to end the interview, and the interview was terminated.

         After his custodial interview, Engleton was transported to the county jail, where he was

questioned by the news media as he was being escorted to the jail entrance. The trial court

admitted a redacted video of Engleton’s statement to the news media, in which Engleton stated:

                  I just want to say, her mom, her sister, her friend, Carol, the guy she
                  was having an affair with, all of them are responsible for this. They
                  sat around and did nothing, and let her perpetrate things against me,
                  so.

                                                 DISCUSSION

                              Engleton’s Custodial Statement to the Police

         At trial, Engleton sought to suppress the recording of his custodial interview with the

police. In his first two issues, Engleton contends the trial court erred in denying his motion to

suppress because he had previously invoked his rights to counsel and to contact his consulate and

his subsequent waiver of those rights was not voluntary, thereby prohibiting admission of his

custodial statement under Article 38.22 of the Code of Criminal Procedure. 1                               Engleton

specifically contends that after invoking his rights he was never allowed to contact an attorney or

his consulate, and that therefore, even though he then initiated further communication with the

police, his subsequent waiver of his rights could not be considered voluntary.

                                    Factual and Procedural Background


1
  Article 38.22 establishes procedural safeguards for securing the privilege against self-incrimination. TEX. CODE
CRIM. PROC. ANN. art. 38.22 (West 2005). It provides that no oral statement of an accused made as a result of a
custodial interrogation is admissible against the accused in a criminal proceeding unless (1) the statement was
recorded, and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly,
intelligently, and voluntarily waived those rights. Id. at 38.22, § 3.
                                                          4
       The trial court held a Jackson v. Denno hearing to determine whether to suppress

Engleton’s custodial statement to the police. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,

12 L.Ed.2d 908 (1964). The evidence showed that around 3:30 p.m. on June 17, 2011, the day

Engleton was arrested, he met with Detectives Pete Lozano and Charles Romo at the El Paso

Police Department’s Crimes Against Persons Office interview room.               Detective Lozano

explained to Engleton that he had been arrested for murder and read Engleton his Miranda rights.

Engleton stated he did not want to talk, but instead wanted to get representation and talk to his

consulate. Detective Lozano terminated the interview and did not ask Engleton any further

questions. Engleton was then placed in a holding cell at the Crimes Against Persons Office.

       Shortly thereafter, Engleton flagged down Detective Michael Lara, who was using a

printer near the holding cell, and told him he wished to speak to Detectives Lozano and Romo.

Detective Lara testified he had not said anything or made any gestures to attract Engleton’s

attention. Nor had Sergeant Alfonso Cardenas, the supervisor in charge of the investigation,

instructed his detectives to say or do anything to get Engleton to make a statement. Lara relayed

Engleton’s message to Detective Lozano that Engleton wanted to speak to him. Only about 15

minutes or a “few minutes” passed between Engleton’s initial refusal to talk and his subsequent

decision to tell his story to Detective Lozano. Detective Lozano confirmed with Engleton that he

now wanted to speak to him, and Engleton expressed his desire to tell his side of the story.

       Engleton was escorted back to the interview room, and a second interview occurred around

4 p.m. This second interview was recorded by Detective Lozano. As shown by the recording,

Detective Lozano first confirmed that Engleton had initiated the second interview and that he now

wanted to tell his story, and then advised Engleton of his Miranda rights by reading each statement


                                                5
from the Miranda card. Engleton stated he understood each of his rights and was waiving those

rights, and he signed, initialed, and dated the Miranda card, which noted that he understood and

was waiving his rights. At no time did Detective Lozano threaten or coerce Engleton, place him

under duress, or deny him any necessities while he was giving the statment. Engleton was

cooperative at the start of the interview and became emotional during the interview, crying

periodically. After Engleton had provided numerous significant details during the interview, he

asked that the interview be terminated, and Detective Lozano complied, ending the interview at

4:47 p.m.

        The trial court entered written findings of fact and conclusions of law. See TEX. CODE

CRIM. PROC. ANN. art. 38.22, § 6 (West 2005). The trial court made numerous findings, all in

conformance with the evidence presented at the suppression hearing, and concluded that Engleton

had invoked his right to counsel and to speak with his consulate when he first refused to provide a

statement, but that his invocation “was not unambiguous and unequivocal as he subsequently

asked to speak with detectives.” The court also concluded that Engleton was then again provided

with his Miranda rights at the beginning of the recorded statement, including his consular rights,

right to counsel, and right to remain silent, and that Engleton voluntarily, intelligently, and

knowingly waived those rights by providing the statement after acknowledging his understanding

of those rights.

                                       Standard of Review

        A trial court’s ruling at a suppression hearing is reviewed for an abuse of

discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). In reviewing the

trial court’s decision, an appellate court must view the evidence in the light most favorable to the


                                                 6
trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). We afford

almost total deference to a trial court’s determination of historical facts. See Montanez v. State,

195 S.W.3d 101, 109 (Tex.Crim.App. 2006). We afford the same deference to the trial court’s

resolution of mixed questions of law and fact that turn on an evaluation of credibility and

demeanor, and review de novo only the court’s resolution of mixed questions not falling within

this category. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial court’s

ruling will be upheld if it is reasonably supported by the record and is correct under any theory of

law applicable to the case. Ramos, 245 S.W.3d at 418. A determination whether a confession

was voluntarily rendered is analyzed by examining the totality of the circumstances. Arizona v.

Fulminante, 499 U.S. 279, 285–86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see Delao v. State,

235 S.W.3d 235, 239 (Tex.Crim.App. 2007), cert denied, 552 U.S. 1168 (2008).


                                                     Analysis

        Engleton recognizes that even after an accused has invoked his right to counsel, a custodial

interrogation can resume if the accused initiates further communication with the police.2 He

contends, however, that after he invoked his rights to counsel and to contact his consulate, his

request “was essentially ignored.” He notes that Detective Lozano immediately terminated the

interview and neither advised him that he would be given the opportunity to speak with an

attorney, nor provided him with the means to contact an attorney or his consulate. Lozano simply

terminated the conversation without explanation. Engleton contends he “had every reason to

believe that his request was not being honored,” and that under these circumstances, his request to

2
  Engleton also recognizes that a failure to follow the Vienna Convention, which includes the right to contact one’s
consulate, does not authorize suppression of a confession or statement to the police, but can only be considered as a
factor in assessing the voluntariness of a custodial statement. See Sierra v. State, 218 S.W.3d 85, 87 (Tex.Crim.App.
2007).
                                                         7
reinstate contact with the detectives cannot be seen as a voluntary decision to waive his rights, but

rather “a realization that the rights that were explained to him are meaningless and if he desires to

defend himself, he must do so on his own.” We conclude that Engleton’s subsequent waiver of

his rights was effective, voluntary, and in compliance with Article 38.22.

       In Edwards v. Arizona, the Supreme Court held that once an accused has expressed his

desire to deal with the police only through counsel, all custodial interrogation must cease unless he

initiates further communication, exchanges, or conversation with the police. 451 U.S. 477,

484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also Cross v. State, 144 S.W.3d 521, 523-24

(Tex.Crim.App. 2004). Edwards set out a bright-line rule “designed to protect an accused in

police custody from being badgered by police officers[.]” Oregon v. Bradshaw, 462 U.S. 1039,

1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (discussing the purpose of the Edwards rule). A

suspect’s unwillingness to answer questions without the advice of counsel indicates that he does

not feel sufficiently comfortable with the pressures of custodial interrogation to respond to police

inquiries without an attorney’s assistance. Cross, 144 S.W.3d at 526; see Arizona v. Roberson,

486 U.S. 675, 684, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (“Roberson’s unwillingness to answer

any questions without the advice of counsel, without limiting his request for counsel, indicated that

he did not feel sufficiently comfortable with the pressures of custodial interrogation to answer

questions without an attorney.”).

       But, the Supreme Court has also explicitly stated that a suspect is not “powerless to

countermand his election” to speak only with the assistance of counsel. Edwards, 451 U.S. at

485; Cross, 144 S.W.3d at 526. Under Edwards, the “discomfort” in dealing with the police

without the guiding hand of counsel is presumed to persist unless the suspect himself initiates


                                                 8
further conversation about the investigation. Cross, 144 S.W.3d at 526; see Roberson, 486 U.S.

at 684. Because the Edwards rule was devised to prevent police from badgering a suspect into

giving up his right to counsel, compliance with that rule, coupled with a suspect’s initiation of

further communications about the investigation, plus a voluntary waiver of his previously invoked

right to counsel, fully satisfies the rule, and its protections then fall away. Cross, 144 S.W.3d at

524, 528.

         In Oregon v. Bradshaw,3 the Supreme Court established a two-step procedure to determine

whether a suspect has waived his previously invoked right to counsel. 462 U.S. at 1044-45;

Cross, 144 S.W.3d at 526-27. The first step requires proof that the suspect himself initiates

further communication with the authorities after invoking the right to counsel. The second step

requires proof that, after he reinitiates communication with the authorities, the suspect validly

waives the right to counsel. 462 U.S. at 1045-46; Cross, 144 S.W.3d at 527. Once this two-step

waiver requirement is shown, the suspect has countermanded his original election to speak to

authorities only with the assistance of counsel, and the Edwards rule is fully satisfied and drops out

of consideration entirely. Cross, 144 S.W.3d at 526-27; see McCarthy v. State, 65 S.W.3d 47, 51

n.6 (Tex.Crim.App. 2001) (“Of course, if the arrestee reinitiates the conversation, the Edwards

rule is satisfied.”).

         The record here is clear that all the requirements were met. There was initial compliance

with the Edwards rule – after Engleton invoked his right to counsel and to contact his consulate,


3
  In Cross, the Court of Criminal Appeals recognized that although Oregon v. Bradshaw was a plurality opinion, the
plurality and dissent agreed that if a suspect “initiates” further communications with the police and demonstrates a
willingness and desire to discuss the subject matter of the investigation with authorities, the Edwards rule is satisfied.
Cross, 144 S.W.3d at 527 n.15. The dispute between the plurality and the dissent centered only on the application of
that standard to the specific facts of the case. Id.

                                                            9
the detectives immediately terminated the initial interview. There was initiation of further

communication by the accused – a “few minutes” or “15 minutes” after invoking his rights,

Engleton, on his own and without any prompting from the police, requested to speak to the

detectives to tell his story. And, there was a voluntary waiver of the previously invoked rights –

the totality of the circumstances surrounding the interrogation shows that Engleton’s subsequent

waiver was voluntary and resulted from a free and deliberate choice without intimidation,

coercion, or deception. See Joseph v. State, 309 S.W.3d 20, 25 (Tex.Crim.App. 2010) (the

relinquishment of the right must be voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception).

       The recording of the interview demonstrates that Engleton waived his rights and provided

the statement without threats, coercion, or promises of anything in return. The recording shows

Engleton confirming that he had reinitiated contact with the detectives. It shows that immediately

after being warned once again by Detective Lozano that he had the rights to remain silent, to

counsel, and to contact his consulate, Engleton acknowledged he understood his rights and he was

waiving those rights. Engleton then willingly participated in the interview. At no time during

the interview did Engleton request an attorney or question when he could contact an attorney or his

consulate pursuant to his original request. When Engleton asked that the interview be stopped, it

was terminated immediately. The recording shows no evidence of intimidation or coercion or

that Engleton appeared to be under duress or unduly distraught. The recording shows that the

detectives did not coerce Engleton in any way and that at no time did they promise Engleton

anything in exchange for giving a statement. In sum, the record shows full compliance with the




                                                10
dictates of Edwards v. Arizona, Oregon v. Bradshaw, Cross v. State, and Article 38.22 for

admission of the custodial statement.

       An accused is already well-protected from police badgering by the existing rules, which

require initial compliance with Edwards, a finding that the accused initiated further

communications with law enforcement, plus a finding that the accused voluntarily waived his

previously invoked right to counsel. We refuse Engleton’s invitation to graft on any additional

requirements before an accused’s initiation of further communication can lead to a voluntary

waiver of previously invoked rights. We also reject Engelton’s contentions that the passage of 15

minutes necessarily compelled the conclusion that Engleton believed his initial requests had been

ignored and that the State had the burden to disprove Engleton subjectively believed he had no

choice but to waive his rights. The objective evidence shows the opposite. Engleton initiated

further communications with the police on his own volition because he wanted to tell his side of

the story, Engleton then affirmatively waived his rights, and not once during his statement did

Engleton discuss or question if or when he could contact an attorney or his consulate pursuant to

his original request. The State met its burden by presenting sufficient evidence to allow the trial

court in its discretion to determine that the police properly terminated the initial interview when

Engleton asserted his rights, that Engleton initiated further communications with the police, and

that he then voluntarily waived his previously invoked rights.             Contrary to Engleton’s

contentions, under the existing law and the totality of the circumstances, the State was not required

to provide additional explanations or assurances to Engleton concerning his rights to counsel or to

contact his consulate in order for his subsequent waiver of his rights to be considered voluntary.




                                                 11
        We also do not place any weight on Engleton’s argument that the trial court erred in

concluding that his initial invocation of his rights “was not unambiguous and unequivocal as he

subsequently asked to speak with detectives.” The trial court’s ruling on a motion to suppress

will be upheld if it is reasonably supported by the record and is correct under any theory of law

applicable to the case. Ramos, 245 S.W.3d at 418. Whatever the trial court meant to conclude, it

properly denied the motion to suppress because the record shows full compliance with the dictates

of Edwards v. Arizona, Oregon v. Bradshaw, Cross v. State, and Article 38.22, all of which

constitute the law applicable to the case. Issues One and Two are overruled.

                                   Engleton’s Statement to the Media

        In Issue Three, Engleton contends the trial court erred in refusing to suppress his oral

statement to the local media because their questions, under the circumstances, were the “functional

equivalent” of a custodial interrogation. We disagree and conclude the trial court did not abuse its

discretion in denying Engleton’s motion to suppress his statement to the media.4

                                   Factual and Procedural Background

        The facts surrounding Engleton’s statement to the media are not in dispute. After giving

his custodial statement to the police, Engleton was taken to the county jail to be booked. The

detectives parked the police vehicle in front of the jail and escorted Engleton around the block to

the private entrance. As Engleton was being escorted to the private entrance, the local news

media questioned Engleton, and he responded to those questions. There was no police policy

governing where to park at the jail, and no one at the police department suggested where to park so

as to allow media access to Engleton. The trial court denied Engleton’s motion to suppress and


4
  We apply the same standard of review as we applied in reviewing the trial court’s refusal to suppress Engleton’s
custodial statement to the police.
                                                       12
admitted into evidence a redacted video of Engleton’s statement, concluding that Engleton’s

statement to the media was not the product of custodial interrogation by any law enforcement

agency.

                                             Analysis

       Engleton contends the detectives had the option to park their vehicle at the private entrance

to the county jail so that the media would not have access to question him and that the detectives

should have known that allowing media access was reasonably likely to elicit an incriminating

response from him. He argues the questions from the media were therefore “the functional

equivalent” of a custodial interrogation, and his statement was admitted in violation of Article

38.22. Engleton concedes that Article 38.22 does not preclude the admission “of a statement that

does not stem from custodial interrogation[.]” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5 (West

2005). But, Engleton argues that allowing the media to question him “was the functional

equivalent of interrogation by the police much like allowing a third party into the interrogation

room to pose questions to a suspect.”          Cf. Escamilla v. State, 143 S.W.3d 814, 824

(Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005) (discussing the typical state agent

“scenario where the police employ an informant to deliberately elicit incriminating statements

from an in-custody defendant solely for the purpose of helping the police gather evidence against

the defendant”). The State contends that because there was no evidence the media were acting as

state agents in posing their questions, Engleton’s statement was admissible because it was not the

product of a custodial interrogation. We agree with the State.

       “Custodial interrogation” under Article 38.22 means “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his


                                                13
freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,

1612, 16 L.Ed.2d 694 (1966) (emphasis added); see Bass v. State, 723 S.W.2d 687, 690-91

(Tex.Crim.App. 1986) (“custodial interrogation” as used in Article 38.22 was intended to be

construed consistently with its meaning under the Fifth Amendment of the United States

Constitution).   Article 38.22 does not apply to statements given to non-law enforcement

personnel unless they are acting as state agents.        Paez v. State, 681 S.W.2d 34, 36-37

(Tex.Crim.App. 1984).

       Non-law enforcement personnel are acting as state agents only when an agreement exists

between them and law enforcement at the time of the elicitation of the statement. Broadnax v.

State, No. AP-76207, 2011 WL 6225399, at *10 (Tex.Crim.App. Dec. 14, 2011) (not designated

for publication), cert. denied, 133 S.Ct. 103 (2012); Escamilla, 143 S.W.3d at 824.         This

state-agent requirement has been applied to the media: reporters must be acting under an

agreement with law enforcement before their questioning can be considered a custodial

interrogation and the accused’s statements are subject to Article 38.22’s requirements for

admissibility. See Broadnax, 2011 WL 6225399, at *10 (trial court did not err in admitting

defendant’s numerous interviews with television news reporters because there was no evidence of

any agreement between the reporters and law enforcement); Escamilla, 143 S.W.3d at 824

(television reporter who interviewed defendant in jail was not a state agent because there was no

evidence of an agreement between the reporter and law enforcement at the time); Brown v. State,

No. 03-95-00513-CR, 1996 WL 530010, at *3 (Tex.App. – Austin Sept. 18, 1996, no pet.) (Article

38.22 did not apply because it “applies only to statements obtained as a result of custodial

interrogation,” and the “reporter was not shown to be acting as an agent of the police”).


                                                14
        There is no evidence here that the media were acting as state agents under an agreement

with law enforcement at the time they posed their questions to Engleton as he was being escorted

to jail. Thus, the trial court properly concluded that Engleton’s statement to the media was not the

product of a custodial interrogation and was admissible.

        Engleton’s “functional equivalent” argument fails because it is not based on evidence of

any agreement or collusion between the media and law enforcement; rather it is based solely on the

grounds that the detectives could have parked so as to prevent media access and allegedly should

have known that Engleton would respond to the media’s questions. This, however, is insufficient

to transform the media into state agents.

        A comparison with other cases is instructive in this regard. In Escamilla, the evidence

showed that the police permitted the reporter to interview the defendant in jail after the defendant

had consented to the interview in response to the reporter’s request. 143 S.W.3d at 822. The

defendant claimed the reporter became a state agent when, after the defendant had consented to the

interview but before the interview took place, a police officer called the reporter and, in an effort to

reassure the reporter he did not intend to block the interview, explained to the reporter “I want you

to get him to talk” because “[h]e won’t talk to me.” Id. at 822-23. The Court of Criminal

Appeals held that the officer’s statement did not constitute an offer for the reporter to act as a state

agent, and thus the defendant’s statement to the reporter was not the product of a custodial

interrogation. Id. at 824. Likewise, in State v. Hernandez, a sheriff at the jail passed a note from

the reporter to the defendant with the reporter’s phone number and a request for a television

interview, and the defendant called the reporter and made incriminating statements. 842 S.W.2d

306, 309-10 (Tex.App. – San Antonio 1992, pet. ref’d). Despite the sheriff’s facilitation of the


                                                  15
interview, the reporter was held not to be an agent of the State. Id. at 315-16. Undermining

Engleton’s argument is that the conduct in both Escamilla and Hernandez was more suspect than

that of law enforcement in the present case, where there is no evidence of any contact or

facilitation between the police and the media, and yet the conduct in both Escamilla and

Hernandez was deemed not to have risen to the level of state agency. Issue Three is overruled.

                                   Sufficiency of the Evidence

       In Issue Four, Engleton contends the evidence was insufficient to prove that he was

responsible for Deidra’s murder. Engleton concedes there is evidence that he was present with

Deidra at or near the time she died, but argues there is no evidence that he was the person who

killed Deidra. We disagree. We conclude the evidence was sufficient to allow the jury to make

the reasonable inference that Engleton was the person who stabbed and murdered Deidra.

                                       Standard of Review

       In a legal sufficiency review, we consider all the evidence in the light most favorable to the

verdict, and the reasonable inferences that flow from it, to determine whether any rational jury

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, 61 L.Ed.2d 560 (1979); Brooks v. State, 323

S.W.3d 893, 895 (Tex.Crim.App. 2010). “If, given all of the evidence, a rational jury would

necessarily entertain a reasonable doubt as to the defendant’s guilt, the due process guarantee

requires that we reverse and order a judgment of acquittal.” Guevara v. State, 152 S.W.3d 45, 49

(Tex.Crim.App. 2004).

       In performing our sufficiency review, we do not re-evaluate the weight and credibility of

the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d


                                                16
735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131 (2000). We presume the fact finder

resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson,

443 U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). We determine

only whether the necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State,

214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). Each fact is not required to point directly and

independently to the guilt of the accused, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction. Id. at 13 (citing Johnson v. State, 871

S.W.2d 183, 186 (Tex.Crim.App. 1993)). Circumstantial evidence alone can be sufficient to

establish guilt. Guevara, 152 S.W.3d at 49.

                                             Analysis

       Identification of the defendant as the person who committed the offense charged is an

element of the offense the State must prove beyond a reasonable doubt. Rushing v. State, No.

08-05-00365-CR, 2007 WL 2405797, at *3 (Tex.App. – El Paso Aug. 23, 2007, pet. ref’d) (not

designated for publication) (citing Miller v. State, 667 S.W.2d 773, 775 (Tex.Crim.App. 1984));

see McCullen v. State, 372 S.W.2d 693, 695 (Tex.Crim.App. 1963) (the burden is on the State in

any criminal prosecution to prove beyond a reasonable doubt that the accused committed the

criminal act charged).     The identity of a perpetrator may be proven by either direct or

circumstantial evidence.    Tilford v. State, No. 08-09-00154-CR, 2011 WL 3273543, at *2

(Tex.App.–El Paso July 29, 2011, pet. ref’d) (not designated for publication); Rushing, 2007 WL

2405797, at *3.




                                                17
       Engleton concedes the State’s evidence clearly placed him with Deidra at or near the time

of her death, but argues the State failed to directly prove that he was the person who killed her. In

particular, Engleton argues that while the eyewitness Blakley saw him standing over or near

Deidra’s bleeding body with a bloody knife in his hand, Blakley admitted that he did not actually

see Engleton stab Deidra. Further, Blakley did not testify he saw Engleton discard the knife, and

the evidence showed the knife was found underneath Deidra’s body. Moreover, Engleton points

out that in his custodial statement and in his statement to the media, he never admitted to stabbing

Deidra. Engleton argues that his mere presence at the scene was not enough to prove guilt and

that there was insufficient evidence from which the jury could infer that he was the person who

killed Deidra with a knife. We disagree and conclude there was more than sufficient evidence

from which the jury could reasonably infer that Engleton was the person who stabbed and

murdered Deidra.

       While mere presence at the scene itself is not enough to sustain a conviction, the jury may

consider that fact in determining whether the defendant committed the offense. See Mohamad v.

State, No. 01-09-00383-CR, 2010 WL 2874150, at *3 (Tex.App. – Houston [1st Dist.] July 22,

2010, pet. ref’d) (mem. op.) (not designated for publication).          Further, there was strong

circumstantial evidence, beyond evidence of Engleton’s mere presence at the scene, that Engleton

was the person who murdered Deidra. Deidra’s sister, while on the phone with Deidra, heard

Engleton’s voice in the background, heard Deidra tell Engleton to return her cell phone to her,

heard the sounds of a scuffle, and then the call was then disconnected. Her subsequent attempts to

reach Deidra were unsuccessful. At the same time, Blakley heard screaming, and seconds later

saw Deidra lying on the ground with Engleton standing over her holding a bloody knife. From


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this evidence alone, the jury could have reasonably inferred that Engleton was the person who

stabbed Deidra. See Evans v. State, No. 01-09-00974-CR, 2011 WL 346430, at *2-3 (Tex.App.–

Houston [1st Dist.] Feb. 3, 2011, no pet.) (mem. op.) (not designated for publication) (evidence

was legally sufficient to establish defendant as the murderer where the eyewitness saw the

defendant and the victim together at the time he heard gunshots, even though the eyewitness never

saw the defendant with a gun).

       There was also additional circumstantial evidence of Engleton’s guilt. Engleton was the

last person to see Deidra alive, he had the opportunity to commit the crime, he had access to the

type of weapon used to stab Deidra – a kitchen knife with a black handle that Engleton kept in his

Jeep, and Deidra’s blood was found on his shoe. See Tilford, 2011 WL 3273543, at *5-6

(explaining that the opportunity to the commit the crime, the fact that the defendant was seen with

the victim and was the last person to see the victim alive, and that the defendant’s access to the type

of weapon used to kill the victim, in addition to other facts, were circumstances establishing

defendant’s guilt). Moreover, after Engleton was seen standing over Deidra’s body holding a

bloody knife, he immediately left the scene in Deidra’s car without calling for help.                A

defendant’s failure to call 911 or to notify anyone of the victim’s condition is circumstantial

evidence of guilt. See Clayton, 235 S.W.3d at 780-81.

       Further, Engleton had motive to commit the crime. Engleton explained in his custodial

interview that he blamed Deidra for having an affair, for perpetrating “all of this stuff using the

law,” that he “got pushed up against the wall,” and ultimately stated “what else could I do?” See

Clayton, 235 S.W.3d at 781 (motive “may be a circumstance that is indicative of guilt”); Evans,

2011 WL 346430, at *3; Reeves v. State, 969 S.W.2d 471, 479 (Tex.App. – Waco 1998, pet. ref’d)


                                                  19
(a rational jury could find beyond a reasonable doubt that the defendant killed victim despite

uncertainty in the means used or the precise cause of death because the defendant had the best

opportunity and motive for killing her since he was jealous of victim’s other intimate

relationships).

       Also, when confronted by Blakley, Engleton immediately left the scene in Deidra’s white

Hyundai, and not in his own Jeep Cherokee, which was parked nearby. Further, the license plates

on Deidra’s car were switched out with the plates of another vehicle that was parked nearby the

murder scene. Engleton’s flight from the scene and the switching of license plates demonstrated a

consciousness of guilt that provides additional circumstantial evidence from which the jury could

infer that Engleton murdered Deidra. Castaneda v. State, No. 08-10-00050-CR, 2011 WL

4490960, at *5 (Tex.App. – El Paso Sept. 28, 2011, pet. ref’d) (not designated for publication)

(any conduct on the part of a person accused of a crime subsequent to its commission that indicates

a consciousness of guilt may tend to prove that he committed the act with which he is charged);

Martin v. State, 151 S.W.3d 236, 245 n.8 (Tex.App. – Texarkana 2004, pet. ref’d) (defendant’s

consciousness of guilt shown by his flight from the scene); see also Clayton, 235 S.W.3d at 780 (“a

factfinder may draw an inference of guilt from the circumstance of flight”); Bigby v. State, 892

S.W.2d 864, 883 (Tex.Crim.App. 1994), cert. denied, 515 U.S. 1162 (1995) (same); Evans, 2011

WL 346430, at *3 (same).            Finally, as the State points out, the most damning

consciousness-of-guilt evidence came from Engleton himself when he admitted in his custodial

interview that he struggled with Deidra for her phone, then left the scene and drove around in

Deidra’s car for hours because “I realized what I did....” Clayton, 235 S.W.3d at 780; Evans,

2011 WL 346430, at *3; Castaneda, 2011 WL 4490960, at *5.


                                                20
       Engleton’s identity as the killer could be established through either direct or circumstantial

evidence. Tilford, 2011 WL 3273543, at *2; Rushing, 2007 WL 2405797, at *3. Further, each

fact was not required to point directly and independently to Engleton’s guilt, as long as the

cumulative force of all the incriminating circumstances was sufficient to support the conviction.

Hooper, 214 S.W.3d at 13. Given the cumulative force of Blakley’s testimony that immediately

after hearing screams he saw Engleton standing over Deidra’s body with a bloody knife, the

testimony that Deidra’s sister heard Engleton scuffling with Deidra over the phone, Engleton’s

knowledge of and access to the knife, his anger at Deidra over the extra-marital affair, Engleton’s

statement that he realized what he did, and evidence that Engleton fled the scene in Deidra’s car

with switched license plates, it was rational for the jury to infer that Engleton was the person who

stabbed Deidra to death. Viewing all the evidence in the light most favorable to the verdict, we

conclude the jury could have found beyond a reasonable doubt that Engleton was the person who

murdered Deidra. Issue Four is overruled.

                                         CONCLUSION

       The trial court’s judgment is affirmed.


                                              STEVEN L. HUGHES, Justice
March 20, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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