Opinion filed August 28, 2015




                                      In The


        Eleventh Court of Appeals
                                    ____________

                                No. 11-13-00282-CR
                                     __________

                      JUAN L. BEJARANO, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 358th District Court
                                 Ector County, Texas
                          Trial Court Cause No. D-38,013


                      MEMORANDUM OPINION
      The jury convicted Juan L. Bejarano of three separate offenses: (1) the murder
of Gerardo Bustamante; (2) the aggravated assault with a deadly weapon of Pedro
M. Morales; and (3) the unlawful possession of a firearm by a felon. The jury
assessed Appellant’s punishment at confinement for life and a $10,000 fine for each
of the three convictions. The trial court sentenced Appellant accordingly and
ordered that the three sentences were to run concurrently. Appellant raises three
issues for review. We affirm.
      On the date of the offenses, Appellant went to visit his brother, Gabino
Bejarano, at Gabino’s home in Ector County. The two had several drinks at
Gabino’s house and at a nearby restaurant. At some point, Appellant decided to visit
Gerardo “Lalo” Bustamante. Appellant and Gabino walked to the trailer where
Bustamante lived and called or whistled for him to come outside. Bustamante came
outside and spoke with Gabino for a short time. Gabino testified that Appellant
asked Bustamante if he wanted “to go drink some beers” and that, suddenly, Gabino
heard a “pop.” Gabino saw Bustamante fall over and saw someone, who turned out
to be Morales, come out of the trailer. Gabino heard another shot and asked
Appellant what he was doing. The second shot missed, but frightened, Morales.
Gabino left the scene. Morales went to Bustamante to check on him. He testified
that he knew Bustamante was outside and that he believed the individuals were in
an argument because of the look on their faces. Morales testified that he had poor
eyesight and hearing but that he knew the man in the hat and jacket had fired the
shots. However, he could not positively identify a face. When Appellant “finally
caught up to” Gabino after Gabino had left the scene, Appellant admitted that he had
shot Bustamante.
      Michael Head, who owned a trailer near Bustamante’s trailer, ran to
Bustamante’s trailer when he heard shots. Head saw Bustamante on the ground and
saw two individuals—that turned out to be Appellant and Gabino—but he could not
see their faces as they walked away. Head called 911 and provided descriptions of
the two individuals whom he saw leave the scene. Officer Omero Carrasco, of the
City of Odessa Police Department, testified that he had received information that he
should be on the lookout for two men, one wearing a blue and white jersey and the
other wearing a black shirt with brown sleeves and a hat. Shortly thereafter,
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Officer Carrasco saw Appellant and Gabino as they were walking down the street;
they matched the descriptions that he had been given, and he stopped them.
      When he stopped Appellant and Gabino, Officer Carrasco ordered them to get
on the ground. Gabino quickly complied, but Appellant hesitated, removed a firearm
from his waistband, and slowly complied. He placed the firearm away from his body
and outside Gabino’s reach. Another Odessa police officer, Caleb Lacey, arrived
and confirmed that the firearm was on the ground near Appellant. It was not within
reach of Gabino. When the police searched Appellant, they found a plastic case
containing .22 caliber bullets in Appellant’s back pocket. The firearm recovered
was a .22 caliber weapon. The police took Appellant and Gabino into custody. After
officers interviewed Gabino, he was released.
      Kevin Richard Callahan, with the Texas Department of Public Safety Crime
Laboratory, analyzed the following items: (1) the firearm recovered from Appellant;
(2) the empty cartridge cases found in the firearm; (3) a lead bullet removed from
the support beam in Bustamante’s trailer; and (4) small metal fragments. Callahan
confirmed that the four empty cartridge cases were fired from the firearm recovered
from Appellant. However, he could not positively link any of the other items he
analyzed to this firearm because the marks on the items were unclear.
      In Appellant’s three issues, he claims that the evidence was insufficient to
convict him of any of the three offenses. Appellant argues that no rational jury
would believe the two witnesses who were at the scene at the time of the offenses
because one had inconsistencies in his statements to police officers and a criminal
history, and the other had poor eyesight and hearing. Appellant further argues that,
because the DPS laboratory did not test the gun for DNA or fingerprints, the gun
could not be linked to him. Finally, he argues that there is insufficient evidence that
the fragments were fired from the firearm recovered at the scene of his arrest because
the fragments found at the scene of the offenses could not be connected to the gun
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recovered. Thus, he requests this court to enter a judgment of acquittal or to reverse
and remand for a new trial.
      The State must prove each element of the three offenses beyond a reasonable
doubt. See, e.g., Calton v. State, 176 S.W.3d 231, 233 (Tex. Crim. App. 2005). As
charged in this case, a person commits murder when he “intentionally or knowingly
causes the death of an individual” or “intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual.” TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011). A person
commits aggravated assault as charged in this case when he “intentionally or
knowingly threatens another with imminent bodily injury” and “uses or exhibits a
deadly weapon during the commission of the offense.” Id. § 22.01(a)(2) (West Supp.
2014). Finally, “[a] person who has been convicted of a felony commits an offense
if he possesses a firearm . . . after conviction and before the fifth anniversary of the
person’s release from confinement following conviction of the felony.” Id.
§ 46.04(a)(1).
      We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In our review, we will
give deference to the duty of the factfinder to resolve credibility issues and to weigh
the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).


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      First, we will address Appellant’s third issue in which he challenges the
sufficiency of the evidence in support of his conviction for unlawful possession of a
firearm by a felon. Appellant stipulated to a prior felony offense; therefore, for the
third offense the only question was whether he possessed a firearm. Appellant
argues that, because the DPS laboratory did not analyze the gun for fingerprints or
DNA, there was insufficient evidence to link the gun to Appellant. However,
Officer Carrasco’s testimony placed the gun in Appellant’s possession
approximately 0.25 miles from Bustamante’s trailer. Further, as the laboratory
analyst testified, these tests were unnecessary since the officer saw Appellant handle
the gun. Any tests would be duplicative of the officer’s testimony. We hold that a
rational jury could have found beyond a reasonable doubt that Appellant possessed
the firearm. See id.; see also Jackson, 443 U.S. at 319. Appellant’s third issue is
overruled.
      Because Appellant’s first two issues are intertwined, we will address them
together. Appellant argues that there was insufficient evidence to show that he used
a firearm to commit the offenses. Appellant bases this argument on Callahan’s
inability to prove that the fragments or bullet he analyzed came from the recovered
gun. However, the bullet found in the support beam of the trailer and the gun
recovered from Appellant were both .22 caliber. One fragment was recovered from
Bustamante’s head during his autopsy. Further, Detective Michael Liverett, of the
Odessa Police Department, testified that the trajectory of the bullet found in the
support beam of the trailer was consistent with the shot fired at or near Morales.
Further, Appellant told Gabino that he had fired the shots. The jury was free to make
reasonable inferences from the facts presented. Hooper, 214 S.W.3d at 13.
      Appellant also argues that Gabino lacked credibility because there were
several inconsistencies in his statements to the police throughout the investigation.
Specifically, Appellant argues that the jury could not have found Gabino credible
                                          5
because he told Detective W.J. (Tom) Carlisle, of the Odessa Police Department, in
his first interview that Bustamante came out of the trailer because Gabino whistled
for him and in the second interview Gabino said that he called out for Bustamante.
Also, in Gabino’s first interview he did not mention Morales. Detective Carlisle also
testified that Gabino told him different stories about his plans to get Appellant to
town prior to the offense.       Finally, Appellant argues that Gabino testified
inconsistently about what Appellant said after he shot at Bustamante and Morales.
However, as Detective Carlisle testified, these inconsistencies did not affect his
investigation. This court must resolve any inconsistencies in the evidence in favor
of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
      Further, Appellant argues that no rational jury could have found Gabino’s or
Morales’s testimony to be credible because Gabino had a criminal history and
Morales had poor eyesight and hearing. However, the jury was free to give as little
or as much weight as it desired to Gabino’s and Morales’s testimony. See, e.g.,
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (“With respect to
testimony of witnesses, the jury is the sole judge of the credibility and weight to be
attached thereto . . . .”). Even if we disagreed, we cannot substitute our own
judgment for that of the jury. See Johnson v. State, 23 S.W.3d 1, 11–12 (Tex. Crim.
App. 2000).
      Moreover, the State presented evidence in addition to that provided by Gabino
and Morales. First, Head’s testimony placed Appellant at the scene of Bustamante’s
murder and Morales’s assault.      Second, not long after Bustamante was shot,
Officer Carrasco stopped Appellant and watched him take a firearm out of his
waistband and set it on the ground. Officer Carrasco testified that Appellant placed
the firearm where Gabino could not reach it. Officer Lacey arrived at the place
where Officer Carrasco apprehended Appellant and confirmed that the firearm was
not in Gabino’s reach. The firearm was a .22 caliber, and the bullet found in the
                                          6
trailer near where Morales was standing was a .22 caliber. We hold that, from the
evidence presented, a rational jury could have found Appellant guilty of all three
offenses. Appellant’s first and second issues are overruled.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


August 28, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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