                               NUMBER 13-09-00450-CR

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JOSE FIDENCIO TREVINO GARZA,                                                       Appellant,

                                               v.

THE STATE OF TEXAS,                                                                 Appellee.


                     On appeal from the 92nd District Court
                          of Hidalgo County, Texas.


                                          OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Vela
                     Opinion by Chief Justice Valdez

       Appellant, Jose Fidencio Trevino Garza, was convicted of murder, a first-degree

felony, and was sentenced to eighty years’ imprisonment. See TEX . PENAL CODE ANN . §

19.02(b)(1), (c) (Vernon 2003). By three issues, Garza contends that the evidence was

legally and factually insufficient to support the jury’s verdict and that the trial court erred by
denying his motion for a directed verdict. We affirm.

                                     I. BACKGROUND

       On the afternoon of January 21, 2008, Rudolph Johnston and Alejandro Macias

arrived at the Cardinal Express convenience store in La Villa, Texas. Macias exited the

passenger side of Johnston’s truck and, within moments, was shot and killed.

A.     Eyewitness Testimony

       1. Johnston’s Testimony

       Around 1:00 p.m., Johnston, as he did most days, picked up Macias at Cardinal

Express to help with various tasks around his ranch. After they finished working, Johnston

drove Macias back to Cardinal Express at approximately 3:40 p.m. Johnston testified that,

when he turned into the parking lot, Garza pulled away from Cardinal Express’s drive-

through window in a green Jeep Cherokee and “kept staring at [him].” Johnston asked

Macias who Garza was, and Macias responded, “Joe Garza” or “the Cat,” in a manner that

Johnston described as sounding “like they [Macias and Garza] were real good friends or

something.” Johnston then parked in front of Cardinal Express, exited his white Dodge

truck, and asked Macias to throw away his trash. Johnston testified that as he stepped into

the Cardinal Express doorway, he heard Macias say, “hey, Cat,” and then he heard a

gunshot. Johnston turned around and saw Macias “run to the front” of the Dodge, lean on

its hood, grab his chest, and fall to the ground. Johnston told Macias’s niece, Deborah

Diaz, and her common-law husband, Jesse James Saenz—both of whom worked at

Cardinal Express—to call the cops. Johnston then looked to his left and saw Garza

standing outside the store “with a gun in his hand.” On direct-examination, Johnston

described the gun as a chrome or nickel-plated .38 automatic or a revolver. However, on

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cross-examination, Johnston admitted that in a statement given to police, he described the

gun as a semi-automatic handgun.

       Johnston testified that after the shooting, Garza “looked at [Johnston] and turned

around and walked off” then got into his Jeep and drove away. Johnston then approached

Macias and checked for a pulse but found none.

       2. Diaz’s Testimony

       Diaz testified that her mother owns Cardinal Express and that, on January 21, 2008,

Diaz was working at the store as a cashier. Diaz stated that at approximately 2:45 p.m.,

she saw Garza drive up to Cardinal Express’s drive-through window in a green Jeep

Cherokee and purchase a twenty-four ounce can of Natural Light beer. Diaz knew Garza

because he had come into the store on a few occasions. Shortly after Garza drove away

from the window, Diaz saw Johnston and her uncle, Macias, park in front of the store. Diaz

stated that, as Saenz began to walk to the store’s open front door to greet Macias, she

“heard what [she] thought was a firecracker.”       Diaz followed Saenz to the door to

investigate the noise. As Saenz reached the door, he instructed Diaz to call 911. Diaz

testified that she saw Macias “take a couple of steps” towards Cardinal Express before he

“fell right in front.” Diaz called 911 on a cordless phone and, at some point, walked out of

the store and saw Garza’s face as he got back into his Jeep. Diaz testified that the only

vehicles in the parking lot at the time of the shooting were Garza’s Jeep and Johnston’s

Dodge. On cross-examination, Diaz admitted that she did not see Garza with a gun.

       3. Saenz’s Testimony

       Saenz testified that he sold a twenty-four ounce beer to Garza at Cardinal Express’s

drive-through sometime after arriving at work at approximately 3:00 p.m. on January 21,

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2008. Saenz testified that “within a minute or less than 45 seconds” after Garza pulled

away from the window, he heard what he thought was a firecracker. Saenz looked outside

and saw Macias “staggering and grabbing his chest.” Saenz then saw Garza inside the

Jeep. Saenz stated that “Garza just looked at [Saenz] real quick like that. Like he hadn’t

done anything and boom he just took off.” Saenz recalled that Johnston told Diaz and him

to call an ambulance, and Sandra, a Cardinal Express employee who had been working

at the back of the store at the time of the shooting, placed a blanket over Macias. Saenz

testified that he was “200 percent positive” that Garza shot Macias. However, on cross-

examination, Saenz stated that he did not actually see Garza with a gun or fire a shot at

Macias.

       4. Bernal’s Testimony

       Melva L. Bernal testified that sometime after 3:00 p.m. on the day in question, she

drove in front of Cardinal Express. As she sat in her vehicle waiting to turn onto a street

near the store, she heard “a pop” and saw a person run inside Cardinal Express. As she

turned her vehicle onto the nearby street, Bernal saw another person run and then fall to

the ground and a third person standing next to a Jeep. Although the man near the Jeep

looked familiar, Bernal did not initially recognize him.     Sensing that whatever was

happening was “not something good,” Bernal memorized the numbers and letters of the

Jeep’s license plate and wrote them on a sheet of paper as she drove to her house. After

Bernal arrived home, she realized that the man that she had seen next to the Jeep was

Garza, her friend’s ex-brother-in-law. Later that evening, Bernal’s cousin informed her that

there had been a shooting at Cardinal Express. Bernal told her cousin what she had seen

and then rode with him to Cardinal Express where police took down her information.


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Bernal did not give the police Garza’s name at that time. Three days later, the police took

Bernal’s statement, and she identified Garza from a photographic line-up and stated that

his name was “Joe Garza.”

       On cross-examination, Bernal admitted that she knew Garza’s ex-wife. Bernal also

acknowledged that she had heard on the news that Joe Garza was a suspect before she

provided his name to police. However, Bernal insisted that she had realized that the man

she saw standing next to the Jeep was Garza before she saw the news report.

       5. Other Eyewitnesses

       Valente Garcia testified that he “heard a gunshot or two” on the afternoon of

January 21, 2008, while he was raking leaves outside his home located two blocks from

Cardinal Express. Garcia disregarded the noise because he believed that it was fireworks.

       Porfirio Guerrero Jr. stated had known Macias for twenty years and that Garza is his

“good friend.” On the date in question, Guerrero heard something that sounded like a

firecracker as he and his friend, Michael Flores, drove near Cardinal Express. When

Guerrero passed Cardinal Express, he saw Saenz and Diaz standing near a body that was

lying on the ground. Guerrero denied seeing Garza at Cardinal Express; however, he

admitted that he told police that he “saw Joe driving off in the Jeep.” Guerrero explained

that, although he had seen Garza’s Jeep driving out of the parking lot, he had not actually

seen Garza in the Jeep.

       Flores testified that he knows Garza and Macias and that he “heard one bang”

shortly before he and Guerrero drove past Cardinal Express. Flores stated that as they

drove by, Guerrero said, “[t]here goes Joe.” Flores did not see Garza’s Jeep at Cardinal

Express and interpreted Guerrero’s comment to mean that Garza was the person that they

                                            5
saw laying on the ground and believed was dead.

B.     Forensic and Police Testimony

       Hidalgo County Chief Forensic Pathologist, Norma Jean Farley, M.D., testified that

she performed Macias’s autopsy and concluded that his death was caused by a gunshot

wound to the chest. Dr. Farley testified that people who sustain a wound like Macias’s do

not “die instantaneously” and, “depending on how much adrenaline they . . . have moving

through their system,” are able to “walk and move and talk until they die.” A single bullet

that perforated Macias’s heart, aorta, esophagus, and left lung was recovered during the

autopsy. Richard Hitchcox, a forensic firearm and tool-mark examiner with the Texas

Department of Public Safety Crime Laboratory in McAllen, Texas, identified the bullet as

a lead .38 caliber bullet. Hitchcox testified that the lead composition and grooves around

the bullet indicated that it was fired from a revolver—a firearm that does not automatically

discharge spent cartridge casings.

       Max Cantu, an investigator with the Hidalgo County Sheriff’s Office, testified that he

responded to a shooting at Cardinal Express between 4:00 and 4:30 p.m. on January 21,

2008. Investigator Cantu noticed a trail of “fresh” blood from a trash can outside Cardinal

Express to Macias’s body located in front of Johnston’s Dodge. Police searched the area;

however, no cartridge casings or bullets were located. The only gun found at the scene

was a .22 caliber handgun registered to Johnston and found under a seat in his Dodge.

At trial, Johnston stated that he carried the .22 caliber handgun in his truck for protection

from coyotes, wild dogs, and snakes on his ranch. Investigator Cantu testified that during

the investigation, Johnston informed the police of the presence of the gun in his truck and

that no evidence suggested that Johnston’s .22 caliber handgun was taken out of the


                                             6
Dodge or used to shoot Macias on January 21.

       While at the scene, officers spoke to Saenz, Diaz, and Johnston and received a

phone call from Garza’s brother. Garza’s brother, the police chief in a neighboring

community, told the officers that “family members had contacted him and told him that

[Garza] had been involved in a homicide or was a suspect of a homicide.” Garza’s brother

informed the officers of Garza’s whereabouts. After obtaining information identifying Garza

as the man in the green Jeep and as holding a gun at the time Macias was shot, the police

obtained an arrest warrant for Garza. Police later discovered that the license plate number

that Bernal recorded seeing on the green Jeep that left Cardinal Express soon after the

shooting matched the license plate on Garza’s Jeep.

       Police arrested Garza at his mother’s home in Mercedes, Texas, at approximately

8:20 that night. Garza complied with police and was transported to the Hidalgo County

Sheriff’s Office. Investigator Cantu testified that, after obtaining consent, officers searched

Garza’s mother’s home but did not locate a firearm. The officers found ammunition in a

bedroom where Garza was believed to have been staying for a few days; however,

Investigator Cantu stated that the ammunition recovered was not similar to that used in the

shooting. Investigators also searched Garza’s Jeep, another home where he sometimes

resided, and a location in San Benito, Texas, that Garza was believed to have visited on

the day of the shooting, but no gun or ammunition was found.

       On January 22, 2008, police, acting under an evidentiary warrant, searched Garza’s

mother’s house for a second time. Investigator Cantu testified that the officers found an

“old” gun, additional ammunition, and clothing believed to have been worn by Garza at the

time of Macias’s shooting. The gun was found in a display case and covered in dust.


                                              7
There were cobwebs in the barrel, the cylinder did not lock into position, and there were

“two cracks in the forcing column.” Hitchcox testified that the condition of the gun made

it unsafe to fire and excluded the gun as the weapon used in Macias’s shooting. Eduardo

Aleman, a Hidalgo County Sheriff’s Office crime scene specialist, discovered a box that

contained twenty-three .38 caliber rounds and nine nine-millimeter caliber rounds. Aleman

stated that the rounds were “kind of dusty and powdery” and that the box that contained

the ammunition appeared undisturbed.

       Various “swabbings” were performed throughout the investigation in an attempt to

identify gunpowder residue on either Garza or his Jeep. Gunpowder swabbings of Garza’s

hands were taken at approximately 9:15 p.m. on January 21, after Garza was taken into

custody. Investigator Cantu stated that the Department of Public Safety, the agency that

analyzes swabbings to determine the presence of gunpowder residue, initially decided not

to test the swabbings of Garza’s hands because the swabbings were not collected within

four hours of the shooting. However, at Investigator Cantu’s insistence, the swabbings

were analyzed. The results of the swabbings came back negative. Investigator Cantu

testified that gunpowder residue “can be removed by simply washing your hands” and that

during the investigation, he received information that Garza had showered before being

taken into custody. Swabbings from Garza’s Jeep’s steering wheel were also taken and

tested; the results were negative. Crime scene specialist, Oscar Gonzalez Jr., testified that

no four-hour window for gunpowder residue collection on clothing exists; however, the

clothing that Garza was believed to have been wearing at the time of Macias’s shooting

was not tested.

       After presenting the above evidence, the State rested. The defense rested without


                                             8
presenting any witnesses and moved for a directed verdict. The trial court denied Garza’s

motion for a directed verdict, and the jury found Garza guilty of first-degree murder. See

id. Garza was sentenced to eighty years’ imprisonment. This appeal followed.

                              II. SUFFICIENCY OF THE EVIDENCE

       In his first and second issues, Garza contends that the evidence is legally and

factually insufficient to support the jury’s verdict. In his third issue, Garza argues that the

trial court erred in denying his motion for a directed verdict. Because a motion for a

directed verdict is a challenge to the legal sufficiency of the evidence, we address these

issues together. See Perales v. State, 117 S.W.3d 434, 443 (Tex. App.–Corpus Christi

2003, pet. ref’d) (“A challenge to the denial of a motion for directed verdict is a challenge

to the legal sufficiency of the evidence.”) (citing Williams v. State, 937 S.W.2d 479, 482

(Tex. Crim. App. 1996)).

A.     Standard of Review and Applicable Law

       The Court of Criminal Appeals has recently held that there is “no meaningful

distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis

factual-sufficiency standard” and that the Jackson standard “is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

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

doubt.” Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, *14 (Tex. Crim. App.

Oct. 6, 2010) (plurality opinion). Accordingly, we review all of Garza’s claims of evidentiary

sufficiency under “a rigorous and proper application” of the Jackson standard of review.

Id. at *11.

       Under the Jackson standard, “the relevant question is whether, after viewing the

                                              9
evidence in the light most favorable to the prosecution, 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, 319 (1979); see Brooks, 2010 WL 3894613, at *5 (characterizing

the Jackson standard as: “Considering all of the evidence in the light most favorable to the

verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.”). “[T]he

fact[-]finder’s role as weigher of the evidence is preserved through a legal conclusion that

upon judicial review all of the evidence is to be considered in the light most favorable to the

prosecution.” Jackson, 443 U.S. at 319 (emphasis in original); see TEX . CODE CRIM . PROC .

ANN . art. 38.04 (Vernon 1979) (“The jury, in all cases, is the exclusive judge of facts proved

and the weight to be given to the testimony . . . .”); Wesbrook v. State, 29 S.W.3d 103, 111

(Tex. Crim. App. 2000) (“The jury is the exclusive judge of the credibility of witnesses and

of the weight to be given testimony, and it is also the exclusive province of the jury to

reconcile conflicts in the evidence.”).

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.

App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d).

Under a hypothetically correct jury charge, the State was required to prove beyond a

reasonable doubt that Garza (1) intentionally or knowingly (2) caused Macias’s death. See

TEX . PENAL CODE ANN . § 19.02(b)(1). “A person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct when it is his conscious

objective or desire to engage in the conduct or cause the result.” Id. § 6.03(a) (Vernon

2003). “A person acts knowingly with respect to a result of his conduct when he is aware

that his conduct is reasonably certain to cause the result.” Id. § 6.03(b). Intent may “be


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inferred from circumstantial evidence[,] such as acts, words, and the conduct of the

appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see Hart v. State,

89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating that a fact-finder may infer both

knowledge and intent from the defendant’s acts, words, or conduct and from the nature of

the wounds inflicted on the victim); Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim.

App. 1984) (noting that the requisite culpable mental state may be inferred from the

surrounding circumstances).

B.     Analysis

       Garza’s sufficiency arguments focus on the lack of physical evidence linking him to

Macias’s shooting. Specifically, Garza contends that the evidence is insufficient to support

the jury’s verdict because: (1) a gun linking Garza to the commission of the present

offense was never located; (2) no gunshot residue was found on Garza’s person or his

Jeep’s steering wheel; (3) the .38 caliber rounds found in Garza’s mother’s home were old

and appeared undisturbed; and (4) clothes recovered from Garza’s home were not tested

for gunshot residue. Garza also points out that none of the witnesses testified that they

actually saw Garza shoot Macias.

       The State is not required to present direct evidence to establish guilt. See Guevara,

152 S.W.3d at 49.      “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Guevara,

152 S.W.3d at 49.       The law does not require that each fact “point directly and

independently to the guilt of the appellant, as long as the cumulative effect of all the

incriminating facts is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13; see

                                            11
Guevara, 152 S.W.3d at 49.

       Johnston testified that as he and Macias pulled into the Cardinal Express parking

lot, he noticed Garza staring at him. Macias told Johnston that Garza went by the

nickname “Cat.” Soon after stepping out of his vehicle and into the store’s doorway,

Johnston heard Macias say, “hey, Cat,” and then he heard a gunshot. Johnston stated that

when he turned around he saw Macias “run to the front” of the Dodge and lean on its hood

then grab his chest and fall to the ground. Johnston testified that he then saw Garza

standing in the parking lot near a green Jeep holding a .38 caliber automatic handgun or

a revolver.

       Diaz and Saenz testified that Garza purchased a beer from the store’s drive-through

window shortly before they heard a loud noise in the parking lot. Diaz looked outside and

saw Macias “take a couple of steps” and fall in front of Johnston’s Dodge. Moments after

the shooting, Diaz, Saenz, Johnston, Bernal, and Guerrero saw a green Jeep drive out of

the Cardinal Express parking lot. The license plate recorded by Bernal matched the

license plate on Garza’s Jeep, and the other witnesses testified that the green Jeep

belonged to Garza.

       It is within the province of the jury to determine the credibility of the witnesses and

the weight to be accorded to their testimony. See Jackson, 443 U.S. at 318-19; Wesbrook,

29 S.W.3d at 111. Although no witness testified that he actually saw Garza pull the trigger

of a gun and shoot Macias, the jury heard testimony that immediately after Macias was

shot, Garza was the only person standing nearby holding a gun. Besides Johnston’s

Dodge, Macias’s Jeep was the only vehicle in the parking lot at the time of the shooting.

Moreover, none of the witnesses testified that anyone besides Macias, Garza, and possibly


                                             12
Johnston were in the parking lot at the time of shooting. Additionally, several witnesses

testified that they saw Garza leave Cardinal Express immediately after Macias was shot.

Garza’s flight from Cardinal Express constitutes an additional piece of circumstantial

evidence from which the jury could infer guilt. See Clayton v. State, 235 S.W.3d 772, 780

(Tex. Crim. App. 2007) (recognizing that “a fact[-]finder may draw an inference of guilt from

the circumstance of flight”) (citing Hardesty v. State, 656 S.W.2d 73, 78 (Tex. Crim. App.

1983); Jones v. State, 481 S.W.2d 900, 902 (Tex. Crim. App. 1972)). While we agree that

there is no “physical evidence” linking Garza to the crime, the circumstantial evidence in

this case is strong enough to support Garza’s conviction. See Hooper, 214 S.W.3d at 16

(noting that juries are permitted to draw reasonable inferences from circumstantial

evidence).

       Viewing all of the evidence in the light most favorable to the prosecution, we

conclude that a rational juror could have found beyond a reasonable doubt that Garza was

guilty of murder. See Jackson, 443 U.S. at 319; Brooks, 2010 WL 3894613, at *5; see also

TEX . PENAL CODE ANN . § 19.02(b)(1). Accordingly, we overrule Garza’s three issues on

appeal.

                                      IV. CONCLUSION

       Having overruled all of Garza’s issues, we affirm the judgment of the trial court.




                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice
Publish. TEX . R. APP. P. 47.2(b)

Delivered and filed the 9th
day of December, 2010.
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