                            NUMBER 13-09-00622-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

EFRAIN PUENTE,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas.


                        MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Rodriguez and Garza
           Memorandum Opinion by Justice Rodriguez

       Appellant Efrain Puente was indicted for the offense of murder. See TEX.

PENAL CODE ANN. § 19.02(b)(1) (West 2003). He entered a plea of "not guilty." After

the jury rejected appellant's justification theory of self-defense, it found him guilty of
murdering Francisco Losoya.            During the punishment phase, the jury found that

appellant did not cause Losoya's death under the immediate influence of sudden

passion and assessed punishment at life in the Institutional Division of the Texas

Department of Criminal Justice and a fine of $10,000. See id. § 19.02(d). By four

issues, which we renumber as two, appellant complains that the evidence is

insufficient to support his conviction. We affirm.

                                         I. BACKGROUND1

        The evidence established that appellant and his wife, Teresa Puente, lived

together in a mobile home in El Ranchito, Texas, with their two children and Teresa's

four older children. Approximately three weeks before the incident, appellant and

Teresa argued. Teresa told appellant that she wanted him to leave. Appellant went

to Houston, Texas, to stay with his mother and find work. On May 13, 2008, at

approximately 4:00 p.m., appellant called Teresa and asked to see his children.

Teresa agreed to the visit but told appellant that she hated him. Appellant arrived at

the house later that day.

A. Teresa Puente's Testimony

        According to Teresa, Francisco Losoya had been staying at the house for about

one week when appellant called her.                 Losoya was wearing appellant's clothes

because he arrived at Teresa's house without a change of clothing. Teresa also

testified that Losoya knew appellant was coming to see his children, and Losoya

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.

                                                   2
threatened to kill appellant.

        At trial, Teresa testified that, on May 13, she was outside with three of her

children.    Teresa's and appellant’s two children were inside with Teresa's oldest

daughter. According to Teresa, Losoya had been drinking and was also outside.

Teresa testified that she did not see Losoya holding a knife that afternoon, except for

when he was peeling lemons. Losoya placed some of his knives on the top stair by

the back door of the house. Teresa heard a scuffle that lasted "not even minutes,"

saw Losoya and appellant struggling and fighting, grabbed her daughter, and ran to get

help. Teresa also testified that she did not see appellant holding a knife. According

to Teresa, appellant ran when he heard her scream "Police."                           She testified that

Losoya chased appellant until appellant got into a car where another man was waiting,

and appellant and the other man left.

        On cross-examination, Teresa identified, read into the record, and testified,

without objection, about certain portions of a written statement she had given at or near

the time of the incident.2 Teresa agreed that her written statement contained the

following information that differed from her trial testimony:                   (1) appellant stabbed

Losoya while Losoya was sitting on the steps; (2) appellant was the first to pull out a

knife, and he began stabbing Losoya; and (3) appellant continued to stab Losoya.

Teresa also agreed that her previous statement reflected that appellant was

responsible for the stabbing.            She testified, however, that although she told the


        2
            It is unclear from the record whether Teresa was testifying about a May 13 statement she gave
while sitting in a police car outside the house or from a statement given to an investigator at the sheriff's
office on May 16, 2008. Nonetheless, Teresa did testify regarding the statements she gave to police.

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officers that Losoya was playing with knives, that was not included in her written

statement. She also agreed that nowhere in her written statement did she say that

appellant stayed to help Losoya, that Losoya started the fight, or that Losoya had any

weapon during the stabbing.

       Recanting what she said in her prior statement, Teresa testified that she gave

her statement to investigators out of fear of America Garcia, Losoya's mother, who had

allegedly threatened Theresa.        She also testified that if she blamed appellant,

"[Garcia] would never hurt [her] because there was somebody that was guilty."

Teresa agreed that, after fighting with Garcia, she changed her story. When asked,

"So were you lying then or are you lying now, ma'am?," she answered, "No. I was

lying back then."

       On redirect, Teresa testified that she had tried to tell an officer that the

handwritten statement was not true, but he informed her that if she changed anything,

she would be locked up and would lose her children. When asked which one she

feared more, the officer or Garcia, Teresa testified, "[Garcia], but I don't care because I

want to tell the truth because I have been like I'm in a jail."

B. Appellant's Testimony

       Appellant testified at trial that after talking with Teresa by phone about seeing

his children, a friend drove him to the house. When appellant arrived, he found a man

wearing camouflage pants inside his home. Appellant thought this man had a knife

and was breaking into his house.         Appellant explained that because of what he

thought this man might have done to his family and because the man appeared to be

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running away, appellant went toward him. According to appellant, the man took out a

knife and started to attack him. Appellant testified that what began in the trailer

progressed to the backyard when both men fell out the back door of the mobile home.

According to appellant, he fell on top of the man. They wrestled, got up, fought, and

fell back down for approximately three or four minutes.

       Appellant testified that he took a knife away from the man, but then the man took

the knife back. According to appellant, the man got up and started to run toward the

side of the mobile home. Appellant testified that he thought the man was going to get

something else to "finish trying killing" him, so he got in the car and left. Appellant

explained that he had blood on his arms—his blood where he had been cut and some

other blood. According to appellant, he told his friend that "this man attacked me. I

had to defend myself." Appellant testified that he also told his friend that "this man

tried to stab me and had cut me in my arm." Appellant claimed that he had no

weapons on him that day and that he did not know Losoya died until he was arrested.

C. Rogelio Becerra's Testimony

       Rogelio Becerra, Teresa's neighbor, testified that he was leaving for work on

May 13, 2008, when he heard a scuffle in his neighbor's yard and heard his neighbor

screaming, "they're going to kill him." After Becerra saw one male run to a car and the

car "haul a**," he called for help.

D. America Garcia's Testimony

       Garcia testified that she received a call from Teresa and left immediately to see

what happened. She explained that Teresa and Losoya were friends and that "[h]e

                                           5
was paying rent to Teresa so he could go work [with transportation arranged by

Teresa]." Garcia agreed that she and another son assaulted Teresa at Losoya's

funeral. But, according to Garcia, she never threatened Teresa. Garcia testified that

she saw Teresa approximately three weeks before trial, and Teresa had said that "she

was afraid to come [to trial] because of her family."

D. Officer Marco Antonio Gonzalez's Testimony

       Officer Gonzalez, the intake officer at the Cameron County Jail, testified that

when appellant arrived at the jail, he took him to the nurse to be checked for injuries.

At that time, appellant asked him something in Spanish, which was interpreted as

slang to mean "to knife, to cut with a knife." Officer Gonzalez testified that he was

familiar with some street language and that, to him, "it meant that [appellant] had

stabbed a young kid." Appellant was assessed by the nurse, who noted cuts on the

inside of appellant's left arm. Officer Gonzalez testified that, while being treated,

appellant spoke in Spanish and said what was interpreted as the following: "When we

were knifing the young guy, I jumped over the fence and I got cut." When asked if

appellant made any other admissions that night, Officer Gonzalez replied, "No, ma'am.

He was just admitting he had stabbed somebody."

E. Norma Jean Farley, M.D.'s Testimony

       Dr. Farley, a forensic pathologist, testified that she conducted the autopsy on

Losoya. She identified nine stab wounds–-wounds to Losoya's jaw, left backside, left

frontal scalp, anterior left chest, mid chest, left abdomen, left arm, and hip. Dr. Farley

described two wounds on Losoya's left forearm as defensive-type stab wounds. She

                                            6
also identified contusions on Losoya's shoulder. Dr. Farley testified that the fatal

wound to the anterior left chest, which in her opinion was made by a knife, was

four-and-a-half inches deep following a lethal wound track, going through "the left lung

and into the sac that sits around the heart and into the pulmonary artery . . . ."

                           II. SUFFICIENCY OF THE EVIDENCE

       By two issues, appellant claims that the evidence is insufficient to support his

murder conviction. By his first issue, appellant specifically challenges the sufficiency

of the evidence to establish the intent element of the offense, see TEX. PENAL CODE

ANN. § 19.02(b)(1), and, by his second issue, the jury's rejection of his self-defense

claim. See id. § 9.32 (a)(3)(A) (West Supp. 2010).

                                A. Standard of Review

       Although appellant challenges both the legal and factual sufficiency of the

evidence, in light of the Texas Court of Criminal Appeals's 2010 opinion in Brooks v.

State, we will conduct only a legal sufficiency review. See 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (plurality op.). Brooks held that there is "no meaningful distinction

between the . . . legal-sufficiency standard and the . . . factual-sufficiency standard,

and these two standards have become indistinguishable."            Id. at 902.       A legal

sufficiency standard is "the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element in a criminal

offense that the State is required to prove beyond a reasonable doubt. All other cases

to the contrary . . . are overruled." Id. at 912.

       When conducting a sufficiency review, a court must ask whether "any rational

                                             7
trier of fact could have found the essential elements of the crime beyond a reasonable

doubt"—not whether "it believes that the evidence at the trial established guilt beyond

a reasonable doubt."     Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).           A

sufficiency analysis requires the court to view all of the evidence in "a light most

favorable to the verdict and to determine whether a rational trier of fact could have

found all of the essential elements of the crime beyond a reasonable doubt." Id.; see

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We look at "events

occurring before, during and after the commission of the offense and may rely on

actions of the defendant which show an understanding and common design to do the

prohibited act." Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (quoting

Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). The trier of fact is

the sole judge of the facts, the credibility of the witnesses, and the weight given to

testimony. TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Beckham v. State, 29

S.W.3d 148, 151 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). We do not

reevaluate the weight or credibility of the evidence, nor do we substitute our own

conclusions for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.

2000) (en banc). Instead, we resolve any inconsistencies in the evidence in favor of

the final judgment and consider whether the jury reached a rational decision. Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

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

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As

                                          8
indicted in this case, appellant is guilty of murder if he intentionally or knowingly caused

the death of an individual by stabbing him with a knife or other unknown object. See

TEX. PENAL CODE ANN. § 19.02(b)(1).

                                  B. Applicable Law

1. Intent

       Intent and knowledge are fact questions for the jury, and are almost
       always proven through evidence of the circumstances surrounding the
       crime. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984) [(en
       banc)]; Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.—Houston
       [14th Dist.] 1996, no pet.). Intent may be inferred from words and
       conduct of the accused. See Hernandez v. State, 819 S.W.2d 806, 810
       (Tex. Crim. App. 1991) [(en banc)]. Intent to kill may be inferred from
       use of a deadly weapon, unless in the manner of its use it is reasonably
       apparent that death or serious bodily injury could not result. Flanagan v.
       State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984) [(en banc) (op. on
       reh'g)]; Bell v. State, 501 S.W.2d 137, 138-39 (Tex. Crim. App. 1973).

Childs v. State, 21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd);

see Guevara, 152 S.W.3d at 49-50.

2. Self-Defense

       One may use force against another when and to the degree he reasonably

believes the force is immediately necessary to protect himself against the other's use

or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31 (West Supp. 2010).

This includes using deadly force against the other if a reasonable person in the actor's

situation would not have retreated and when and to the degree that "he reasonably

believes" the deadly force is immediately necessary to protect himself against the

other's use or attempted use of unlawful deadly force. Id. § 9.32(a).

       When a defendant asserts a claim of self-defense, the State has the ultimate

                                             9
burden of persuasion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2007);

Miller v. State, 177 S.W.3d 177, 183 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).

The burden of persuasion does not require the production of evidence; it requires only

that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594.

"The issue of self-defense is a fact issue to be determined by the jury, and a jury is free

to accept or reject the defensive issue, even if the evidence is uncontroverted." Hill v.

State, 99 S.W.3d 248, 252 (Tex. App.—Fort Worth 2003, pet. ref'd) (citing Wilkerson v.

State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994)). When a jury finds a defendant

guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at

594.   When reviewing the sufficiency of the evidence concerning the jury's rejection

of self-defense, "we determine whether after viewing all the evidence in the light most

favorable to the prosecution, any rational trier of fact would have found the essential

elements of murder beyond a reasonable doubt and also would have found against

appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804

S.W.2d 910, 914 (Tex. Crim. App. 1991) (en banc); Lee v. State, 259 S.W.3d 785, 791

(Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).

                                    C. Discussion

1. Intent

       By his first issue, appellant contends that the evidence is insufficient to establish

the element of intent beyond a reasonable doubt and is, therefore, insufficient to

support the jury's verdict. Appellant asserts that there is no evidence to establish that

he acted with the intent to murder Losoya, rather than to just defend himself.

                                            10
       Here, the evidence establishes that appellant and Teresa had been separated

for approximately a month. Appellant went to see his children. Shortly before he

arrived, appellant talked with Teresa and was told that he could see his children but

that Teresa hated him. Appellant found Losoya, a man appellant did not know, at the

house where his wife and children lived. Losoya was wearing appellant's clothes.

This is evidence of circumstances surrounding the crime which could have established

appellant's intent to murder Losoya. See Guevara, 152 S.W.3d at 50 ("Motive is a

significant circumstance indicating guilt.").

       Although it is undisputed that appellant and Losoya fought, Teresa testified that

she saw neither man with a knife while they fought. However, Teresa also testified at

trial that her statement to the police included the following: that appellant was the first

to pull out a knife; that he began stabbing Losoya while Losoya sat on the steps; and

that appellant continued to stab at Losoya. Appellant also testified that, at some point

during the fight, he had the knife; he took it away from the man. And Officer Gonzalez

testified that appellant admitted he had stabbed somebody. Therefore, the jury could

have determined that appellant used a deadly weapon. See Childs, 21 S.W.3d at

635. Moreover, Losoya's nine stab wounds, one of which was a four-and-a-half lethal

knife wound, were inflicted in a manner that could have and did result in death.

Appellant only received one cut on his arm, and there is conflicting testimony as to how

he received that cut—from the fight or from jumping over the fence. No one else was

involved in the fight. The jury could have inferred intent to kill from this evidence.

See id. Moreover, appellant did not immediately call 911 or an ambulance after

                                            11
allegedly stabbing Losoya in self-defense. Instead, according to Teresa’s neighbor,

when Teresa yelled for someone to call the police, appellant fled the scene in haste.

Intent can be inferred from such conduct. See Hardesty v. State, 656 S.W.2d 73,

77-78 (Tex. Crim. App. 1983) ("Flight is also a circumstance indicating guilt.").

       We are to view all of the evidence in "a light most favorable to the verdict and to

determine whether a rational trier of fact could have found all of the essential elements

of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 318-19; see Laster,

275 S.W.3d at 517.       The jury weighed conflicts in testimony and resolved them

against appellant. See TEX. CODE CRIM. PROC. ANN. art. 38.04; Beckham, 29 S.W.3d

at 151.    We will neither reevaluate that determination nor substitute our own

conclusions for those of the jury. See King, 29 S.W.3d at 562. Instead, while the

record supports conflicting inferences, we must presume that the trier of fact resolved

any such conflicts in favor of the prosecution, and we must defer to that resolution.

See Jackson, 443 U.S. at 326. Doing so, we conclude that, in this case, a rational trier

of fact could have found, beyond a reasonable doubt, that appellant intentionally

caused the death of Losoya by stabbing him with a knife. See id. at 318-19. We

overrule appellant's first issue.

2. Self-Defense

       By his second issue, appellant claims that the evidence is insufficient to support

the jury's rejection of his self-defense claim.     He specifically contends that "the

evidence shows that any acts [appellant] committed which were acts dangerous to . . .

Losoya's life, were acts made in self-defense.        [Appellant] testified he acted in

                                           12
self-defense and did not know . . . Losoya had died." Appellant asserts that he "had

no choice but to use the force to defend himself which was, at the very least, equal to

the force that was being inflicted upon him by . . . Losoya," who was trying to stab him.

We disagree.

       As set out above, although Teresa testified that Losoya had placed some knives

on the outside stairs, the only evidence that Losoya had a knife when he fought with

appellant came from appellant's testimony. Losoya was stabbed nine times while

appellant received only one cut, which the jury could have determined occurred when

he jumped over the fence. Even if appellant's testimony that Losoya had a knife was

uncontroverted, the jury was free to reject appellant's self-defense claim. See Hill, 99

S.W.3d at 252. The jury could have concluded that Losoya's actions were not so

threatening to appellant at that time that appellant reasonably believed that his actions

were necessary to protect himself against Losoya. See TEX. PENAL CODE ANN. § 9.31.

In this case, a rational jury could also have chosen to disbelieve appellant's testimony

that it appeared to him that Losoya had a knife when he first saw him in the trailer and

when they fought; that he had to defend himself against Losoya's attempted use of

deadly force; and that a reasonable person in that situation would not have retreated.

Id. § 9.32(a).

       Although appellant may have perceived things differently, the evidence is, at

best, conflicting with regard to whether Losoya engaged in any physical attack on

appellant that would have justified appellant's use of deadly force against him. The

jury could have rejected the defensive evidence and concluded that appellant suffered

                                           13
nothing life-threatening at the hands of Losoya at or near the time appellant repeatedly

stabbed and killed him. See Hill, 99 S.W.3d at 253.

       Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational trier of fact could have found beyond a reasonable doubt that appellant

intentionally caused Losoya's death, see Zuliani, 97 S.W.3d at 594; Saxton, 804

S.W.2d at 914, and that a rational jury could have found against appellant on the

self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.

Accordingly, we conclude that the evidence is sufficient to support the jury's finding of

guilt and its rejection of appellant's claim of self-defense. We overrule appellant's

second issue.

                                   VI. CONCLUSION

       We affirm the judgment of the trial court.


                                                               NELDA V. RODRIGUEZ
                                                               Justice

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

Delivered and filed the
9th day of June, 2011.




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