                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                   NO. 2-09-121-CR


ALEXANDER LUIS LOPEZ                                                 APPELLANT
A/K/A ALEXANDER L. LOPEZ

                                             V.

THE STATE OF TEXAS                                                         STATE

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            FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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                                    I. INTRODUCTION

       A jury convicted Appellant Alexander Luis Lopez a/k/a Alexander L. Lopez of

aggravated assault with a deadly weapon, and the trial court sentenced him to eight

years’ confinement. In one point, Lopez argues that the evidence is legally and

factually insufficient to prove identity. W e will affirm.




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            See Tex. R. App. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On Thanksgiving Day of 2007, members of the Araujo family gathered for

dinner at Gloria Araujo’s house. In addition to Gloria and a number of young

children, those in attendance included Erica Araujo, Gloria’s daughter; Maria Elena

Araujo (“Maria E.”), Gloria’s sister; Maria Roxanne Araujo (“Roxanne”), Elsie Araujo,

and Maria Castillo (“Maria C.”), Maria E.’s daughters; and Laneilton Perry, Erica’s

boyfriend.

      About the same time, Lopez; Edgar Reza, Roxanne’s ex-boyfriend and the

father of her two children; and Jesse Muniz met for drinks. Roxanne and Reza had

planned to meet that day so that Roxanne could visit with her son, who was with

Reza. Roxanne called Reza several times between 8:00 p.m. and 11:00 p.m. to

arrange a meeting, but she never managed to speak with Reza. Instead, Roxanne

spoke with Mody Oviedo, Reza’s girlfriend at the time. Oviedo told Roxanne that she

had Roxanne’s son and to not call that telephone anymore.

      Roughly around 1:00 a.m., Lopez, Reza, Muniz, and Oviedo, all intoxicated,

went to Gloria’s house. Reza “banged” on the front door and asked for Roxanne,

Roxanne went outside and onto the porch with Reza, Maria E. and Maria C. followed

Roxanne outside, and Roxanne and Reza started arguing. W hen Erica came

outside in an attempt to “get in between the argument” between Roxanne and Reza,

Lopez punched Erica in the face. Reza grabbed Roxanne by the hair and dragged

her off of the porch and towards the front of the yard while punching her ribs. W hen


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Maria E. told Reza to stop and attempted to “grab [Roxanne] back,” Reza began

hitting her too, tackling her to the ground and punching her “all over.” Maria E. heard

Muniz tell Reza to “shoot the bitch,” and Maria E. heard a “pop,” felt a burning

sensation on her side, and realized that Reza had shot her. Around the same time

that Reza and Maria E. struggled on the ground, Muniz ran up to Roxanne and

stabbed her. Muniz also stabbed Maria E. in her back after Reza had shot her.

      Meanwhile, Gloria was inside her house when she heard several gunshots.

She retrieved her unloaded gun from her bedroom and headed outside, carrying her

gun in one hand and a clip in the other. Once outside, Gloria “saw chaos. I seen

men hurting my family, my daughter, my nieces.” After trying to pull Reza off of

Roxanne, whom Reza was beating, Gloria tried to load her gun, but Lopez took the

gun from her. Gloria ended up on the ground somehow, and Lopez pointed the gun

at her head and pulled the trigger, but the gun did not fire because it was unloaded.

Lopez then struck, or “pistol-whipped,” Gloria’s head with the gun, giving her a gash

on her head.

      Perry also became involved in the melee after he saw Lopez punch Erica. He

pushed Lopez, punched him in the forehead, and chased him into the street. Perry

heard a gunshot and ran back towards Gloria’s house, where he came face to face

with Reza. Perry “slammed” Reza and was on top of him when someone hit Perry’s

right eye from behind with a bottle. After taking a “barrage” of kicks and punches to




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his head and back, Perry was stabbed in the stomach by Reza. “Everyone” ran off

thereafter.

      The State indicted Lopez for attempted murder and aggravated assault with

a deadly weapon.        The aggravated assault count charged that Lopez “did

intentionally or knowingly cause bodily injury to Gloria Araujo by striking her with a

firearm and the defendant did use or exhibit a deadly weapon during the commission

of the assault, to-wit: a firearm.” The jury acquitted Lopez of attempted murder but

convicted him of aggravated assault. This appeal followed.

                       III. E VIDENTIARY S UFFICIENCY—IDENTITY

      In his only point, Lopez argues that the evidence is legally and factually

insufficient to prove that he committed aggravated assault against Gloria.            He

contends that “[t]he evidence in the instant case is completely confused and

conflicted as to the identity of the person who hit [Gloria] with the gun.”

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether 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, 99

S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007). This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;


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Clayton, 235 S.W .3d at 778. The trier of fact is the sole judge of the weight and

credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon

1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied,

129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine 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). W e must presume

that the factfinder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W .3d at 778.

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414

(Tex. Crim. App. 2006).      W e then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204


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S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,

with some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson, 204

S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

      In a criminal trial, the State must prove that the accused was the perpetrator,

and the accused stands innocent before the court until his identity is established

beyond a reasonable doubt. Rice v. State, 801 S.W .2d 16, 17 (Tex. App.—Fort

W orth 1990, pet. ref’d). Therefore, identification of the defendant as the person who

committed the offense charged is part of the State’s burden of proof beyond a

reasonable doubt. Johnson v. State, 673 S.W .2d 190, 196 (Tex. Crim. App. 1984).

Identity can be established by direct or circumstantial evidence. Earls v. State, 707

S.W .2d 82, 85 (Tex. Crim. App. 1986).

      Here, several witnesses identified Lopez as the person who struck Gloria on

her head with a gun. Erica testified that Lopez hit Gloria in the head with Gloria’s

gun after he had pointed the gun at Gloria and pulled the trigger. Maria C. testified


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that Lopez “snatched” Gloria’s gun from her and that he “pistol-whipped” her with the

gun after he had pointed it at her and pulled the trigger. And Gloria identified Lopez

in open court as the person who struck her with her gun. 2 Further, Maria E. testified

that the person who struck Gloria was wearing a plaid shirt, and Roxanne testified

that Lopez was wearing a plaid overshirt that night. Examining the evidence in the

light most favorable to the verdict, we hold that a rational trier of fact could have

found beyond a reasonable doubt that Lopez committed aggravated assault of Gloria

while using or exhibiting a gun. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Clayton, 235 S.W .3d at 778. Accordingly, the evidence is legally sufficient to show

that Lopez committed aggravated assault.

      Lopez argues that the evidence is factually insufficient to show that he

committed aggravated assault because (1) “[t]he testimony of the witnesses was so

conflicted and confused as to be wholly unreliable and insufficient,” (2) Gloria did not

identify him in a photographic spread as the person who assaulted her, (3) Ernesto

Baez, the nephew of Gloria’s neighbor, testified that he saw a man point a gun at

Gloria but that he did not see that man in the courtroom, (4) Perry did not see Lopez

do anything to Gloria, and (5) Reza, unlike the other witnesses, testified that he saw

Lopez fire two gunshots at a woman who was lying on the ground.

      The evidence demonstrates that Gloria failed to identify Lopez in a

photographic spread that she viewed after the incident but before going to the

      2
           The strike to Gloria’s head caused her pain and left an open wound.

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hospital that night, instead identifying another person, but she did identify Lopez at

trial as the person who assaulted her, and several other witnesses who testified at

trial unequivocally identified Lopez as the person who assaulted Gloria.          See

Grayson v. State, 82 S.W .3d 357, 359 (Tex. App.—Austin 2001, no pet.) (holding

evidence factually sufficient to support conviction for aggravated assault when

complainant was unable to identify defendant as the shooter but complainant’s

companion identified defendant). Baez testified that he did not see the person who

pointed the gun at Gloria in the courtroom, but he also explained that he was not

able to get a good look at the person’s face. Perry testified that he did not see

Lopez strike Gloria with the gun, but he explained that he did not see Lopez fighting

with anyone because he himself was “busy” fighting and that he never even saw

Gloria outside of her house. And while Reza testified that he saw Lopez fire two

gunshots at a woman who was lying on the ground, he was unable to identify the

woman.

      Each witness’s testimony with regard to the totality of the events that occurred

at Gloria’s house varied to a certain extent because each witness participated in and

observed those events from a different perspective. This, however, does not in and

of itself render the evidence that Lopez struck Gloria on her head with a gun

“unreliable and insufficient.” See Bowden v. State, 628 S.W .2d 782, 784 (Tex. Crim.

App. 1982) (reasoning that some inaccuracies in a witness’s description do not

automatically render the evidence insufficient and that reconciliation of conflicts and


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contradictions in the evidence is within the province of the jury). The jury sat as the

judges of the facts, the credibility of the witnesses, and the weight to be given to the

testimony and resolved any conflicts in the evidence regarding the issue of identity

in favor of the State. See Cain v. State, 958 S.W .2d 404, 410 (Tex. Crim. App.

1997) (reasoning that jury’s decision is not manifestly unjust merely because the jury

resolved conflicting views of the evidence in favor of the State).        Accordingly,

examining the evidence in a neutral light, favoring neither party, we hold that the

evidence supporting Lopez’s conviction for aggravated assault is not so weak that

the jury’s determination is clearly wrong and manifestly unjust or that the conflicting

evidence so greatly outweighs the evidence supporting the conviction that the jury’s

determination is manifestly unjust. See Steadman, 280 S.W .3d at 246; Watson, 204

S.W .3d at 414–15, 417. The evidence is factually sufficient to show that Lopez

committed aggravated assault. W e overrule Lopez’s only point.

                                   IV. C ONCLUSION

      Having overruled Lopez’s sole point, we affirm the trial court’s judgment.



                                               BILL MEIER
                                               JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 6, 2010


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