                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-12-00404-CR


RODAS ZEPEDAVEGA                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant Rodas Zepedavega was convicted after a bench trial of

aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.01(a)

(West 2011).    In one issue, Appellant argues the evidence is insufficient to

support his conviction.

      Samuel Velasquez and his wife, Santoleonor Sanchez, rented space in

their apartment to Appellant.   On February 11, 2011, the three argued after
      1
       See Tex. R. App. P. 47.4.
Appellant was playing loud music and would not turn it down. Appellant admits

that he was drunk during this time. Velasquez forced Appellant to leave the

apartment, and Velasquez and Sanchez retreated to their bedroom. Appellant

broke a window to get back into the apartment. Appellant then broke through the

door on Velasquez and Sanchez’s bedroom and cut Velasquez twice with a

knife. Appellant fled by jumping from the second-floor balcony. Once police

officers arrived at the scene, Appellant returned to the apartment and asserted

that he had been the victim of an assault.

      At trial, Appellant argued that Velasquez was jealous because Sanchez

would give Appellant food. Appellant claimed that Velasquez attacked him and

threw him off the balcony. Appellant testified that he broke the window when he

leaned against it. He denied that he attacked and cut Velasquez. The trial court

found Appellant guilty of aggravated assault with a deadly weapon of Velasquez

and sentenced Appellant to two years’ confinement. 2

      In his sole issue, Appellant argues that the evidence was insufficient to

support his conviction.   In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

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

found the essential elements of the crime beyond a reasonable doubt. Jackson


      2
        Appellant was charged and tried for aggravated assault of Sanchez
arising from the same incident. The trial court found Appellant not guilty of that
offense.


                                        2
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364

S.W.3d 900, 903 (Tex. Crim. App. 2012). 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

(West 1979); Wise, 364 S.W.3d at 903. Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the fact finder. Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We must presume that the fact

finder resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at

903.

       Appellant asserts that the trial court erred in failing to rely on his testimony

and find him not guilty of the assault:

              While the couple both testified as [to] the sequence of events from
       their point of view, . . . Appellant’s testimony is equally plausible. . . . It
       seems incredible that Appellant would jump from a balcony . . . . It seems
       far more credible that Appellant was attacked and was thrown off of the
       balcony, as Appellant testified.

We may not make credibility determinations that counter a fact finder’s judgment.

See Isassi, 330 S.W.3d at 638. Here, the trial court chose to credit Velasquez’s

and Sanchez’s versions of events regarding the assault of Velasquez, which are

sufficient to support the verdict. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999) (holding all evidence must be considered in sufficiency review,

including evidence conflicting with defendant’s theory of case), cert denied, 529

U.S. 1131 (2000); Woods v. State, Nos. 01-03-00380-CR, 01-03-00381-CR,


                                          3
2004 WL 1584900, at *6 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (“Faced

with different versions of the events that took place inside the apartment that

evening, the trial court simply chose not to believe appellant’s testimony . . . .”);

Baker v. State, 986 S.W.2d 271, 276 (Tex. App.—Texarkana 1998, pet. ref’d)

(holding fact finder may resolve conflicts in evidence and “may accept one

version of facts and reject another or reject any of a witness’s testimony”). We

defer to the trial court’s resolution of the conflicting evidence.

      Thus, we overrule the issue and affirm the trial court’s judgment.



                                                      LEE GABRIEL
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

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

DELIVERED: May 30, 2013




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