                                     NUMBER 13-07-721-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


GABRIEL BARBOZA,                                                                             Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                          Appellee.


   On appeal from the 347th District Court of Nueces County, Texas.


                               MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Yañez and Benavides
                Memorandum Opinion by Justice Yañez

        A jury found appellant, Gabriel Barboza, guilty of murder1 and aggravated assault.2

The trial court assessed punishment at fifty years for the murder and twenty-five years for

the aggravated assault. In a single issue, appellant contends the evidence is factually


        1
          See T EX . P EN AL C OD E A N N . § 19.02 (Vernon 2003). Each offense was enhanced by a prior felony
conviction.

        2
            See id. § 22.02 (Vernon Supp. 2007).
insufficient to support his convictions. We affirm.

                                            Background

        Officer Tommy Cabello, a Corpus Christi police officer, testified that around 9:00

p.m. on the evening of May 13, 2006, he responded to a call that shots had been fired at

a nearby intersection. When Officer Cabello pulled into the parking lot of a convenience

store located at the intersection, he saw a car with bullet holes in the passenger-side

window and door. A man, later identified as Juan Hernandez, was sitting in the front

passenger seat, bleeding heavily from a leg wound. A second shooting victim, later

identified as Rey Ybarra, was laying on the ground in front of the store’s front entrance.

Ybarra later died from injuries sustained in the shooting. Before emergency medical

personnel arrived, Hernandez—who Officer Cabello described as “scared” because “he did

not want to die”— told Officer Cabello he did not know who had fired the shots, but that the

suspect vehicle was a Ford Expedition.

        Officer Rogiberto Montejano testified that he and his partner, Officer Parker, arrived

at the scene either first or about the same time as Officer Cabello. As Officer Parker

interviewed Hernandez, Officer Montejano heard Hernandez say that he knew who shot

him, but could not recall the name. According to Hernandez, the officers “had the name

on file” because the shooter had stabbed Hernandez in an earlier altercation.3

        James Ross testified that he and his wife were in a vehicle, in the left-hand (inside)

lane stopped at the intersection. The Ross car was the first car stopped at the intersection;

there were other cars behind them and in the outside lane to their right. Ross testified he


        3
          It was later determ ined that there was no police report on file involving the stabbing Hernandez
referred to.

                                                    2
heard five or six gunshots. A few seconds later, the car immediately behind Ross pulled

out to the left (into the oncoming traffic lane), ran the red light crossing the intersection, and

pulled into the convenience store parking lot. Ross testified he did not notice any other

cars speeding away, and did not notice where any of the cars in the outside lane went.

       Michael Ketchum testified that he heard the gunfire as he was leaving a nearby

grocery store. He saw an Expedition leaving the intersection at a high rate of speed.

       Detective Cody Harrison, an investigator with the gang unit, testified that he

interviewed Hernandez at the hospital.                   Harrison testified that Hernandez said that

appellant shot him.           According to Harrison, sometimes interviewees were “more

forthcoming” and spoke more freely to gang investigators than to other officers.

       Hernandez testified that he and Ybarra (who was driving) were stopped at the

intersection when Ybarra, indicating the car to their right, said, “there is that Puto that

stabbed you.”4 Hernandez looked and saw appellant, who was driving the Expedition,

gesturing towards him. Hernandez reclined the front passenger seat, rolled down the back

rear window,5 and started arguing with appellant. After some “arguing back and forth,”

appellant “just started shooting.” Hernandez was hit twice in his leg, and Ybarra was hit

several times in his chest and stomach area. According to Hernandez, Ybarra could not

go forward because the car in front of his was still waiting for the light to change. Ybarra

reversed the car, pulled out to the left, ran the red light, and pulled into the convenience

store parking lot. Hernandez testified that although he did not see the Expedition turn right



       4
           “Puto” is a Spanish slang derogatory term .

       5
           Both front windows were locked in the “up” position and could not be lowered.

                                                         3
at the intersection, he assumes it did.6 Hernandez testified that when he was being treated

at the hospital, he told a police officer that appellant shot him and described the vehicle he

was driving. Hernandez said that he was shown a six-person line-up, and that he picked

appellant out of the line-up. Hernandez also identified appellant’s tattoo. On cross-

examination, Hernandez said that although he was unable to identify who had stabbed him

at the time of the stabbing incident, he and Ybarra had since learned that appellant had

stabbed him from “word on the street.” At trial, Hernandez identified appellant as the

person who shot him.

        Appellant testified at trial and denied shooting Ybarra and Hernandez. According

to appellant, he was out of town and did not own a car at the time of the shooting.

Appellant testified that he knew Ybarra and Hernandez, and that he had been involved in

the earlier fight; he denied, however, that he had stabbed Hernandez in the fight. On

cross-examination, appellant admitted that when he heard there was a warrant for his

arrest in this case, he avoided arrest by staying with a friend in the Rio Grande Valley for

several months.

                           Standard of Review and Applicable Law

        We measure the factual sufficiency of the evidence in a jury trial by the elements

of the offense as defined by a hypothetically correct jury charge.7 In determining the

factual sufficiency of the elements of the offense, we view all the evidence in a neutral light


        6
          An aerial photo at trial established that there were only two driving lanes at the intersection; there
was no left-turn lane and no right-turn-only lane. There was, however, an unpaved shoulder to the right. On
cross-exam ination, Hernandez said he was not “just assum ing,” but that he saw the Expedition turn right.

        7
         See Grotti v. State, No. PD-134-07, 2008 Tex. Crim . App. LEXIS 761, at *16 (Tex. Crim . App. June
25, 2008); Adi v. State, 94 S.W .3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref'd).

                                                       4
to determine whether a jury was rationally justified in finding guilt beyond a reasonable

doubt.8 We set aside a finding of guilt only if the evidence supporting the verdict is so

weak that the jury’s verdict is clearly wrong and manifestly unjust or when the great weight

and preponderance of the evidence is contrary to the verdict.9 A proper factual sufficiency

review must consider the most important evidence that the appellant claims undermines

the jury’s verdict.10

         The jury, as the trier of fact, is the exclusive judge of the credibility of witnesses and

the weight to be afforded their testimony.11 The jury is free to believe one version of the

facts and reject another.12 It is also entitled to accept or reject all or any portion of a

witness’s testimony.13 We are authorized to disagree with the fact finder’s determination

only when the record clearly indicates our intervention is necessary to stop the occurrence

of a manifest injustice.14

         In order to prove that appellant committed the offense of murder under section

19.02(b) of the Texas Penal Code, as alleged in the indictment, the State had to prove that

(1) appellant (2) caused the death of Rey Ybarra (3) by shooting Ybarra with a gun (4) with



         8
             See W atson v. State, 204 S.W .3d 404, 414-17 (Tex. Crim . App. 2006).

         9
             Id. at 415.

         10
              Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim . App. 2003).

         11
          T EX . C OD E C R IM . P R O C . A N N . art. 38.04 (Vernon 1979); Sharp v. State, 707 S.W .2d 611, 614 (Tex.
Crim . App. 1986).

         12
              Penagraph v. State, 623 S.W .2d 341, 343 (Tex. Crim . App. 1981).

         13
              Id.; Ozuna, 199 S.W .3d at 605.

         14
              Johnson v. State, 23 S.W .3d 1, 9 (Tex. Crim . App. 2000).

                                                          5
either (a) intent to cause Ybarra’s death or (b) intent to cause Ybarra serious bodily injury

and committing an act clearly dangerous to human life.15

        A person acts intentionally when it is his conscious objective or desire to engage in

the conduct or cause the result.16 A person acts knowingly when he is aware that his

conduct is reasonably certain to cause the result.17

        Intent is a question of fact that is within the sole purview of the jury; the jury may rely

on its collective common sense and apply common knowledge and experience.18 Intent

may be inferred from the circumstantial evidence surrounding the incident including the

acts, words, and conduct of the accused.19 Moreover, the jury may infer the intent to kill

from the use of a deadly weapon unless it would be unreasonable to infer that death or

serious bodily injury could result from the use of the weapon.20 The Texas Penal Code

defines a firearm as a deadly weapon.21

        In order to prove that appellant committed the offense of aggravated assault under

section 22.02 of the penal code, as alleged in the indictment, the State was required to

prove that (1) appellant (2) intentionally, knowingly, or recklessly (3) caused bodily injury



        15
             T EX . P EN AL C OD E A N N . § 19.02(b)(1), (2) (Vernon 2003).

        16
             Id. § 6.03(a) (Vernon 2003).

        17
             Id. § 6.03(b).

        18
             Brown v. State, 122 S.W .3d 794, 800 (Tex. Crim . App. 2003).

        19
             Guevara v. State, 152 S.W .3d 45, 50 ( Tex. Crim . App. 2004).

        20
          Mosley v. State, 983 S.W .2d 249, 254-55 (Tex. Crim . App. 1998) (citing Ross v. State, 861 S.W .2d
870, 873 (Tex. Crim . App. 1992)).

        21
             See T EX . P EN AL C OD E A N N . § 1.07(a)(17)(A) (Vernon Supp. 2007).

                                                            6
(4) to Juan Hernandez (5) by shooting Hernandez and (6) used or exhibited a firearm

during the assault.22

                                               Discussion

        Appellant’s challenge to the sufficiency of the evidence to support his convictions

is limited to the issue of identity. He argues that the only evidence identifying him as the

shooter is Hernandez’s testimony, and that such testimony is “too weak to support the

verdict.”

        According to appellant, Hernandez’s identification of him is not based on

Hernandez’s personal knowledge, but rather, on Hernandez’s assumption, based on past

events and the “word on the street.” Appellant argues that at the scene of the crime,

neither Ybarra nor Hernandez identified him as the shooter to the police. Appellant also

asserts that Ybarra called his mother immediately after the shooting, but did not say who

had shot him.23

        Appellant also challenges Hernandez’s testimony that Ybarra recognized appellant

at the stop light. Appellant argues that it was dark, the front windows were tinted, and

there would have been insufficient light for Ybarra to recognize appellant in such

circumstances. Appellant argues that Hernandez’s testimony as to where the Expedition

went after the shooting is in “conflict” with Ross’s testimony:                   Hernandez said the

Expedition turned right, but Ross said he did not notice any cars passing on his right.


        22
             See id. § 22.02(a) (Vernon Supp. 2007).

        23
           Ybarra’s m other testified that she learned her son had been shot when she received a phone call
from her son’s girlfriend. The assertion that Ybarra called his m other cam e from Hernandez, who saw Ybarra
using his cell phone. However, Hernandez was approxim ately fifteen feet away from Ybarra and did not hear
the conversation.

                                                       7
       Appellant argues that the police were unable to connect him to an Expedition. He

also argues that the path of the wound to Ybarra’s right arm was “horizontal,” which is

“inconsistent with a shot being fired from a position higher than the target.” Finally,

appellant contends that the shots were not fired at Hernandez because Hernandez was

looking out the rear passenger window and the shots were directed to the front passenger

side of the vehicle. We address appellant’s arguments in turn.

       As to appellant’s argument that Hernandez’s identification of him was based on an

“assumption,” and not “personal knowledge,” we disagree. Regardless of what Hernandez

believed about whether appellant had stabbed him in the earlier fight, Hernandez positively

identified appellant at trial (“[n]o doubt in my mind”) as the person who fired the shots.

Hernandez also testified that he identified appellant by his tattoo and picked him out of a

six-person line-up.

       As to appellant’s contention that Hernandez did not identify appellant to police at the

scene of the crime, Hernandez testified that at the hospital, he asked to speak to a police

officer and told the officer that appellant was the shooter. Appellant stated, “I told [the

officer at the hospital] to contact [the detective who investigated the stabbing] because this

was to regards to [sic] Barboza. That’s who it was. I told him who it was. I told him what

he was driving.” Detective Harrison confirmed Hernandez’s testimony by stating he had

interviewed Hernandez at the hospital and that Hernandez said appellant had shot him.

Harrison also noted that he was sent to the hospital as a gang investigator, and that

people questioned by the gang investigators often spoke more freely with investigators

than with other police officers.

       With regard to appellant’s argument that Ybarra could not have identified him

                                              8
because it was dark and Ybarra was looking through the front tinted windows, we note that

Hernandez stated on cross-examination that it was “very bright” because there is a light at

the corner of the intersection. Hernandez also stated that they always rode “with the seats

laid back,” and that he leaned back, and began arguing with appellant. When asked who

he saw in the car, Hernandez stated, “I saw Barboza and that Expedition.”

       We are also unpersuaded that Hernandez’s testimony that the Expedition turned

right is in conflict with Ross’s testimony that he did not see any vehicles passing on the

right. Ross testified that after the shots were fired and Ybarra’s vehicle pulled around and

through the intersection, he “went straight” and “said we are out of here because I know

what I heard.” Ross stated he “did not see any vehicles speed away because of my car

being so low to the ground and other vehicles to the right of me, I can’t tell what was on the

other side of those vehicles.” We conclude Ross’s testimony is not inconsistent with

Hernandez’s testimony or Ketchum’s testimony that the Expedition left the scene.

       Appellant argues that the “horizontal” trajectory of the gunshots is inconsistent with

the shots being fired from an Expedition, which would place the shooter higher than

Ybarra’s vehicle. However, Dr. Ray Fernandez, a Nueces County medical examiner that

performed an autopsy on Ybarra, testified that the overall direction of the gunshot wounds

was “right to left and downward.” When asked if the gunshot “started higher than it ended

up,” Dr. Fernandez stated, “[t]hat’s correct.” Specifically, Dr. Fernandez was asked:

       Q [the State]: Based on what you observed in the wound track, would you
       say that what you saw was consistent with this man being shot from his right
       side, from someone sitting slightly higher than him, consistent with him being
       the driver of a sedan type vehicle being shot by someone in a higher level
       SUV?

       A [Dr. Fernandez]: Someone to his right somewhere, that’s correct.

                                              9
       Finally, appellant argues that Hernandez’s testimony that he was exchanging words

with appellant by looking out the rear passenger window is inconsistent with the gunshots

being directed at the front passenger side rather than Hernandez. We disagree. Officer

Cabello testified there were two shots in the passenger side window and two in the

passenger side door. When asked if the Expedition was “right up besides you,” Hernandez

testified it was “a little bit off” or “offset.” We do not find the bullet holes in the passenger

side window and door inconsistent with Hernandez’s testimony.

       We again note that the jury was free to accept or reject all or any portion of a

witness’s testimony.24 We may not substitute our own determination for that of the jury.25

Based on the record evidence, we conclude the jury could have rationally found that

appellant shot Ybarra and Hernandez. Viewing the evidence under the proper standard,

we conclude it is factually sufficient to support appellant’s convictions for murder and

aggravated assault. Appellant’s sole issue is overruled.

                                                Conclusion

       We affirm the trial court’s judgment.



                                                            LINDA REYNA YAÑEZ,
                                                            Justice


Do not publish. TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 29th day of August, 2008.


       24
            Penegraph, 623 S.W .2d at 343; Ozuna, 199 S.W .3d at 605.

       25
            Ortiz v. State, 93 S.W .3d 79, 87-88 (Tex. Crim . App. 2002).

                                                      10
