                             NUMBER 13-10-00583-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

CARLOS ARIAS,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                      Appellee.


                      On appeal from the 130th District Court
                          of Matagorda County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Carlos Arias challenges his conviction for aggravated assault with a

deadly weapon.    See TEX. PENAL CODE ANN. ' 22.02 (West Supp. 2010) (defining

aggravated assault); see also id. § 22.01 (West Supp. 2010) (defining assault). Arias

pleaded not guilty.    Tried to a jury, Arias was found guilty.   He was sentenced to
eighteen years in the Institutional Division of the Texas Department of Criminal Justice

and assessed a $2000 fine.             By one issue, Arias contends that the evidence was

insufficient to convict him. We affirm.

                                           I. BACKGROUND1

        It is undisputed that Angela Irene Mendoza and others, including acquaintances

America Lopinto and Martha Longoria, were at the Tropicana Bar in Matagorda County,

Texas, shooting pool and having drinks on the night of July 22, 2008.                           Following

confrontations with a group of men, which included Arias, Mendoza was stabbed twice in

the neck with a broken beer bottle. Although a number of patrons of the bar that night

were not interviewed and no photograph or video was taken of the crime scene, four

eyewitnesses, including Mendoza, Lopinto, Longoria, and Ricky Matura, a security guard,

were interviewed. Arias was indicted for aggravated assault and, after a jury trial, found

guilty of the charged offense. This appeal followed.

                                      II. STANDARD OF REVIEW

        In a legal sufficiency review, we consider the entire trial record to determine

whether, viewing the evidence in the light most favorable to the verdict, a rational jury

could have found the accused guilty of all essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); see Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of
        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.

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fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts." Padilla v. State, 326 S.W.3d

195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443 U.S. at 319).

       The trier of fact then 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 "may not re-evaluate the weight and credibility of the record evidence and thereby

substitute our judgment for that of the [fact-finder]."      Williams, 235 S.W.3d at 750.

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).

       Legal 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). In this case,

Arias committed aggravated assault if he committed an assault and caused serious bodily

injury to Mendoza with a deadly weapon. See TEX. PENAL CODE ANN. ' 22.02; see also

id. § 22.01.

                                      III. DISCUSSION

       By his sole issue, Arias contends that the evidence presented at trial was not

sufficient to establish beyond a reasonable doubt that he committed the offense of

aggravated assault with a deadly weapon. Arias claims that no independent evidence

was presented to link him to the commission of the crime although he was present at the

scene of the crime.
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       Arias asserts that the verdict was decided against the great weight of the evidence.

He highlights the following undisputed facts, which he claims support this contention: (1)

Arias was at the bar with other men dressed in work clothes, like he was; (2) all parties

involved had been consuming alcohol; (3) Arias had not acted out violently with anyone

else in the bar; (4) after Mendoza was stabbed, a group of men left the bar and none of

the men were ever questioned; (5) the bottle used to cut Mendoza was never recovered;

(6) the crime scene was not preserved; and (7) none of Mendoza's blood was found on

Arias's clothing. Arias argues that he was convicted without any physical evidence

linking him to Mendoza and with only identifications made by Mendoza's friends who had

been drinking on the night of the offense.

       Relying on Robertson v. State, Arias also asserts that his mere presence at the

scene of a crime is insufficient to sustain his conviction. See 888 S.W.2d 493, 495 (Tex.

App.—Amarillo 1994, pet. ref'd). We agree that Robertson stands for the proposition

that mere presence at a crime scene is insufficient to sustain a conviction. See id.

However, in this case, there is ample evidence, other than Arias's "mere presence" at the

scene, to support his conviction, including the following:

       $      Mendoza testified that she knew it was Arias who grabbed her from behind
              at the bar earlier that evening because she saw him when she turned
              around to confront him, and shoved him and told him to get off of her.
              Mendoza also testified that she saw Arias later when she looked at him as
              he was coming after her with the bottle.

       $      In court, Mendoza identified Arias as the person who came at her, who was
              chased by Lopinto, and who was held by Lopinto and others until the police
              arrived.

       $      Lopinto testified that: (1) Mendoza went over and told one of the men, who
              Lopinto later identified as Arias, to leave Longoria alone when he had tried
              to grab Longoria by the arm and pull her toward him; (2) Arias tried to get to
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               Mendoza to fight her; (3) instead of leaving as he was asked to do by
               Matura and others, Arias walked in front of Lopinto and Mendoza, went "up
               to the cigarette machine and [got] a beer bottle," "grabbed it by the neck,"
               "broke it . . . [o]n the machine," and "went after her"; (4) "[Mendoza] was
               standing with her back facing [Arias], and she felt him like coming towards
               her. And she turned, and he jabbed her twice in the neck with the beer
               bottle. . . . She turned just in time—you know, she was turning this way to
               look at him. . . . He stabbed her twice in the neck"; (5) Arias "took off"; and
               (6) Lopinto caught Arias running out, "grabbed him by the shirt and threw
               him on the street, and started hitting him with [her] shoe."

       $       Lopinto provided an in-court identification of Arias as the man who stabbed
               Mendoza. Lopinto testified that "[she] saw every move he made."

       $       Lopinto also identified Arias in a photo lineup at the police station on the
               night of the attack.

       $       Longoria testified that she observed the confrontation between Mendoza
               and Arias at the Tropicana Bar that night. After the men were told to leave,
               Longoria saw a man pick up his bottle, heard him break it, and then saw him
               start slashing and get to Mendoza. In court, Longoria identified Arias as
               that man. She also heard Mendoza say, "He cut me." In addition,
               Longoria testified, in court, that Arias was the man who was detained by
               Matura and other men in the bar and taken into custody—the same man
               who stabbed Mendoza.

       $       Matura testified that some men were bothering the girls that night and that
               one of the men was Arias. After they were asked to leave because of their
               continued behavior, something happened. According to Matura, while he
               was outside "the door slammed open and all these guys took off running
               outside." Matura did not know what happened until Lopinto "came out and
               started pointing her finger and hollering, "Stop, stop, stop. . . . Stop him.
               He just stabbed Irene." Matura helped detain Arias until the police arrived.
               During that time Arias told him, "Please, please, I'm sorry, you know, please
               let me go. Please don't call the cops." Matura noticed that Arias had
               blood on his hand and "a little bit on his shirt."

       Considering the entire trial record, viewing the evidence in the light most favorable

to the verdict, and giving "full play to the responsibility of the trier of fact fairly to resolve

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

basic facts to ultimate facts," we conclude that a rational jury could have found beyond a

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reasonable doubt that Arias was the person who committed the assault, the element of

the offense being challenged in this appeal.        See TEX. PENAL CODE ANN. ' 22.02;

Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899; Padilla, 326 S.W.3d at 200; Laster,

275 S.W.3d at 517; Williams, 235 S.W.3d at 750. We overrule Arias's sole issue.

                                    IV. 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
16th day of June, 2011.




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