Marcos Lara Guerra v. State

Opinion issued September 30, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00869-CR MARCOS LARA GUERRA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 937252 MEMORANDUM OPINION A jury found appellant, Marcos Lara Guerra, guilty of the offense of capital murder and, after making a deadly weapon finding, assessed his punishment at imprisonment for life. In his sole point of error, appellant challenges the factual sufficiency of the evidence to sustain his conviction. We affirm. Facts On August 5, 2001, Santos Velasquez, the complainant, and Marlen Sosa parked their car in their apartment complex parking lot around 10:00 p.m. Velasquez walked to the apartment and Sosa stayed behind to roll up the car windows. As Sosa made her way to the apartment, a man approached her, grabbed her purse, and ran off. Sosa screamed, and Velasquez chased the man in the parking lot while Sosa followed them. Sosa identified appellant as the person who stole her purse. Meanwhile, Baldimar Lazo, a resident of the complex and an acquaintance of Velasquez, was standing in the parking lot with some friends when he saw Velasquez chasing a man he testified to be the appellant. Lazo testified that the appellant unsuccessfully tried to start the car. Lazo, who was about 15 feet away from the driver’s side door, saw Velasquez trying to stop appellant from driving away. When Velasquez reached for appellant, appellant pulled out a gun and shot Velasquez in the torso area. Velasquez collapsed to the pavement and died a few moments later while appellant fled the scene on foot. Both Lazo and Sosa provided a description of the suspect to police; both described the suspect as wearing dark pants, dark boots, a hat, and a long-sleeved shirt. Lazo and Sosa differed in their description of the color of the suspect’s shirt and the type of hat he was wearing. On the night of the murder, a few blocks from the apartment complex, police arrested a suspect, not appellant, who was carrying a pistol. The suspect’s picture was placed in a photo spread, but neither Lazo nor Sosa identified the suspect or any one else from the photo-spread as the shooter. The suspect also had an alibi; and the pistol police recovered from the suspect did not match the one that had fired the shell casing found at the scene of Velasquez’s murder. Ten days after the murder, Sosa assisted a forensic artist in creating a sketch composite of the assailant. A sergeant working with the Houston Police Department recognized the man in the sketch and provided the investigators with a photograph of appellant. Houston Police Officers investigating the case noted the similarities between the sketch and the photograph and considered appellant a suspect. In March, 2002, more than seven months after the murder, police discovered that appellant was in custody on an unrelated matter. Appellant was placed in a video line-up that was shown to both Lazo and Sosa separately; both identified appellant as the man who killed Velasquez. At trial, appellant presented an alibi, Martin Rodriguez testified for the defense. He testified that he had known appellant for a long time and that, in June 2001, appellant told him he was going back to Mexico. From June until November 2001, Rodriguez received more than ten telephone calls from the appellant; he stated that his “caller ID” registered these phone calls as “out of area” just as when he receives calls from his relatives in Mexico. Rodriguez testified that he believed that appellant made these calls from Mexico, but he conceded that he had no personal knowledge of appellant’s whereabouts on the date of the murder and no personal knowledge as to whether appellant was indeed in Mexico from June to November of 2001. Discussion In his sole point of error, appellant contends the evidence is factually insufficient to support his conviction because the two eyewitnesses who identified him as the perpetrator were not credible, while a credible witness testified he could not have committed the offense. We review the factual sufficiency of the evidence by reviewing all the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Court of Criminal Appeals has recently stated There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted). We must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant contends that the evidence is factually insufficient because (1) the two eyewitnesses who identified him as the person who committed the offense offered significantly different testimonies as to the facts of the case; (2) there was a substantial lapse of time between the offense and time of identification; (3) there was no evidence that any of the prints recovered from the vehicle used by the shooter in an attempt to escape matched appellant’s fingerprints; and (4) a witness testified that appellant was in Mexico at the time of the offense. However, both Lazo and Sosa testified that they could clearly see the appellant’s face at the time of the murder. They both provided descriptions of the assailant to police that were very similar. Furthermore, Lazo and Sosa were not swayed in the surety of their identification by the arrest of an innocent man on the night of the murder and an array that did not contain appellant’s photo, and they did not identify any person but appellant as the assailant. Shortly after the crime occurred and prior to any line-up or photo array, Sosa helped police create a sketch of the assailant that looked remarkably similar to appellant. Lazo and Sosa separately identified appellant in a line-up. At trial, both made an in-court identification of appellant as the assailant and both testified that they were “sure” or “positive” that appellant was the man who shot and killed Velasquez. Texas courts have held that the positive identification of a defendant as the perpetrator is alone sufficient to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Ford v. State, 509 S.W.2d 317, 318 (Tex. Crim. App. 1974). In addition, Norman Kiesewetter of the Houston Police testified that it would be possible for a person to touch a vehicle and drive it around without leaving sufficient prints to be read by the examiner. Thus, the absence of fingerprints in the truck that would match that of the appellant does not render the facts insufficient for a conviction. Rodriguez’s testimony and the discrepancy in appellant’s clothing description are also not enough to make the evidence factually insufficient to sustain the conviction. When there is conflicting evidence, the jury’s verdict on the matter will generally be regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.—El Paso 1996, pet. ref’d). A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Although Rodriguez testified that he received phone calls from appellant that he believed were made from Mexico, he conceded that he had no personal knowledge of the appellant’s whereabouts on the date of the murder. In such situations, what weight to give to contradictory testimonial evidence is within the sole province of the fact-finder, as it turns on an evaluation of credibility and demeanor. Id. at 408-09. Thus, the fact-finder was free to believe or disbelieve all or any part of the testimony of Rodriguez or of the State’s witnesses. After examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant’s sole point of error. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Chief Justice Radack and Justices Keyes and Alcala. Do not publish. Tex. R. App. P. 47.4.