Ivan David Colon v. State

Opinion issued December 28, 2006 In The Court of Appeals For The First District of Texas NO. 01-06-00306-CR IVAN DAVID COLON A/K/A FERNEY CUESTA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 1026655 MEMORANDUM OPINION A jury found appellant, Ivan David Colon a/k/a Ferney Cuesta, guilty of murder and assessed punishment at confinement for life. In his sole issue on appeal, appellant contends that the evidence is factually insufficient to support his conviction. We affirm. BACKGROUND On Christmas Eve 2004, Montgomery Barrett and his friend, William Rivera, decided to go to a club in Houston. The two picked up Barrett's sister, Jacqueline, and the three eventually stopped at Club Salsero on Richmond Avenue at approximately 1:30 a.m. They stayed inside until the club closed at 3:00 a.m. Jacqueline went to get the car, while Barrett and Rivera waited near the front door. As they waited, Barrett and Rivera began talking to two women who were seated inside a black Ford Escape SUV. The younger of the women, who was seated in the back seat, warned Barrett and Rivera that her uncle was "real jealous" and "kind of crazy." Appellant then came around the vehicle and began arguing with Rivera, who was standing closest to the vehicle. Appellant and Rivera argued for a few moments, then appellant went to the driver's side of the vehicle, reached across into the glove compartment, and pulled out a silver revolver. The woman sitting in the front seat grabbed appellant's arm, but was unable to stop him. Barrett began running away, but appellant chased after him. The men ran between the cars in the parking lot before Rivera finally turned to face appellant. The men struggled over the gun, and appellant fired the gun twice. Rivera staggered and fell. Appellant then walked over and shot Rivera several more times as Rivera lay on the pavement. Appellant yelled, "I told you not to get with me," and then drove off in a black car. Julian Hernandez, a security guard at the Club Salsera, witnessed the event. He saw Rivera and a man he identified as appellant arguing outside the club, and wrote down the license plate number of the SUV. Hernandez approached appellant and asked if there was a problem. Hernandez's attention was momentarily diverted to another car, and when he looked back, appellant had pulled out a gun. Hernandez said that appellant fired once in the air and then fired a second time, striking Rivera. Rivera tried to run, but fell. Appellant then shot Rivera two more times as he lay on the ground. The police traced the license plate number that Hernandez had obtained to Melissa Rivera, appellant's wife. The police then prepared a photospread to show to Hernandez. Hernandez positively identified appellant as the shooter he had seen at the club that night. Based on Hernandez's positive identification, the police obtained a warrant and arrested appellant. Hernandez also positively identified appellant at trial. At trial, appellant, testifying on his own behalf, stated that he did not go out on Christmas Eve, but spent it drinking with a friend named "Nelson," at Nelson's house. Appellant said that the two men drank until about 4:30 a.m., at which time he went to sleep. He testified that they got up on Christmas Day at around 3:00 p.m. and began drinking again. However, on cross-examination, appellant admitted that he was in Mexico on Christmas day and that he was "sent back" to Brownsville because he did not have the proper documentation to enter Mexico. FACTUAL SUFFICIENCY In his sole point of error, appellant contends the evidence is factually insufficient to support his conviction. Specifically, he argues that the identification evidence is insufficient because Hernandez did not identify him in the photospread until eight months after the shooting, and no other witnesses were able to positively identify him as the shooter. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not reweigh the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. In this case, Hernandez, the security guard, identified appellant as the shooter both at trial and in a photospread shown to him by the police. He testified that the light in the parking lot was good and that he could see what was happening. Hernandez testified that he was sure appellant was the shooter "[b]ecause when it happens, it stays in your mind. It just locks in." Although Barrett and Jacqueline were not able to positively identify appellant as the shooter, Barrett admitted that he was intoxicated that evening and Jacqueline testified that appellant "looked familiar." No one identified anyone other than appellant as the shooter. Appellant relies on Ward v. State, 48 S.W.3d 383 (Tex. App.--Waco 2001, pet. ref'd), which we find distinguishable. In Ward, a truck driver was robbed in a convenience store by a black man wearing a tan sports jacket, no shirt, and a plastic cap with a baseball cap over it. 48 S.W.3d at 385. A customer saw someone running away from the store after the robbery, but testified that the person he saw was not the defendant, but another ma, named "Nate." Id. Additionally, four of the defendant's coworkers testified that he was at work the day of the robbery. Id. at 386. Nevertheless, at trial, the complainant and a store employee identified appellant as the robber. Id. The court of appeals held that the evidence was factually insufficient to support the defendant's conviction because the time line was unlikely, the events did not "make sense," there was no evidence of a motive, the State never challenged the appellant's alibi defense, and there was another plausible suspect. Id. at 391. In contrast, in this case, a disinterested witness identified appellant as the murderer. The vehicle from which the murderer retrieved the weapon was registered to appellant's wife. The State did challenge appellant's alibi evidence. Appellant first testified that he was at "Nelson's" house on Christmas Eve and the following day. However, on cross-examination, appellant admitted that he was in Mexico on Christmas Eve and that he was detained and sent back to Brownsville the next day. In fact, the jury could have considered appellant's attempted flight to Mexico as evidence of his guilt. See Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (noting that evidence of flight shows a consciousness of guilt of crime for which defendant is on trial); Santos v. State, 961 S.W.2d 304, 305 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) (noting that admissibility of flight to prove consciousness of guilt is long-established rule). The State also introduced evidence of a motive--Rivera was talking to the women in the black SUV and one of the women said that her uncle was "real jealous" and "kind of crazy." Finally, we note that there was no other plausible suspect, as there was in Ward. Based on the record before us, we cannot conclude that (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.2(b).