/3M3-/ST
NO.
IN THE
j\\ \ oil vnL
COURT OF CRIMINAL APPEALS
OF TEXAS
FRANCISCO ARZATE,
(Appellant/Petitioner)
V.
THE STATE OF TEXAS,
(Appellee/Respondent)
APPELLANT/PETITIONER'S PRO SE
PETITION FOR DISCRETIONARY REVIEW
RECEIVED
In Appeal No. 01-12-01074-CR
COURT OF CRIMINAL APPEALS
from the DEC 28 2015
Court of Appeals
Abe! Acosta, Clerk
for the First Judicial District
Houston/ Texas
( ORAL ARGUMENT REQUESTED )
• FILED IN
COURT OF CRIMINAL APPEALS
Francisco Arzate
r; TDCJ# 1821766
3001 ,S. Emily Dr.
Abs! Acorta, Clerk
Beeville, TX 78102
l.
TABLE OF CONTENTS
INTERESTED PARTIES iii.
INDEX OF AUTHORITIES iv.
STATEMENT REGARDING ORAL ARGUMENT -\ 1-
STATEMENT OF THE CASE 2.
STATEMENT OF PROCEDURAL HISTORY • 3.
GROUNDS FOR REVIEW . .4.
GROUND FOR REVIEW NUMBER ONE:Whether untested voice identificaion
constitutes "eyewitness identification" which satisfies the 5th and
14th Amendment Due Process requirement of proving the element of
identity beyond a reasonable doubt under the "Biggins" standard?
GROUND FOR REVIEW NUMBER TWO: Whether the 5th and 14th Amendment
Due Process requirement of proving identity beyond a reasonable
doubt can be satisfied by using the State's theories and inter
pretations deduced from the uncorroberated testimony of the State's
witness' as "legally sufficient evidence" in the appellate review?
GROUND FOR REVIEW NUMBER THREE: In cases based soley on un
uncorroberrated testimony, is it error for the appellate court to
deem this testimony as "circumstantial evidence" by speculating
on what inferences,if any, were drawn by the jury in order to
satisfy the court's own standards?
ARGUMENTS ONE THROUGH THREE 5-9
PRAYER FOR RELIEF 9
CERTIFICATE OF SERVICE 10.
APPENDIX "A" • •
^Memorandum Opinion)
li.
INTERESTED PARTIES
TRIAL JUDGE
Hon. Mary Lou Keel
232nd District Court of Harris County
APPELLANT
Francisco Arzate #1821766
3001 S. Emily Dr.
Beeville, TX 78102
TRIAL COUNSEL
Anthony Osso, Mario Madrid
440 Louisiana, Suite 1125
Houston, TX 77002
APPELLATE COUNSEL • x
J.Sidney Crowley
214 Morton St.
Richmond,TX 77469
STATE OF TEXAS
Devon Anderson
District Attorney, Harris County
1201 Franklin St.
Houston, TX 77002
Tina Ansari
Assistant District Attorney
Harris County, TX
Charles Brodsky
Assistant District Attorney
Harris County, TX
in.
INDEX OF AUTHORITIES p
Aston v. State, 656 S.W.2d 453,456-58
(Tex, Crim.App. 1983) 8
Barley v. State,906 S.W-2d 27
(Tex. Crim.App. 1995) 7
Ex parte Amerquite,223 S.W.3d 363,364 .. .5
Ex parte Anderson,902 S.W.2d 695,699
(Tex. App. -Austin 1998) 9
In re Winship,397 U.S.358,377, 25 L.Ed.2d 368,
90 S.Ct.1068 8
Jackson v. Virginia,443 U.S.307, 99 S.Ct.2781
(1979) 8
Moreno v. State,755 S.W.2d 866,867
(Tex. Crim.App. 1988) 8
Neil v. Biggins, 409 U.S.188 4
Page v. State,125 S.W.3d 640 6
Paulson v. State,991 S.W.2d 907,911
(Tex.App.-Houston[14th Dist.] 1999] 8
Perry v. State,669 S.W.2d 794 5
People v. Caruso,68 Cal.2d 183,Cal.Rptr.336,340, 436 P.2d 336,340
(1968) 7
Simmons v. U.S.,390 U.S.377, 88 S.Ct.967
(1968). . 6,7
State v. Cotton, 318 N.C.663, 351 S.E.2d 277
(1987) 5
State v. Youngblood, 153 Ariz.50, 734 P.2d 592
(Ariz.Ct.App.1986). . 5
Salinas v. State,163 S.W.3d 734,737
(Tex.Crim.App.2005). ... 8
United v. Wade,388 U.S.218,228-29,S.Ct.1967 5
Wesbrook v. State,29 S.W.3d 103,111
(Tex. Crim.App. 2005) 8
Statutes & Constitutions
U.S.C.A. Const.Amends 5 and 14 5
Texas Penal Code §2.01 8
Texas Code of Criminal Procedure art.38.03 8
Texas Government Code § 311.011(a) 8
IV.
NO.
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
FRANCISCO ARZATE,
(Appellant/Petitioner)
THE STATE OF TEXAS,
(Appellee/Respondent)
APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant/Petitioner respectfully submits this Petition for
Discretionary Review and moves that this Honorable Court grant
review of this cause and offers the following in support thereof
STATEMENT REGARDING ORAL ARGUMENT
The Appellant/Petitioner requests oral argument in this case
because such argument may assist the Court in applying facts to
the issues raised. It is suggested that oral argument may help
simplify and clarify the facts and issues which may not be
presented clearly in written form since Appellant/Petitioner is
not a lawyer or paralegal and has no training in written form
communication.
STATEMENT OF THE CASE
This is a capital murder case with a mandatory life sentence
based on the finding of guilt by the jury. Arzate was represented
by court appointed counsel at trial and on appeal. On Appeal the
appellate counsel raised a single point of error that identity
by voice recognition alone was insufficient legally and factually
to support the verdict of guilt for Capital Murder. This case is
distinguished by tha fact that the "evidence" used to support the
verdict consisted entirely of the State's theories and interpreta
tions of untested and uncorroberated testimony. Petitioner is
not a lawyer or paralegal and advances these claims pro se.
STATEMENT OF PROCEDURAL HISTORY
Arzate was convicted of Capital Murder in the 232nd District
Court, Harris County, Honorable Mary Lou Keel presiding. Timely
appeal was taken to the First Court ~of Appeals, Houston. On
December 17,2012 the case was affirmed in an unpublished opinion.
Justices Radack, Bland and Huddle as panel. No Motion for Re-hearing
was filed.
Appellate attorney was found to be ineffective in habeas writ#
1317247-A. The Court of Criminal Appeals granted an out-of-time
Petition for Discretionary Review. The attorney submitted a
Petition for Discretionary Review without proper authorization.
This led to a motion to withdraw the Petition by Petitioner which
was granted along with an extension of time to file a pro se
Petition for Discretionary Review. This Petition is filed within
the time alloted by the Court's extension.
GROUNDS FOR REVIEW
I.
Whether untested voice identification constitutes "eyewitness
identification" which satisfies the 5th and 14th Amendment Due
Process requirement of proving the element of identity beyond a
reasonable doubt under the "Biggins" standard? see Neil v. Biggins,
409 U.S.188)
II-
Whether the 5th and 14th Amendment Due Process requirement of
proving identity beyond a reasonable doubt can be satisfied by
using the State's theories and interpretations deduced from the
uncorroberated testimony of the State's witness as "legally
sufficiant evidence" in the appellate review?
III.
In cases based solely on uncorroberated testimony, is it error
for the appellate court to deem this testimony as "circumstantial
evidence" by speculating on what inferences, if any,were drawn by
the jury in order to satisfy the court's own standards?
4.
(Grounds one through three are argued together for the Court's
convenience and to establish the relevancy of each claim as a whole.)
GROUNDS 1-3
When the State's case is dependant on eye-witness testimony,
there is always the rise that an individual may be convicted of a
crime he or she did not commit, thus, it is a special rule of the
Judiciary to protect the integrity of the Criminal Justice System
by requiring that the State observe basic rules of fairness during
the identification process." Perry v. State,669, S.W.2d 794.
"It is well settled that the Federal as well as Texas Courts
have discerned that eye-witness testimony is inherently unreliable.
The vagaries of eye-witness identification are well known; the
annals of Criminal Law are rife with instances of mistaken ident
ification. United BKgXB& v. Wade, 388 U.S.218,228-29,87 S.Ct.1967.
"eye-witness testimony is implicated in a large percentage of
wrongful convictions, see Bernal v. People,44 P.3d 184,190(Colo.
2002)(citing a study that concluded that "mistaken eye-witness
identification is responsible for more of these wrongful convictions
than all others combined.); State v. Cotton,318 N.C.663, 351 S.E.
2d 277(1987)(wrongful conviction based on eye-witness testimony);
State v. Youngblood,153 Ariz. 50,734 P.2d 592(Ariz.Ct.App.1986)
same. The fact that it happens to be eye-witness identification
evidence lends support to the argument that eye-witness identifi
cation evidence is among the least reliable form of evidence and
yet persuasive to juries." see Ex parte Amezquite,223 S-W.3d 363,
364.
5.
Suggestiveness of pretrial identification procedure may be
created by manner in which identification procedure is conducted,
such as police pointing out suspect or "suggesting" that the
suspect is included in a line-up or photo array, it may be created
by the content of the line-up or photb array itself." see Page v.
State, 125 S.W.3d 640. (see appendix B taking notj* of the last
paragraph of the written reprt along with the photo lineup.)
The police used suggestive tactics in establishing the identity
testimony. The testimony of Maria was tainted by the unlawful
photo array. While Arzate may well have been considered a
suspect at the time. The suggestive tactics of the police were
used to convert a question of possible suspects into an identific
ation of a perpetrator. The statement made by Maria was in
Spanish and the investigator did not speak Spanish.
"Regardless of how the initial misidentification comes about,
the witness thereafter is apt to retain in his memory the image
of the photograph rather than of the person actually seen, reducing
the trustworthiness of the subsequent courtroom identificat^ion."
see Simmons v. United States,390 U.S.377, 88 S.Ct.967 (1968).
Clearly the identification process has beentainted by the conduct
of the investigator on the night of the incident in question. It
is difficult to determine whether the voice identification is fact
or fiction, the victim's memory? or, the police department's
embellishement.
"In determining whether a very substantial liklihood for -irrep
arable misidentification has been created by pretrial identificat
ion procedure, Court of Appeals weighs corrupting effect of the
suggestiveness against five non-exclusive factors.:
(1) Any discrepency between pre-lineup description and defendant's
actual appearance (2) whether witness identified another individual
prior to allegedly illegal lineup;(3) prio identification of accused
by witness or failure to identify accused prior to suggestive line
up(4) witnesses ability to observe criminal act (5) and amount of
time between crime and illegal lineup." Barley v.State, 906 S.W.2d
27 (Tex.Crim.App.1995) (U.S.C.A.Const.Amend.14).
"We do more than recognize that unfairly constituted lineups
have in the past, too often brought about the conviction of the
innocent. People v. Caruso, 68 Cal.2d 183, Cal.Rptr.336,340, 436,
P.2d 336,340 (1968). In the present case pretrial confrontations
were so arranged as to make the resulting identification virtually
inevitable. This severely corrupted the integrity of the testimony
regarding voice identification which was not corroberated through
any other identification process such as fingerprints or connection
to the cell phone found at the scene. No other identification was
attempted nor was the voice identification "tested" through a line
up as used in "sight" eyewitness credibility.
The suggestive and/or unsupported testing of the voice credibility
employed by the State denied the Applicant a fair trial and also
a fair review on appeal. The voice identification carried great
weight in persuasion of the jury, whereas the jury was unaware of
how unreliable a "eyewitness" testimony can be when tainted by
the state prior to trial.
The Court held that it will decide on a case by case basis
whetfiher suggestive identification gives rise to a substantial
liklihood of a misidentification. Simmons v. U.S,88 SCt.967(1968).
The role of a reviewing court is that of a due process safe
guard, ensuring only the rationality of the trier of facts finding
essential elements of the offense charged beyond a reasonable doubt."
see Moreno v. State, 755 S.W.2d 866,867(Tex.Crim.App.1988). In
a legal sufficiency review the appellate court reviews all the
evidence in the light most favorable to the verdict and determ
ines whether any rational trier of fact could have found the esse
ntial elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S.307, 99 S.Ct.2781(1979); Salinas v. State,163
S.W.3d 734, 737(Tex. Crim.App. 2005) ; Wesbroo.k v. State, 29 S.W.3d 103,
111 (Tex.Crim~,APP.2005) .
Despite its early use in AMerican Jurisprudence the phrase
"reasonable doubt" appears neither in our Federal nor state
constitutions. Paulson v. State,991 S.W.2d 907,911(Tex.App.-Houston
[14th Dist.] 1999); In re Winship, 397 U.S.358,377, 25 L.Ed.2d
368, 90 S.Ct.1068. We know, of course, that the Due Process
Clause of the Fourteenth Amendment to the United STates Consti
tution protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged. Winship,397 at 364.
Article 2.01 of the Texas Penal Code provides: All persons are
presumed innocent and no person may be convicted of an offense ."
unless each element of the offense is proved beyond a reasonable
doubt. The identical language is found in the Code of Criminal
Procedure under Article 38.03. Despite different language in the
past, these statutes and there forerunners have been substantially
the same, see Aston v. State,656 S.W.2d 453m456-58 (Tex.Crim.App.
1983). Neither section 2.01 nor article 38.03 define "reasonable
doubt" for the purpose of the staute or for either code nor did
their statutory forerunners do so. In the absence of special
definitions, statutory language can be measured by common underst
anding and practices or construed in the sense generally understood
• see Ex part Anderson,902 S.W.2d 695,699(Tex.App.-Austin 1995).
Statutory words are to be read in context and construed according
to the rules of grammer and common usage, see Tex.Gov't Code Ann.
§311.011(a).
Petitoiner would show that the Court of Appeals erred in it's
holding that the state proved identity "beyond a reasonable doubt."
Reasonable doubt by common usage would be having a question of
proof that is "reasonable". While it may be reasonable to assume
that Arzate could be identified through voice recognition. The law
requires the level of proof to exceed a "reasonable doubt. The
jury verdict based on untested voice identification and evidecne
that remains uncorroberated is legally insuffcient to support a
capital murder conviciton.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitoiner prays this Honor
able Court will GRANT this Petition for Discretionary Review and
set this case for submission and briefs in support. And further
prays this Court will find that the evidence is legally insufficient
to support a capital murder conviction and reverse the judgement
and enter in its plae an AQUITTAL.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Petition
has been mailed U.S.postage prepaid through the prison mailing
system to The Harris County District Attorneys Office at 1201
Franklin St. Houston, TX 77002 and Lis C. McMinn, State Pros
ecuting Attorney at P.O. Box 13046,Austin, TX 78711-3046
10.
APPENDIX "A"
Memorandum Opinion
*
t
Opinion issued December 17, 2013.
In The
Court of Update
For The
Jftrsrt Bfetrict of GDexasi
NO. 01-12-01074-CR
FRANCISCO ARZATE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case No. 1317247
MEMORANDUM OPINION
Francisco Arzate appeals a judgment convicting him of capital murder for
the shooting of his father-in-law, Guillermo Valdez. See Tex. Pen. Code Ann.
§ 19.03(a)(2) (West Supp. 2013). A jury found Arzate guilty, and the trial judge
sentenced him to life in prison. In his sole issue on appeal, Arzate contends that
the evidence is legally insufficient to support his conviction. We affirm.
Background
Arzate was married to Maria and Guillermo Valdez's daughter, Patricia, for
almost ten years, but he and Patricia had separated two years before the incident.
Patricia and Arzate had five children. Patricia testified that she and Arzate had an
unstable relationship and often fought and that she moved to her parents' home
upon her separation from Arzate. In August 2011, Arzate was upset because he
had recently learned that Patricia was in a relationship with another man. Arzate
had called Patricia upset about her boyfriend and threatened that he would take
action if Patricia did not end that relationship.
Patricia testified that on the day of the incident, August, 19, 2011, she talked
to Arzate about paying school tuition, but they did not fight, and it was a "normal
day." Arzate left a voicemail on Patricia's phone around 11:30 p.m. that night
saying that "he was suffering so [Patricia was] going to suffer the same way that he
was suffering." Patricia was at the hospital with her oldest son that night, but she
called her sister because the voicemail worried her. A few minutes later, Maria
called Patricia and told her that Arzate had shot Maria and Guillermo.
Although Patricia was not at her parents' home at the time of the shooting,
several others were. Maria testified that she and Guillermo were in their bedroom
watching television with the door closed late at night when Maria heard a noise.
Guillermo opened the bedroom door, Maria heard Arzate say "he was going to kill
us," and Arzate began shooting at Maria and Guillermo. Maria testified that she
had heard Arzate's voice on many occasions and immediately recognized it. Maria
also testified that she saw the side of the shooter's body and it looked like Arzate.
On the night of the shooting, Maria told police that she saw only the shooter's
shadow, and not the shooter's face.
Guillermo and Maria's other daughter, Elizabeth, was also at the scene.
She had fallen asleep in one of the bedrooms a little after midnight, but she woke
up when she heard Arzate screaming in Spanish from the living room several
times, "where's the bastard?" Elizabeth then heard gunshots and Maria screaming,
so she ran to the living room and saw that the front door, which had been closed
and locked, was open and appeared to have been forced open. She saw that
Guillermo was lying on his back—shot more than once—and Maria was bleeding.
When Elizabeth saw Maria, Maria was screaming, "why Francisco, why?" and
Elizabeth believed that Maria was referring to Arzate. Elizabeth did not see the
shooter, but she testified that there was no doubt in her mind that the voice she
heard yelling "where is the bastard?" was the voice of Arzate.
Elizabeth's thirteen year old son, Heron, was also home and sleeping on the
living room couch when the shooting took place. Heron testified that he also heard
Arzate yelling, "where was the bastard at?" Heron did not see Arzate on the night
of the shooting, but recognized his voice because he had often visited Arzate's
house. Heron also testified that he heard Maria say, "why Francisco, why?"
By the time police and EMS arrived, Guillermo was dead from four gunshot
wounds. Arzate called Patricia after the incident, but she did not answer.
The day after the shooting, Arzate called his employer, Richard Gonzalez,
and told him "that he wasn't going to be coming in because he had an issue,
something happened with his family and he doesn't know if he's ever going to
come back." Gonzalez testified that during the same phone call, Arzate also said,
"what happened happened."
The police suspected Arzate was the shooter and that he had fled to Mexico
shortly after the shooting. Arzate's brother and sister testified that Arzate went to
Mexico but added that the trip was a planned vacation to visit family. Patricia
testified that this was Arzate's first trip to Mexico and that he would not have
vacationed there because he did not have documentation that would allow him to
re-enter the United States.
A few months after the shooting, Arzate sent Patricia a text message that
said, "I'm sorry. Are you guys okay. Are my kids okay." Patricia testified that
Arzate also called her from Mexico. In one such call, Arzate, who had said he was
angry that Patricia was not taking his calls, threatened Patricia by saying that "The
same thing that he did to [her] dad he was going to do it to [her] grandma, that he
knew where she lived and he was going to go over there and get her also."
Patricia also testified that Arzate attempted to have her create an alibi for
him. In a letter, Arzate wrote: "do it for our children and for the love we had
between us. You know it wasn't my fault about your father. Why do you want to
take your children's father away." The letter continued: "If you feel something in
your heart you tell the lawyer that I was in Mexico."
Arzate also called Gonzalez and threatened that Gonzalez would suffer the
same fate as Guillermo. When Arzate left for Mexico, Arzate had left his car and
tools with Gonzalez. Gonzalez testified that Arzate told him that if Gonzalez did
not pay Arzate's brother for the vehicle and his tools, that he "was going to kill me
and come after my family." Gonzalez testified that Arzate added, "If you don't
believe me you saw what happened to my in-laws."
Discussion
In his sole point of error, Arzate contends that the evidence is legally
insufficient to support his conviction. Specifically, Arzate argues that a rational
jury could not have found him guilty based solely upon voice identification, which
he argues is less reliable than eyewitness identification.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. McGregor v. State, 394 S.W.3d 90, 109 (Tex. App.—Houston [1st Dist.]
2012, pet. ref d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99, S.Ct. 2781,
2789 (1979)); see also Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App.
2011) (holding Jackson standard is only standard to use when determining
sufficiency of evidence). Our review of "all of the evidence" includes evidence
that was properly and improperly admitted. McGregor, 394 S.W.3d at 110
(quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Id. (citing Bartlett v. State,
270 S.W.3d 147, 150 (Tex. Crim. App. 2008)). A jury may accept one version of
the facts and reject another, and it may reject any part of a witness's testimony. Id.
(citing Sharp v. State, 101 S.W.2d 611, 614 (Tex. Crim. App. 1986)). We may not
re-evaluate the weight and credibility of the evidence or substitute our judgment
for that of the fact finder. Id. (citing Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007)). We afford almost complete deference to the jury's
determinations of credibility and we resolve any inconsistencies in the evidence in
favor of the verdict. Id. (citing Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.
App. 2008); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).
B. Applicable Law
A person commits capital murder when he commits murder under section
19.02(b)(1) of the Penal Code and "commits the murder in the course of
committing or attempting to commit . . . burglary." Tex. Pen. Code Ann.
§ 19.03(a)(2). A person commits the offense of burglary if, "without the effective
consent of the owner," the person "enters a building or habitation and commits or
attempts to commit a felony, theft, or assault." Tex. Penal Code Ann.
§ 30.02(a)(3) (West 2011). Under section 19.02(b)(1), a person commits murder if
he intentionally or knowingly causes the death of another person or intends to
cause serious bodily injury and commits an act clearly dangerous to human life that
causes the death of another. Tex. Penal Code § 19.02(b)(1), (2) (West 2011);
Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013).
A murder conviction may be based on circumstantial evidence. Temple,
390 S.W.3d at 359 (citing Clayton, 235 S.W.3d at 778). "Circumstantial evidence
is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt." Id. (quoting
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In circumstantial
evidence cases, it is not necessary that every fact and circumstance point directly
and independently to the defendant's guilt; it is enough if the conclusion is
warranted by the combined and cumulative force of all the incriminating
circumstances. Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993)).
C. Analysis
To prove that Arzate is guilty of capital murder, the State had to prove
beyond a reasonable doubt that Arzate, in the course of a burglary or attempted
burglary, knowingly or intentionally caused Guillermo's death or intended to cause
Guillermo serious bodily injury and committed an act clearly dangerous to human
life that caused Guillermo's death. See Tex. Penal Code Ann. §§ 19.02(b)(1);
19.03(a)(2).
We conclude the evidence supports the jury's guilty verdict. First, three
witnesses who had known Arzate for years identified Arzate as the shooter based
on his voice. Maria testified that she heard Arzate say "he was going to kill us"
and then the shooter began shooting at her and Guillermo. Elizabeth testified that
it was Arzate who screamed "where's the bastard" right before she heard gunshots.
Heron also testified that it was Arzate who yelled those words. Voice identification
is an acceptable means of identification and has been held sufficient to support a
conviction. See Locke v. State, 453 S.W.2d 484, 485 (Tex. Crim. App. 1970)
("Voice is a competent means of identification if the witness had any previous
acquaintance with the person identified"); Davis v. State, 180 S.W.3d 277, 285-86
(Tex. App.—Texarkana 2005, no pet.) (holding voice identification sufficient to
support conviction).
Second, Arzate's conduct after the murder indicates consciousness of guilt.
There is evidence that Arzate was in Mexico after the shooting, despite the fact that
he had not previously traveled to Mexico because his immigration status made it
impossible for him to return. Gonzalez testified that Arzate told him the day after
the murder "something happened with his family and he doesn't know if he's ever
going to come back."
Finally, there is evidence that Arzate implicitly admitted shooting
Guillermo, explicitly asked Patricia to create an alibi for him, and threatened both
Patricia and Gonzalez that their relatives would meet the same fate as Guillermo if
his demands were not met. Patricia testified that Arzate sent her a letter asking
Patricia to lie about his whereabouts on the night of the shooting. Patricia also
testified that a few months after Guillermo's murder, Arzate sent her a text
message stating that he was "sorry" and that Arzate also called her from Mexico
and threatened to do the "same thing" to her grandma that he did to Guillermo.
Gonzalez testified that Arzate called him several times after the murder and during
one call threatened to kill Gonzalez and go after his family if Gonzalez did not pay
Arzate's brother. Gonzalez testified that Arzate substantiated the threat by saying,
"if you don't believe me you saw what happened to my in-laws. What do you think
is going to happen to you[?]" And, in a voicemail Arzate left Patricia on the night
of the shooting, he warned that he was going to make her suffer like she was
making him suffer.
Arzate contends that the State's failure to present an eyewitness identifying
Arzate or physical evidence—such as fingerprints, DNA, or ballistic evidence—
linking Arzate with the shooting renders the evidence insufficient. But, the lack of
physical evidence, such as fingerprints, footprints, or DNA, does not render the
evidence supporting a conviction insufficient. Harmon v. State, 167 S.W.3d 610,
614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref d). Similarly, eyewitness
identification is not required for a conviction. Green v. State, 124 S.W.3d 789, 792
(Tex. App.—Houston [1st Dist.] 2003, pet. refd) (eyewitness identification is not
necessary to identify perpetrator). The lack of eyewitness testimony and physical
evidence were factors for the jury to consider in weighing the evidence, and we
defer to the jury's resolution of these issues. See McGregor, 394 S.W.3d at 110.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational juror could have found that during the course of committing a
burglary, Arzate intentionally or knowingly caused Guillermo's death or intended
to cause his death and committed an act clearly dangerous to human life that
caused his death. Accordingly, we hold the evidence was legally sufficient to
10
support the judgment. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.
1994) ("Evidence of flight or escape is admissible as a circumstance from which an
inference of guilt may be drawn."); Mclnturfv. State, 544 S.W.2d 417, 419 (Tex.
Crim App. 1976) (holding voice identification is direct evidence, which may
constitute sufficient basis for conviction, and testimony about voice identification
is question of fact for jury); Kesaria v. State, 148 S.W.3d 634, 640-41 (Tex.
App.—Houston [14th Dist.] 2004) (holding evidence was sufficient to establish
defendant's identity to support burglary of habitation conviction where victims
unequivocally identified defendant as man who burglarized home in part because
they recognized his voice), aff'd, 189 S.W.3d 279 (Tex. Crim. App. 2006).
We overrule Arzate's sole point of error.
Conclusion
We affirm the trial court's judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).
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