Micheal Alexis Zuluaga v. State ( 2010 )

Affirmed and Memorandum Opinion filed July 22, 2010

In The

Fourteenth Court of Appeals

NO. 14-09-00157-CR

Michael Alexis Zuluaga, Appellant

V.

The State of Texas, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1000669

MEMORANDUM OPINION

Appellant, Michael Alexis Zuluaga, was convicted of aggravated assault with a deadly weapon and sentenced to 20 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  In a single issue, appellant contends the evidence is factually insufficient to support his conviction.  We affirm.

Factual and Procedural Background

On August 21, 2004, David Gonzalez, the complainant, was sitting outside his home with three friends, Paul Diaz, Henry Carasco, and Javier Pena.  Appellant drove up and stepped out of his vehicle holding a handgun.  Complainant knew appellant because appellant was a former neighbor and acquaintance.  Appellant approached the complainant and shot him at point-blank range.  The complainant was immediately driven to the hospital and recovered from a bullet wound to his chest.  The complainant, Diaz, Carasco, and Pena identified appellant as the shooter.  Approximately two years later, a police officer with the Sugar Land Police Department stopped a vehicle in which appellant was a passenger.  Appellant presented an identification card with an alias, but was properly identified after his arrest.

At trial, the responding police officers testified that each of the witnesses to the shooting identified appellant as the shooter.  The complainant testified that approximately one month before the shooting, appellant phoned the complainant and accused him of harassing appellant’s mother.  The complainant became angry and called appellant a “bitch.”  The complainant testified that when appellant shot him, he said, “You want to call me my bitch,” or “something like that.”

Appellant testified that at the time of the shooting he was in Medellin, Colombia.  Appellant entered the country illegally and was deported as a result of a narcotics conviction in 2002.  Appellant admitted speaking to the complainant by telephone in July 2004, but said he phoned from Colombia.  Appellant accused the complainant of stealing from appellant’s mother and requested that the thefts stop.  Appellant testified that he did not return to the United States until 2005.

Factual Sufficiency of the Evidence

In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730–31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  Id. at 731.  First, when considered alone, the evidence supporting the verdict may be so weak that the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury’s verdict.  Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).  The jury, as the trier-of-fact, is the sole judge of the credibility of witnesses.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  The jury chooses whether to believe all or part of a witness’s testimony.  See id.  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

A person commits aggravated assault if he commits assault and (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2009).  Appellant contends the evidence was factually insufficient to support the jury’s verdict because the State’s evidence “consisted entirely of the testimony of the complainant,” and appellant’s “testimony was cogent and more credible than that of the complainant.”[1]

The complainant testified that appellant shot him at point-blank range.  One of the responding officers testified that three witnesses also identified appellant as the shooter.  Appellant contradicted the complainant’s and the officer’s testimony by testifying that he was in Colombia at the time of the shooting.  Therefore, the jury was faced with conflicting evidence with regard to whether appellant was the shooter. 

This court cannot invade the province of the jury by engaging in a second evaluation of the credibility of the witnesses.  See Muniz, 851 S.W.2d at 246.  Viewing the evidence in a neutral light, we conclude that the evidence is not so weak that the jury’s verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence.  See Watson v. State, 204 S.W .3d 404, 414–15 (Tex. Crim. App. 2006).  Appellant’s issue is overruled.

The judgment of the trial court is affirmed.

                                                                        /s/        John S. Anderson

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Because a factual sufficiency review begins with the presumption that the evidence supporting the jury’s verdict is legally sufficient, and because appellant challenges only the factual sufficiency of the evidence, appellant effectively concedes the evidence is legally sufficient to sustain his conviction.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Newby v. State, 252 S.W.3d 431, 435 n.1 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).