Opinion issued December 17, 2013 .

In The 

## Court of Appeals For The 

## First District of Texas

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NO. 01
- 12
- 01074
- CR

——————————— FRANCISCO ARZATE , Appellant V. THE STATE OF TEXAS , Appellee
On Appeal from the 232nd District Court Harris County, Tex as Trial Court Ca se 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 T EX
. P EN
. C ODE A NN
. § 19.03(a)(2) (West Supp. 2013)

. A jury found Arzat e guilty, and the trial judge2 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 dau ghter, 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 relatio nship 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

a ction 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 figh t, and it was a “normal day.” Arzate left a voicemail on Patric ia’s phone around 11:30 p.m. that night sayi ng 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 worri ed 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 the ir bedroom3 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 ha d 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 , an d 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 sev eral times , “where’s the bastard ?” Elizabeth then heard gun shots 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.
W hen Elizabeth saw Maria , Maria wa s 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 h e also heard4 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 visite d Arzate’s house

. Heron also testified that he heard Maria say, “why Francisco, why? ” By the time p olice 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 goin g 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 Arza te 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 A rzate ’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 gu ys 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 “ The5 same thing that he did to [her] d ad 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 chi ldren 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 brothe r 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 s aw what happened to my in

- laws.” Discussion In his sole point of error, Arzate contends that the evidence is legally insuffici ent 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

.6 A. Stand ard 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 do ubt. 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 , 707 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
f

or 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 w e resolve any inconsistencies in the evidence in7 favor of the ver dict. Id. (citing Lancon v. State , 253 S.W.3d 699, 705 (Tex. Cri m. 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 an d “commits the murder in the course of committing or attempting to commit . . . burglary.” T EX
. P EN
. C ODE A NN
. § 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 habi tation and commits or attempts to commit a felony, theft, or assault.” T EX
. P ENAL C ODE A NN
. § 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

ca use serious bodily injury and commits an act clearly dangerous to human life that causes the death of another. T EX
. P ENAL C ODE § 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 directly8 and independently to the defendant’s guilt; it is enough if the conclus ion is warranted by the combined and cumulative force of all the incriminating circumstances. Id. (quoting Johnson v. State , 871 S.W.2d 18 3, 186 (Tex. Crim. App. 1993)). C. Analysis To prove that Arzate is guilty of capital murder , the State had to prove bey ond 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 T EX
. P ENAL C ODE A NN
. § § 19.02(b)(1) ; 19.03(a)(2)

. We conclude the evidence supports the jury’s guilty verdict . Fi rst, three witnesses who had known Arzate for years identified Arzate as the shooter based on his voice. Maria testi fied 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 yell ed 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 identificati on if the witness had any previous9 acquaintance with the person identified”); Davis v. State , 180 S.W.3d 277, 28 5

– 8 6 (Tex. App.

— Texarkana 2005, no pet.) (holding voice identification sufficient to support conviction). Second, Arzate’s conduct after the mur der indicates consciousness of guilt.
T here is evidence that Arzate was in Mexico after the shooting, despite the fact that he had not previously travel ed to Mexico because his immigration status made it impossible for him to return. Gonzalez testified t hat 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, t here 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 h e did to Gu illermo. 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,10 “if you don’t believe me you saw what happened to my in

- laws. What do you thin k 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 li ke she was makin g him suffer. Arzate contends that the State’s failure to present an eye witness identifying
Arzate or physical evidence

— such as fingerprin ts, DNA, or ballistic evidence

— linking Arzate with the shooting renders the evidence insufficient. But, t he lack o f physical evidence, such as fingerprints, footprints, or DNA, does not rend er the evidence supporting a conviction insufficient. Harmon v. State , 167 S.W.3d 610, 614 (Tex. App.

— Hous ton [14th Dist.] 2005, pet. ref’d ). Similarly, eye witness identification is not required for a conviction. Green v. State , 124 S.W.3d 789, 792 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref’d) (eyewitness identification is not necessary to identify perpetrator). Th e lack of eyewitness testimony and physical evidence were fact ors for the jury to co nsider in weighing the evidence, and we defer to the jur y’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 f ound 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 w as legally sufficient to11 support the judgment

. See Bigby v. State , 892 S.W.2d 864, 88 3 (Tex. Crim. App. 1994) (“Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn.”); McInturf v. State , 544 S.W.2d 4 17, 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 vo ice), aff’d , 18 9 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.
D o not publish. T EX
. R. A PP
. P. 47.2( b).