Moses Liserio v. State ( 2000 )

NUMBER 13-99-303-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

MOSES LISERIO

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of Calhoun County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Kennedy⁽¹⁾

Opinion by Justice Kennedy

Appellant was found guilty by a jury of the murder of Carlos Cabrera by shooting him with a firearm. The jury then assessed punishment at confinement for sixty years. Appellant's brief brings a single point of error which alleges insufficient evidence to convict.

There was no eyewitness to the shooting. Cabrera was shot while sitting in his pickup truck in front of a convenience store. An employee of the store heard a shot outside and called 911. This employee was not able to identify appellant.

Two witnesses testified to phone calls they each received in which appellant stated that he had just shot Carlos. One of the witnesses testified that after receiving the call, he drove with his aunt, Melba Cabrera (Carlos' wife), to the scene of the shooting. Appellant and Melba had been having an affair previously.

Appellant was arrested following a car chase which ended in the wreck of appellant's car. Appellant was the only person in the car. A nine millimeter handgun was found in appellant's car by the arresting officers. A Department of Public Safety expert testified that bullets removed from Cabrera's body were fired from the pistol.

For purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative. Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1981).

In alleging insufficiency of the evidence, appellant does not specify whether he refers to legal or factual insufficiency. We address this point of error from the standpoint of both theories.

To determine whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 319; Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998). In a factual sufficiency review, we examine all of the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

We conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt in this case. Having examined the evidence impartially, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The evidence was not insufficient. We overrule the one point of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 14th day of December, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).