In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00294-CR
LUCIO ZAVALA SIFUENTES, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. CR-18J-160, Honorable Roland Saul, Presiding
August 7, 2020
MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.
Appellant, Lucio Zavala Sifuentes, Jr., was convicted of attempted capital murder
following a jury trial.1 The jury assessed appellant’s punishment at forty years’
confinement in the Institutional Division of the Texas Department of Criminal Justice and
a $2,500 fine. By his sole issue, appellant challenges the sufficiency of the evidence
presented to support his conviction. We affirm the judgment of the trial court.
1 TEX. PENAL CODE ANN. §§ 15.01(a) (West 2019), 19.03(a)(1) (West Supp. 2019). Background
During the early morning hours of September 7, 2018, Hereford Police Officer
Andrew Johnston was on patrol near the local high school conducting building checks.
Officer Johnston observed appellant, a pedestrian, walking in the middle of the roadway
near the school. The officer stopped his patrol car and obtained appellant’s identification.
After explaining why he stopped appellant, the officer asked for appellant’s consent to
conduct a “pat down” to determine if appellant had any weapons. The officer instructed
appellant to interlock his hands on his head. Instead of complying with that request,
appellant fled. The officer pursued appellant and yelled at appellant to stop. As the officer
caught up with appellant, he deployed his taser. When appellant was hit by the taser, he
fell and a gun he was holding discharged.
Officer Johnston testified that he heard a gunshot after he deployed the taser.
According to the officer, the gunshot was not fired in his direction. However, as the officer
approached appellant’s position, appellant rolled onto his back and Officer Johnston
heard a second gunshot in his direction, “right by [his] face.” The second gunshot was
aimed at him, but it missed to his left. Although appellant initially responded as if the taser
was properly attached, Officer Johnston believes only one of the taser prongs hit
appellant, rendering the taser ineffective based on how quickly appellant rolled over when
he hit the ground and fired the second shot. A scuffle between the officer and appellant
ensued. During the scuffle, Officer Johnston’s body cam was dislodged. The officer
pinned appellant’s hands to the ground, and he obtained possession of appellant’s gun.
Appellant separated himself from the officer. Then, Officer Johnston drew his service
2 weapon and told appellant to get on the ground. Instead of complying with the officer’s
commands, appellant again escaped and fled the scene.
Officer Brady Grunder responded to Officer Johnston’s radio call reporting “shots
fired.” However, by the time Officer Grunder arrived on the scene, appellant could not be
located.
Officer Johnston recovered a .38 caliber Smith & Wesson revolver from the scene.
The weapon, a six-shot revolver, was identified as the gun that was taken from appellant
during the scuffle. Officer Johnston found two spent casings and four unspent rounds
inside the revolver.
The State introduced a video recording from Officer Johnston’s patrol car and his
body cam video. Officer Johnston identified two noises from these recordings as
gunshots. According to Officer Johnston, he is “100 percent” certain that appellant shot
at him during the incident in question. “Initially, I thought I got shot. In the split second I
realized I was still conscious; I started to fight and reach for [appellant’s] hands and try to
get [the gun] from him.” Officer Johnston testified that after the incident, he had ringing
in his left ear and pain in his left shoulder. He described the sensation as being similar
to that experienced when one fails to wear ear protection at a gun range.
Appellant testified in his own defense. On the night of the encounter with Officer
Johnston, appellant claimed he was on his way to sell the revolver. He did not want the
officer to find the revolver when he was conducting the pat down so he ran. While he was
running from the officer, he found a place where he could dispose of the gun by throwing
it over a fence. Before he could do so however, he was struck by the taser between his
shoulder blades which caused him to “lock up.” The gun accidentally discharged after he 3 was hit with the taser. Appellant stated Officer Johnston jumped on his back while he
was laying on the ground. According to appellant, he did not have possession of the
revolver after he hit the ground. Appellant denied firing the gun twice or firing it in Officer
Johnston’s direction. Appellant did not hear a second gun shot and maintained that he
did not “intentionally pull the trigger” to fire at the officer.
A jury convicted appellant of attempted capital murder and sentenced him to forty
years’ confinement. Appellant timely filed this appeal.
Analysis
By his appeal, appellant presents a single issue. Appellant contends that the
evidence is insufficient to establish that he had the specific intent to kill Officer Johnston.
The standard that we apply in determining whether the evidence is sufficient to
support each element of a criminal offense the State is required to prove beyond a
reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.
App. 2010). Under that standard, when assessing the sufficiency of the evidence to
support a criminal conviction, we consider all the evidence in the light most favorable to
the verdict and determine whether, based on that evidence and reasonable inferences to
be drawn therefrom, a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d
at 912. The jury is the sole judge of the credibility of the witnesses and the weight to be
given to their testimonies, and we will not usurp this role by substituting our judgment for
that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We
also measure the sufficiency of the evidence against the elements of the offense as 4 defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997).
In this case, appellant was charged with attempted capital murder. The Penal
Code provides that a person commits the offense of murder if he intentionally or knowingly
causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019).
Murder becomes capital murder under certain circumstances, including when the person
murders a peace officer who is acting in the lawful discharge of his official duties and
whom the person knows to be a peace officer. Id. § 19.03(a)(1). An attempt to commit
an offense occurs when, with the specific intent to commit the offense, a person does an
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00294-CR
LUCIO ZAVALA SIFUENTES, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. CR-18J-160, Honorable Roland Saul, Presiding
August 7, 2020
MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.
Appellant, Lucio Zavala Sifuentes, Jr., was convicted of attempted capital murder
following a jury trial.1 The jury assessed appellant’s punishment at forty years’
confinement in the Institutional Division of the Texas Department of Criminal Justice and
a $2,500 fine. By his sole issue, appellant challenges the sufficiency of the evidence
presented to support his conviction. We affirm the judgment of the trial court.
1 TEX. PENAL CODE ANN. §§ 15.01(a) (West 2019), 19.03(a)(1) (West Supp. 2019). Background
During the early morning hours of September 7, 2018, Hereford Police Officer
Andrew Johnston was on patrol near the local high school conducting building checks.
Officer Johnston observed appellant, a pedestrian, walking in the middle of the roadway
near the school. The officer stopped his patrol car and obtained appellant’s identification.
After explaining why he stopped appellant, the officer asked for appellant’s consent to
conduct a “pat down” to determine if appellant had any weapons. The officer instructed
appellant to interlock his hands on his head. Instead of complying with that request,
appellant fled. The officer pursued appellant and yelled at appellant to stop. As the officer
caught up with appellant, he deployed his taser. When appellant was hit by the taser, he
fell and a gun he was holding discharged.
Officer Johnston testified that he heard a gunshot after he deployed the taser.
According to the officer, the gunshot was not fired in his direction. However, as the officer
approached appellant’s position, appellant rolled onto his back and Officer Johnston
heard a second gunshot in his direction, “right by [his] face.” The second gunshot was
aimed at him, but it missed to his left. Although appellant initially responded as if the taser
was properly attached, Officer Johnston believes only one of the taser prongs hit
appellant, rendering the taser ineffective based on how quickly appellant rolled over when
he hit the ground and fired the second shot. A scuffle between the officer and appellant
ensued. During the scuffle, Officer Johnston’s body cam was dislodged. The officer
pinned appellant’s hands to the ground, and he obtained possession of appellant’s gun.
Appellant separated himself from the officer. Then, Officer Johnston drew his service
2 weapon and told appellant to get on the ground. Instead of complying with the officer’s
commands, appellant again escaped and fled the scene.
Officer Brady Grunder responded to Officer Johnston’s radio call reporting “shots
fired.” However, by the time Officer Grunder arrived on the scene, appellant could not be
located.
Officer Johnston recovered a .38 caliber Smith & Wesson revolver from the scene.
The weapon, a six-shot revolver, was identified as the gun that was taken from appellant
during the scuffle. Officer Johnston found two spent casings and four unspent rounds
inside the revolver.
The State introduced a video recording from Officer Johnston’s patrol car and his
body cam video. Officer Johnston identified two noises from these recordings as
gunshots. According to Officer Johnston, he is “100 percent” certain that appellant shot
at him during the incident in question. “Initially, I thought I got shot. In the split second I
realized I was still conscious; I started to fight and reach for [appellant’s] hands and try to
get [the gun] from him.” Officer Johnston testified that after the incident, he had ringing
in his left ear and pain in his left shoulder. He described the sensation as being similar
to that experienced when one fails to wear ear protection at a gun range.
Appellant testified in his own defense. On the night of the encounter with Officer
Johnston, appellant claimed he was on his way to sell the revolver. He did not want the
officer to find the revolver when he was conducting the pat down so he ran. While he was
running from the officer, he found a place where he could dispose of the gun by throwing
it over a fence. Before he could do so however, he was struck by the taser between his
shoulder blades which caused him to “lock up.” The gun accidentally discharged after he 3 was hit with the taser. Appellant stated Officer Johnston jumped on his back while he
was laying on the ground. According to appellant, he did not have possession of the
revolver after he hit the ground. Appellant denied firing the gun twice or firing it in Officer
Johnston’s direction. Appellant did not hear a second gun shot and maintained that he
did not “intentionally pull the trigger” to fire at the officer.
A jury convicted appellant of attempted capital murder and sentenced him to forty
years’ confinement. Appellant timely filed this appeal.
Analysis
By his appeal, appellant presents a single issue. Appellant contends that the
evidence is insufficient to establish that he had the specific intent to kill Officer Johnston.
The standard that we apply in determining whether the evidence is sufficient to
support each element of a criminal offense the State is required to prove beyond a
reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim.
App. 2010). Under that standard, when assessing the sufficiency of the evidence to
support a criminal conviction, we consider all the evidence in the light most favorable to
the verdict and determine whether, based on that evidence and reasonable inferences to
be drawn therefrom, a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d
at 912. The jury is the sole judge of the credibility of the witnesses and the weight to be
given to their testimonies, and we will not usurp this role by substituting our judgment for
that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We
also measure the sufficiency of the evidence against the elements of the offense as 4 defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997).
In this case, appellant was charged with attempted capital murder. The Penal
Code provides that a person commits the offense of murder if he intentionally or knowingly
causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019).
Murder becomes capital murder under certain circumstances, including when the person
murders a peace officer who is acting in the lawful discharge of his official duties and
whom the person knows to be a peace officer. Id. § 19.03(a)(1). An attempt to commit
an offense occurs when, with the specific intent to commit the offense, a person does an
act that amounts to “more than mere preparation that tends but fails to effect the
commission of the offense intended.” Id. § 15.01(a).
To permit the jury to find appellant guilty of the attempted capital murder of Officer
Johnston, the State was required to prove beyond a reasonable doubt that, with the
specific intent to cause the death of Officer Johnston, while knowing that he was a peace
officer acting in the lawful discharge of an official duty, appellant, committed an act
amounting to more than mere preparation that tended but failed to effect the commission
of the offense of capital murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim.
App. 1984) (op. on reh’g) (“[A] specific intent to kill is a necessary element of attempted
murder.”); “[T]he specific intent to kill may be inferred from the use of a deadly weapon.”
Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); see also Godsey v. State,
719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986).
Appellant does not challenge the sufficiency of the evidence to establish that
Officer Johnston was a peace officer who was acting in the lawful discharge of an official
5 duty or that appellant was aware of this fact. Instead, appellant argues that the evidence
was insufficient to show that he intended to kill Officer Johnston.
In this case, the record demonstrates that appellant fled from the officer with a
loaded revolver. Officer Johnston distinguished the first gunshot, which was directed
away from him, from the second one, which was fired in his direction to his left side. The
officer was 100 percent certain that he was shot at and he identified two sounds as
gunshots on his body cam audio. He alerted other officers to the threat indicating “shots
fired” on his police radio. Further, he experienced ringing in his left ear which supports
the officer’s testimony that he was in close proximity to a gun when it discharged. The
jury also heard testimony that a six-shot revolver was recovered at the scene. The
revolver had two spent casings inside the cylinder.
Although appellant challenges the credibility of Officer Johnston’s testimony, the
trier of fact is the sole judge of the credibility of the witnesses and the weight to be given
their testimony. See Jackson, 443 U.S. at 326. As such, the jury is free to believe all,
some, or none of a witness’s testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008); Monreal v. State, 546 S.W.3d 718, 724-725 (Tex. App.—San Antonio
2018, pet. ref’d.). Here, the jury was free to reject appellant’s claim that he was
incapacitated by the taser and that he did not fire a second shot or fire the gun in the
direction of Officer Johnston.
The specific intent to kill may be inferred from the use of a deadly weapon, unless
in the manner of its use it is reasonably apparent that death could not result. Godsey,
719 S.W.2d at 580-81. Firing a revolver in the direction of an arresting officer under these
circumstances constitutes a manner of use in which death was a likely result. Viewing
6 the evidence in the light most favorable to the verdict, we conclude that a rational jury
could have found beyond a reasonable doubt that appellant committed the offense of
attempted capital murder. Appellant’s sole issue is overruled.
Conclusion
Having overruled appellant’s issue, we affirm the judgment of the trial court.
Judy C. Parker Justice
Do not publish.