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Click here for the full text of this decision FACTS: Alexander Rey Martinez was convicted in December 2002 of capital murder. HOLDING: Affirmed. Martinez concedes that he murdered the victim, but claims that the only evidence supporting a finding that he committed the murder in the course of committing or attempting to commit aggravated sexual assault came from a “jail snitch” who was not worthy of belief. Martinez gave three different versions of the offense to police. Deferring to the jury’s assessment of weight and credibility, Cesar Rios’ (a cell mate of Martinez’s at the Harris County Jail) version is believable and is not inconsistent with Martinez’s statements. Martinez said nothing about sexual contact in his first two statements. In his third statement, Martinez’s comment that the victim “complied” with him could reasonably be interpreted as meaning that the victim did not struggle or fight him as he held her at knifepoint. Moreover, Martinez’s theory that the victim had consensual sex with him and then brought up the issue of payment is less believable than Rios’ version, considering that the victim had already discussed payment on the phone, was driving a long way across town to Martinez’s house, and was conducting a business transaction. Given the discussion between appellant and the victim concerning payment, it would be reasonable to conclude that the victim would have acted in her best interest by obtaining the payment up front. In addition, the level of detail described by Rios and the consistency between Rios’ testimony and certain facts described in Martinez’s statements and the testimony of other witnesses, lend credibility to Rios’ testimony. Considering these factors, the proof of aggravated sexual assault is not so obviously weak as to undermine confidence in the jury’s determination, nor is the proof of an aggravated sexual assault greatly outweighed by contrary proof. Martinez claims the evidence is legally and factually insufficient to support his conviction for capital murder in that the state failed to prove robbery beyond a reasonable doubt. In a capital murder case, when the charge authorizes the jury to convict on more than one theory, a guilty verdict will be upheld if the evidence is sufficient on any one of the theories. The indictment alleged that Martinez committed murder in the course of committing or attempting to commit robbery and in the course of committing or attempting to commit aggravated sexual assault. The jury charge authorized conviction on either theory. The evidence is legally and factually sufficient on the theory of murder committed in the course of aggravated sexual assault. OPINION: Mike Keasler, J., delivered the opinion of the court.

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