                            NUMBER 13-09-00163-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DIMAS DANIEL GONZALEZ ZAMORA,                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
             Memorandum Opinion by Chief Justice Valdez

       A jury found appellant, Dimas Daniel Gonzalez Zamora, guilty of attempted capital

murder, a first-degree felony, and capital murder. See TEX . PENAL CODE ANN . § 15.01

(Vernon 2003), § 19.03(a)(7), (8) (Vernon Supp. 2009). The jury assessed punishment at

fifty-five years’ imprisonment for the offense of attempted capital murder, and because the

State did not seek the death penalty, the trial court assessed punishment for the offense

of capital murder at life imprisonment without the possibility of parole.      See id. §§
12.31(a)(2), 12.32 (Vernon Supp. 2009). By six issues, Zamora contends that: (1) he

received ineffective assistance of counsel; (2) the trial court erred in denying his request

for a manslaughter instruction; and (3) the trial court erred in failing to instruct the jury that

it must reach a unanimous verdict. We affirm.

                                        I. BACKGROUND

       Shortly after 10:00 p.m., on Tuesday, July 29, 2008, Maria Vargas, drove home from

a soccer match in Pharr, Texas with her common-law husband, Amador Garibay, their

three-year old daughter, Yaritza Garibay, and two friends, Christina Meza and Emiliano

Alcazar. After driving a short distance, Vargas turned her yellow Volkswagen north onto

Sugar Road off of Owassa Road. A white Ford Taurus that Vargas had noticed following

her since leaving the soccer field passed and pulled in front of her Volkswagen and

stopped. Two individuals exited the Taurus, fired repeatedly at Vargas’s vehicle, re-

entered the Taurus and drove away. Eighteen bullet casings and one bullet were later

found at the scene. After the shooting ceased, the occupants of the Volkswagen realized

that Meza was injured and that three-year-old Yaritza had been shot in the head. Yaritza

was subsequently pronounced dead at Edinburg Children’s Hospital.

       After conducting an investigation, Hidalgo County Sheriff’s officers named Zamora

as a suspect. On August 4, 2008, Investigator Fernando Tanguma spoke to Zamora’s wife

to determine Zamora’s whereabouts. Investigator Tanguma testified that during their

conversation, Zamora’s wife received a call from Zamora on her cellular telephone.

Zamora’s wife asked him where he was and asked him to call Investigator Tanguma.

Zamora’s wife told Investigator Tanguma that the telephone number that Zamora called

from appeared to originate in Monterrey, Mexico.

       Ten to fifteen minutes later, Zamora phoned Investigator Tanguma. Investigator
                                                2
Tanguma explained to Zamora that he was conducting an investigation and wanted to

speak to him. Zamora denied having anything to do with the shooting and refused to tell

Investigator Tanguma where he was. Over the next several days, Investigator Tanguma

spoke to Zamora over the phone, and on August 7, 2008, Zamora informed Investigator

Tanguma that he was on his way back from Mexico and that he was “going to turn himself

into [sic] [Investigator Tanguma].” That afternoon, Investigator Tanguma received a call

advising him that Zamora was detained at the port of entry in Hidalgo, Texas. Zamora was

later released to Investigator Tanguma and transported to the Hidalgo County Sheriff’s

office.

          Zamora gave a statement to Tanguma that was admitted and read into evidence,

without objection, during trial. Zamora’s statement provides, in pertinent part, as follows:

                   On Tuesday[,] July 29, 2008[,] . . . [a]t about 9:30 p.m. Favio [later
          identified as Juan Favio Chipres Torres, herein referred to as “Favio”] told
          me to take him to the soccer field because he wanted to see his girlfriend.
          We left with Liz and Jorge. I was driving the 1999 white Taurus[.] Favio was
          in the front passenger seat. Liz was sitting on the rear passenger seat and
          Jorge was sitting in the rear sear behind me. . . . Favio called someone on
          the phone when we were driving to the soccer field. We arrived at the soccer
          field and I parked on the west side of the parking lot. Favio told me that he
          was going to talk to his girlfriend and stepped out of the car. I saw Favio
          enter the indoor soccer field. Several minutes later[,] I decided to use the
          restroom. As I was getting out of the car I saw Favio walking back to the car.
          I asked Favio if he spoke to his girlfriend and he said he did. I walked into
          the restroom and then returned to the car. I remember that I saw a yellow
          Volkswagen parked in the parking lot of the soccer field. The car caught my
          attention because of the color. I got back into the car and Favio told me to
          leave. As I was driving out of the parking lot I noticed several other cars also
          leaving. I turned west on Owassa Road towards Expressway 281. As I got
          to the intersection of Expressway 281 and Owassa Road[,] I was about to
          turn south when Favio told me to continue west on Owassa Road. I
          remember several cars were in front of me. I got to the intersection of
          Owassa Road and Sugar Road[;] Favio told me to turn north on Sugar Road.
          Favio then told me to overtake the yellow Volkswagen. At the same time[,]
          I felt that Jorge placed a gun to my head because I felt the pressure of the
          barrel against my head. Favio yelled at me to stop in front of the
          Volkswagen and block it. I noticed that Favio was also pointing a gun at me.
          Favio said that they would kill me if I didn’t do what they said. It was the [.]38
                                                   3
      [S]uper with the engraving on it. I stopped in front of the Volkswagen and
      they stopped behind me. Favio and Liz got out of the car and started to
      shoot at the Volkswagon. Favio and Liz both returned back to the Taurus
      and tried to get into the front seat. They ran into each other and then Favio
      got into the front passenger seat, Liz got into the back seat. Favio yelled at
      me to drive off. Jorge kept the gun to my head. Favio and Jorge threatened
      me with the guns and said that they would kill me and my family if I didn’t
      drive where they said. . . . I drove [n]orth on Sugar[,] then Favio made me
      turn left on Alberta Road. As I was driving west[,] Favio made me turn onto
      several streets. Jorge continued to threaten me with the gun pressing
      against my head. I remember that we almost were out of gas and the car
      started to stall so we went to the Stripes on Business 83 and 10th [S]treet.
      Favio gave me $20.00 to go inside and pay for gas. I returned and filled the
      car with $20.00 of gas. I then drove south on 10th Street to the Expressway.
      . . . Favio continued to threaten me and my family. . . . I then exited onto
      Shary Road . . . and drove into the Wal-Mart parking lot. I parked in the
      parking lot and Favio, Jorge, and Liz got out and walked over to
      McDonald[’]s. After around twenty minutes, I called my wife[,] Monica[,] to
      come for me. Monica came and got me and we started to leave. Favio
      called me and told me to hold on. Favio, Jorge and Liz came back and got
      into my wife’s Jeep. We then went back to our house.

              On Wednesday[,] July 30th, in the morning[,] me and Favio went back
      to the Wal-Mart and picked up the 1999 Taurus. Favio said that it needed
      to be cleaned. That afternoon me and Monica took the two [.]38 Super
      pistols and a shotgun that belonged to Favio to my friend[’]s house. Favio
      had wrapped the pistols in a white t[-]shirt and clear tape. Favio told me to
      take the guns over to Gilberto’s house. Favio told me that he knew Gilberto
      could be trusted. Favio told me that I had to leave my [stepson] . . . at the
      house and indicated that harm would come to my step son if I did not deliver
      the guns to my friend. On that same date[,] my wife and I drove to Gilberto’s
      house to leave the guns. . . . We arrived at Gilberto’s house[,] and I told him
      that I was leaving out of town and asked him to take care of the guns. I was
      told by Gilberto that he would place the guns in the attic so his wife would not
      find them. . . . I then went back home and Favio told me to give Jorge and Liz
      a ride to the bus station and to not ask any questions. Jorge and Liz packed
      their bags[,] and I took my wife’s Jeep and went to the [b]us station in
      McAllen to drop them off.

            On Thursday, July 31, 2008[,] Favio told me we needed to leave to
      Mexico. My wife took me and Favio to the bus station in McAllen. We left
      to Monterrey[,] Nuevo Leon.

      On cross-examination, Investigator Tanguma testified that he had collected no

evidence that Zamora fired shots at Vargas’s Volkswagen on July 29, 2008.


                                             4
       Vargas testified that sometime before the July 29, 2008 shooting, her friend, Jose

Silva, was involved in a shooting at a “cock fight.” Belsario Mendoza, a member of

Zamora’s brother-in-law’s family, believed that Silva had shot at him during the fight.

Vargas testified that Silva had been arrested and that she and Garibay bailed him out and

helped him find an attorney. Vargas stated that on the Thursday evening before the

shooting, Mendoza approached her at the soccer field and asked if she had a “problem”

with him. Vargas replied that she did not. Vargas testified that Mendoza placed a

telephone call to someone, though she was not sure to whom, after their encounter. Later

that evening, Vargas noticed a man sitting alone in a truck in the parking lot of the soccer

field “watching” her. Vargas testified that she did not recognize the man, but that she later

saw a picture of Zamora on television and identified him as the man who had watched her

in the parking lot. Vargas testified that she did not know Zamora but that she had been

acquainted with his friend, Favio. According to Vargas, she had not spoken to Favio in

nine or ten years, but she thought that she recognized him as one of the individuals who

shot at her Volkswagen on July 29, 2008.

       On cross-examination, Vargas stated that she gave two affidavits to investigators

and that the second affidavit does not identify Favio as a gunman or mention her encounter

with Mendoza.

       The State presented the testimony of eleven additional witnesses. No witnesses

were presented by the defense. After deliberation, the jury found Zamora guilty of

attempted capital murder and capital murder. This appeal ensued.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

       In issues one through four, Zamora contends that he received ineffective assistance



                                             5
of counsel during the guilt-innocence stage of trial.

A.     Standard of Review

       Although the constitutional right to counsel ensures the right to reasonably effective

counsel, it does not guarantee errorless counsel whose competency or accuracy of

representation is to be judged by hindsight. Rylander v. State, 101 S.W.3d 107, 110 (Tex.

Crim. App. 2003). To prove ineffective assistance of counsel, Zamora must show that (1)

counsel’s performance fell below an objective standard of reasonableness, and (2) there

is a reasonable probability that, but for counsel’s error, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State,

9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jaynes v. State, 216 S.W.3d 839, 851 (Tex.

App.–Corpus Christi 2006, no pet.). A failure to make a showing under either prong of the

Strickland standard defeats a claim of ineffective assistance of counsel. Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

       Zamora must prove his claim of ineffective assistance of counsel by a

preponderance of the evidence. See Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex.

Crim. App. 1991). “In assessing a claim of ineffective assistance, an appellate court ‘must

indulge a strong presumption that counsel’s conduct [fell] within the wide range of

reasonable professional assistance; that is, the [appellant] must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.’” Williams, 301 S.W.3d at 687 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001)). Whether the Strickland test has been met is to be judged on appeal

by the totality of the circumstances, not by any isolated acts or omissions. Jaynes, 216

S.W.3d at 851.



                                             6
         Direct appeal is usually an inadequate vehicle for raising such a claim because the

record is generally undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005); see Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000) (noting

that “only in rare cases will the record on direct appeal be sufficient for an appellate court

to fairly evaluate the claim”). Trial counsel should ordinarily be afforded an opportunity to

explain his or her actions before being denounced as ineffective. Goodspeed, 187 S.W.3d

at 392. To warrant reversal without affording counsel an opportunity to explain his actions,

“the challenged conduct must be ‘so outrageous that no competent attorney would have

engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting

Goodspeed, 187 S.W.3d at 392).

B.       Failure to Seek Duress Instruction

         In his first issue, Zamora contends that he received ineffective assistance of counsel

by trial counsel’s failure to request a jury instruction on the affirmative defense of duress.1

Zamora argues that because trial counsel did not urge a motion to suppress or challenge

the admission of Zamora’s statement, “trial counsel’s trial strategy must have been to

adduce these facts in order to entitle Appellant to a jury instruction on duress.” Zamora

also argues that trial counsel’s subsequent failure to seek an instruction on duress was not

acceptable trial strategy. By asserting that counsel allowed Zamora’s statement to be

admitted in order to present the evidence necessary to support a duress instruction,


         1
            A defendant is entitled to an instruction of every defensive issue raised by the evidence, regardless
of the strength of that evidence. Hayes v. State, 728 S.W .2d 804, 807 (Tex. Crim . App. 1987). The duress
defense is applicable to a case in which the defendant “engaged in the proscribed conduct because he was
com pelled to do so by threat of im m inent death or serious bodily injury to him self or another.” T EX . P ENAL
C OD E A N N . § 8.05(a) (Vernon 2003). This affirm ative defense is not available to a defendant if he intentionally,
knowingly, or recklessly placed him self in a situation in which it was probable that he would be subject to
com pulsion. Id. § 8.05(d). Com pulsion exists only if the force or threat of force would render a person of
reasonable firm ness incapable of resisting the pressure. Id. § 8.05(c).



                                                          7
Zamora encourages us to speculate as to the reasons counsel opted not to contest

Zamora’s statement. He then asks us to assume, based on the previous speculation, that

he was entitled to an instruction on duress and that trial counsel was ineffective for failing

to ask for a duress instruction. We will not engage in such speculation. See Bone v. State,

77 S.W.3d 828, 835-36 (Tex. Crim. App. 2002).

       Because Zamora did not file a motion for new trial and did not elicit any testimony

regarding trial counsel’s reasons for taking the complained-of actions, there is no evidence

in the record that the actions of Zamora’s trial counsel were not the result of sound and

reasonable trial strategy. See Jaynes, 216 S.W.3d at 855. Without this specific evidence

of trial counsel’s decision-making process and strategy, we cannot conclude that Zamora

has overcome the strong presumption that his trial counsel provided professional,

objectively reasonable assistance. See Thompson, 9 S.W.3d at 813. Because Zamora

did not establish that his trial counsel’s performance fell below an objectively reasonable

standard, he has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855.

Zamora’s first issue is overruled.

C.     Failure to Question Juror Number 3 Regarding Unauthorized Communication

       In his second issue, Zamora asserts that he received ineffective assistance by trial

counsel’s failure to throughly investigate an unauthorized communication’s affect on Juror

Number 3.

       During the lunch break on the first day of testimony, a member of Zamora’s family

asked Juror Number 2 if she could borrow Juror Number 2’s cell phone. A hearing was

conducted to determine the communication’s affect on Juror Number 2. At the hearing,

Juror Number 2 stated that she was with Juror Number 3 during a break when a female



                                              8
asked to use her phone. Not realizing that the female was a member of Zamora’s family,

Juror Number 2 complied; however, upon realizing that she had spoken to a member of

Zamora’s family, Juror Number 2 notified the court. Juror Number 2 informed the trial court

that because a call had been placed from her phone she felt “nervous.” She also asked

to be removed from the jury because she “really [didn’t] want to be identified, or have

anybody be able to connect [her] with a serious case like this one.” Trial counsel

requested that the trial court disable Juror Number 2, the State agreed, and the trial court

replaced her with an alternate juror.

       The trial court then called Juror Number 3 and questioned her as follows:

       The Court:           Did you have any type of problems during lunch? You
                            foresee any problems during lunch?

       Juror [Number 3]:    Not really. Just somebody came up to me and talked to
                            me about my hair. That it was real nice and—

       The Court:           But that’s not going to influence you in any way?

       Juror [Number 3]:    No.

       The Court:           You don’t know who it is?

       Juror [Number 3]:    No.

       The Court:           You don’t have any connection about anybody?

       Juror [Number 3]:    No.

       The State and trial counsel informed the trial court that they did not have any

questions for Juror Number 3, and no one requested that she be disabled.

       On appeal, Zamora argues that trial counsel was ineffective for failing to question

Juror Number 3 to determine whether she was affected by the unauthorized


                                             9
communication. According to Zamora, trial counsel’s “failure to investigate” Juror Number

3 allowed her “to taint the rest of the jury by the same fear and bias that disabled [J]uror

[N]umber 2.” The record reflects that Juror Number 3 told the trial court that she had not

seen any problems during lunch and gave no indication that she shared, or was aware of,

Juror Number 2’s fear or bias. The record is silent regarding trial counsel’s reason for not

questioning Juror Number 3, and Zamora has failed to overcome the strong presumption

that trial counsel’s conduct fell within the wide range of reasonable professional assistance.

See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Zamora’s second issue is

overruled.

D.     Extraneous Offense

       In his third and fourth issues, Zamora contends that he received ineffective

assistance of trial counsel because counsel “opened the door” to the State’s inquiry about

a previous attempted murder conviction and failed to seek an “adequate” limiting

instruction.

       1.      Pertinent Facts

       During its case-in-chief, the State called Veronica Sanchez, who testified that

sometime after July 29, 2008, she gave consent to police to search her home for guns

believed to have been used in the shooting. During cross-examination, trial counsel asked

Sanchez if she knew Zamora to be a violent person. On re-direct examination, the State

asked Sanchez whether she was aware that Zamora had been convicted of attempted

murder. Trial counsel immediately objected, and the State responded that trial counsel

had “opened the door” to this line of questioning. The trial court discussed the objection

with counsel outside the jury’s presence, and, at the State’s request, the trial court agreed



                                             10
to withdraw the question, strike it from the record, and instruct the jury to disregard it. Trial

counsel responded that an instruction to disregard would not remedy the problem and

requested a mistrial. Trial counsel’s request was denied.2 The trial court then instructed

the jury:

               Ladies and gentlemen of the jury, we took a break. There was an
        issue that already—that was for me to determine, and basically, what I’m
        going to tell you right now is the questions are not evidence. I don’t know if
        I mentioned that to you before. Questions can never be evidence, okay?

                Last question was [sic] asked is not evidence. You cannot—I’m going
        to instruct you you cannot infer anything about it. You cannot speculate or
        guess anything about it. Okay. So get that question out of your mind. There
        was no answer anyway.

        2.      Analysis

        Zamora contends that “opening the door” does not constitute reasonable trial

strategy, and that trial counsel was ineffective for failing to “demand a sufficient limiting

instruction.” The State agrees that trial counsel opened the door to the admission of

evidence of Zamora’s prior conviction by asking Sanchez if she had ever known Zamora

to be violent. However, the State argues that the trial court’s instruction to disregard cured

any error made by trial counsel.

        Zamora did not file a post-judgment motion for new trial; therefore, the record is

silent on trial counsel’s reasons for asking Sanchez whether she was aware of Zamora’s

criminal history. Assuming, without deciding, that trial counsel opened the door to the

State’s questioning of Sanchez and that trial counsel’s action constituted deficient

performance, Zamora has not shown by a preponderance of the evidence that there is a

reasonable probability that, but for counsel’s deficiency, the result of the proceeding would
        2
         W e note that although Zam ora argues that trial counsel was ineffective for failing to request an
adequate instruction, he does not contend that the trial court erred in refusing to grant a m istrial.



                                                    11
have been different. See Strickland, 466 U.S. at 687.

       The trial court instructed the jury to disregard the question after the State questioned

Sanchez about her knowledge of Zamora’s alleged prior conviction. We generally presume

that an instruction to disregard cures any harm flowing from the error. See Thrift v. State,

176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Martinez v. State, 17 S.W.3d 677, 691 (Tex.

Crim. App. 2000). To refute this presumption, the appellant must point to evidence in the

record that demonstrates that the jury failed to follow the trial court’s instructions. Thrift,

176 S.W.3d at 224; see Phillips v. State, 130 S.W.3d 343, 356 (Tex. App.–Houston [14th

Dist.] 2004, pet. ref’d) (holding that when the record shows no evidence to the contrary, an

appellate court assumes the jury followed the trial court’s instruction to disregard). Zamora

points us to nothing in the record to suggest that the jury was in any way persuaded or

affected by the State’s question. Therefore, we see no evidence that but for trial counsel’s

opening the door to the State’s question and alleged failure in requesting an “adequate”

limiting instruction, the result of the proceeding would have been different. See Strickland,

466 U.S. at 687. Zamora’s third and fourth issues are overruled.

                               III. LESSER -INCLUDED OFFENSE

       In his fifth issue, Zamora contends that the trial court erred in denying his request

for a jury charge instruction on manslaughter as to the capital murder charge.

A.     Standard of Review

       We use a two-part test to determine whether a defendant is entitled to an instruction

on a lesser-included offense. “First, the lesser-included offense must be included within

the proof necessary to establish the offense charged; second, there must be some

evidence in the record that if the defendant is guilty, he is guilty only of the lesser-included


                                              12
offense.” Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009). If the elements

of the lesser offense are “‘established by proof of the same or less than all the facts

required to establish the commission of the offense charged,’” the first prong of the test is

satisfied. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (quoting TEX . CODE

CRIM . PROC . ANN . art. 37.09(1) (Vernon 2006)).

       The second prong asks whether there is evidence that supports giving the

instruction to the jury; anything more than a scintilla of evidence may suffice to entitle the

defendant to a charge on the lesser-included offense. Id. The evidence produced must

establish the lesser-included offense as “a valid, rational alternative to the charged

offense.” Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)).

B.     Analysis

       The indictment alleged that Zamora intentionally or knowingly caused the death of

Yaritza, an individual younger than six years of age, by shooting her with a deadly weapon.

A person commits manslaughter “if he recklessly causes the death of an individual.” TEX .

PENAL CODE ANN . § 19.04(a) (Vernon 2003). Here, when the elements of capital murder

as alleged in the indictment are compared with the elements of manslaughter, it is evident

that manslaughter is “established by proof of the same or less than all the facts required

to establish the commission of the offense charged.” See Hall, 225 S.W.3d at 536; see

also Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000) (recognizing that

manslaughter is a lesser-included offense of capital murder). Therefore, we next consider

whether there was evidence adduced at trial that supported giving the instruction to the

jury. See Hall, 225 S.W.3d at 536.


                                             13
         In order to meet the second prong, there must be some evidence that would permit

a rational jury to find that if Zamora is guilty, he is guilty only of manslaughter. See TEX .

CODE CRIM . PROC . ANN . art. 37.09; Hall, 225 S.W.3d at 536. The distinguishing element

between manslaughter and capital murder is the requisite mental state. Ross v. State, 861

S.W.2d 870, 875 (Tex. Crim. App. 1992) (en banc). Murder is statutorily defined as

intentionally or knowingly causing the death of an individual. TEX . PENAL CODE ANN . §

19.02(b)(1). “A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to engage

in the conduct or cause the result.” Id. § 6.03(a) (Vernon 2003). “A person acts knowingly

with respect to a result of his conduct when he is aware that his conduct is reasonably

certain to cause the result.” Id. § 6.03(b). Manslaughter is defined as recklessly causing

the death of an individual. Id. § 19.04(a). A person acts recklessly “with respect to

circumstances surrounding his conduct or the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the circumstances exist or

the result will occur.” Id. § 6.03(c).

         Applying these definitions, the second prong of the test is satisfied if there is some

evidence from which a rational jury could find that Zamora consciously disregarded the

substantial and unjustifiable risk that his conduct would cause Yaritza’s death, rather than

finding that (1) it was Zamora’s conscious objective or desire to cause Yaritza’s death, or

(2) Zamora was aware that his conduct was reasonably certain to cause Yaritza’s death.3

         3
          W e note that the trial court instructed the jury on the law of parties. See T EX . P EN AL C OD E A N N . §§
7.01(a), 7.02(a)(2) (Vernon 2003). Zam ora did not challenge the instruction in the trial court or in this Court.
Therefore, the jury could have found Zam ora crim inally responsible for Favio’s actions. See id. § 7.02(a)(2)
(providing that “[a] person is crim inally responsible for the conduct of another if . . . acting with intent to



                                                         14
See Young, 283 S.W.3d at 875-76. On appeal, Zamora argues that there was no evidence

that Zamora “specifically intended the death of Yaritza” and that Alcazar’s testimony that

Zamora was one of the gunmen that fired at Vargas’s yellow Volkswagen supports a

finding that Zamora “acted recklessly.” We disagree.

        Intent may be inferred from a defendant’s actions, words, and conduct. Patrick v.

State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). “Intent may also be ascertained or

inferred from the means used and the wounds inflicted.” Yanez v. State, 199 S.W.3d 293,

311 (Tex. App.–Corpus Christi 2006, pet. ref’d) (citing Womble v. State, 618 S.W.2d 59,

64 (Tex. Crim. App. 1981)). When a deadly weapon is used in a deadly manner, the

inference is almost conclusive that the appellant intended to kill. Godsey v. State, 719

S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc); Yanez, 199 S.W.3d at 311 n.13. A

firearm is a deadly weapon per se. See TEX . PENAL CODE ANN . § 1.07(a)(17)(A) (Vernon

Supp. 2009); Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).

        The jury heard testimony that Vargas’s friend, Silva shot at Mendoza, a relative of

Zamora’s brother-in-law, at a “cock fight.” Vargas and Garibay bailed Silva out of jail and

found him an attorney. Vargas testified that the Thursday before Yaritza was killed,

Mendoza approached Vargas at the soccer field, asked her if she had a problem with him,

and asked why Silva had shot at him. Upon leaving the soccer field, Vargas noticed a

man, whom she later identified as Zamora, sitting alone in a truck in the parking lot

“watching” her. The following Tuesday, Vargas noticed a white Taurus following her

Volkswagen as she left the soccer field. Additional testimony revealed that the Taurus
prom ote or assist the com m ission of the offense, he solicits, encourages, directs, aids, or attem pts to aid the
other person to com m it the offense. . .”).



                                                       15
possibly belonged to Favio.

        Vargas testified that the Taurus passed her soon after she turned onto Sugar Road.

Vargas stated that the Taurus stopped in front of her Volkswagen and “two guys” exited

the Taurus and opened fire on her vehicle. Vargas identified one of the gunmen as Favio,

but was unable to identify the other gunman. Garibay and Meza were unable to identify

either gunman, and Alcazar identified one of the gunmen as Zamora.4 Vargas testified that

after the shooting ceased, she saw the Taurus drive away and realized that Yaritza had

been shot in the head. Eighteen bullet casings and one bullet were later found at the

scene, and multiple bullet holes in the Volkswagen indicated that bullets had travelled

through the front passenger side of the vehicle to the back driver’s side.

        In his statement, Zamora admits that on July 29, 2008, he drove Favio’s white

Taurus to the soccer field with Favio, Jorge, and Liz. Shortly after leaving the soccer field,

Zamora followed Favio’s instructions to “stop in front of the Volkswagen and block it.”

Zamora stated that after he stopped the Taurus, Favio and Liz “got out of the car and

started to shoot at the Volkswagen.” After the shooting, Zamora drove to a gas station and

filled the Taurus with gasoline and then dropped it off in a Wal-Mart parking lot. According

to Zamora’s statement, he and Favio retrieved the Taurus on July 30, and, later that

afternoon, Zamora took “two [.]38 Super pistols” and a shotgun to Gilberto Saenz’s house

so that Saenz could hide them. Zamora then stated that he drove Jorge and Liz to a bus

station. On July 31, he left for Mexico with Favio.

        Whether the jury believed that Zamora shot into the Volkswagen or that he drove
        4
         However, cross-exam ination revealed that Alcazar never gave a statem ent to police identifying
Zam ora as a gunm an.



                                                  16
the Taurus in a such a manner so as to assist or aid Favio in shooting at those inside the

Volkswagen, a jury could reasonably infer an intent to kill. See Womble, 618 S.W.2d at

64; Yanez, 199 S.W.3d at 311. Moreover, there is no evidence that would permit a jury to

find Zamora guilty only of manslaughter. See Yanez, 199 S.W.3d at 311-12. Based on

the evidence contained in the record, the trial court did not err by refusing to charge the

jury on the lesser-included offense of manslaughter. See Arnold v. State, 234 S.W.3d 664,

672 (Tex. App.–Houston [14th Dist.] 2007, no pet.); Yanez, 199 S.W.3d at 311-12.

Zamora’s fifth issue is overruled.

                             IV. LESS THAN UNANIMOUS VERDICT

       In his sixth issue, Zamora contends that the trial court erred by failing to instruct the

jury that its verdict must be unanimous regarding his guilt as a primary actor or party.

       In count one, the jury charge provided that the jury could find Zamora guilty of

attempted capital murder if either: (1) Zamora, with the specific intent to commit capital

murder, shot Meza and Yaritza and shot at or in the direction of Garibay and Vargas, which

amounted to more than mere preparation that tended but failed to effect the commission

of the offense intended; or (2) Favio, with the specific intent to commit capital murder, shot

Meza and Yaritza and shot at or in the direction of Garibay and Vargas, which amounted

to more than mere preparation that tended but failed to effect the commission of the

offense intended, and Zamora, then and there knew of Favio’s intent and acted with the

intent to promote or assist the commission of the offense by Favio by encouraging,

directing, aiding, or attempting to aid Favio to commit the offense. In count two, the jury

charge provided that the jury could find Zamora guilty of capital murder if either: (1)


                                              17
Zamora intentionally or knowingly caused the death of Yaritza by shooting her with a

deadly weapon and Yaritza was younger than six years of age; or (2) Favio intentionally

or knowingly caused the death of Yaritza by shooting her with a deadly weapon and Yaritza

was younger than six years of age, and that Zamora knew of the intent of Favio to cause

the death of Yaritza by shooting her with and deadly weapon, and Zamora acted with intent

to promote or assist the offense by Favio by encouraging, directing, aiding, or attempting

to aid Favio to commit the offense.

       In reviewing a disjunctive jury charge, we first determine whether the application

paragraphs contain different criminal acts or whether they merely instruct as to different

means of committing a single offense. Holford v. State, 177 S.W.3d 454, 461 (Tex.

App.–Houston [1st Dist.] 2005, pet. ref’d). Jury unanimity is not affected if the disjunctive

charge merely addresses different means of committing a single offense. See Jefferson

v. State, 189 S.W.3d 305, 312-13 (Tex. Crim. App. 2006). Both application paragraphs of

count one pertain to the criminal act of attempted capital murder, and both application

paragraphs of count two address the criminal act of capital murder. The trial court’s

instruction on party liability in count one provides an alternate method by which the jury

could find that Zamora attempted to commit capital murder; it does not set forth a separate

criminal act. See Randall v. State, 232 S.W.3d 285, 294 (Tex. App.–Beaumont 2007, pet.

ref’d) (holding that the unanimity requirement was not violated where the jury was

instructed that it could find the defendant guilty of capital murder as a principal or as a

party); see also Ramos v. State, No.13-06-00646-CR, 2009 WL 3210924, at *10 (Tex.

App.–Corpus Christi Oct. 8, 2009, no pet.) (mem. op., not designated for publication)



                                             18
(concluding that the trial court’s instruction on party liability provided an alternate method

by which the jury could have found that appellant committed the offense of human

trafficking and did not set forth a separate criminal act). Similarly, count two provides an

alternate method by which the jury could find that Zamora committed capital murder and

does not set forth a separate criminal act. See Randall, 232 S.W.3d at 294; see also

Ramos, 2009 WL 3210924, at *10. Accordingly, the trial court did not err by failing to

instruct the jury that it must unanimously determine whether Zamora was the primary actor

or a party. Zamora’s sixth issue is overruled.

                                      V. CONCLUSION

       Having overruled all of Zamora’s issues, we affirm the trial court’s judgment.

                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice
Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
22nd day of April, 2010.




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