                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   No. 07-18-00154-CR


                           DAVID CARRILLO, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 137th District Court
                                  Lubbock County, Texas
      Trial Court No. 2015-406,365, Honorable John J. “Trey” McClendon III, Presiding

                                  November 13, 2019

                            MEMORANDUM OPINION
                    Before QUINN, C.J., and PIRTLE and PARKER, JJ.

      Appellant David Carrillo was charged with capital murder for the shooting deaths

of Jennifer Cruz and Albert Martinez during the same criminal transaction. The State did

not seek the death penalty. A jury found appellant guilty as charged, and the trial court

sentenced him to life in prison without the possibility of parole. On appeal, he asserts

four issues which include a challenge to the sufficiency of the evidence that he had the

requisite mental state to commit murder, error regarding the admission of evidence

allegedly more prejudicial than probative, and the omission of an instruction on self-

defense. We affirm.
       Issue One – Sufficiency of the Evidence

       Appellant first argues the evidence was insufficient to prove he manifested the

requisite mental state to murder Cruz and Martinez, that mens rea being the intent to

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

§ 19.02(b)(1) (West 2019) (so describing the mens rea of murder). We overrule the issue.

       To determine whether sufficient evidence supports a criminal conviction, a

reviewing court must ask “‘whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.

2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)) (emphasis in original). A court defers to the responsibility of the fact-finder to

fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences

from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). This standard applies equally to both circumstantial and direct evidence. Id.

Regarding circumstantial evidence, it is as probative as direct evidence in establishing

guilt and may alone be sufficient to prove guilt. Ramsey v. State, 473 S.W.3d 805, 809

(Tex. Crim. App. 2015).

       We further note that a firearm is a deadly weapon.          TEX. PENAL CODE ANN.

§ 1.07(a)(17)(A) (West Supp. 2018). Using a deadly weapon in a deadly fashion allows

an inference that the defendant intended to kill. Staley v. State, 887 S.W.2d 885, 889

(Tex. Crim. App. 1994); Dronso v. State, No. 02-10-00192-CR, 2012 Tex. App. LEXIS

3720, at *9-10 (Tex. App.—Fort Worth May 10, 2012, pet. ref’d) (mem. op., not designated

for publication). Appellant did that; he used a deadly weapon in a deadly way by shooting

his ex-girlfriend (Cruz) and her then-boyfriend (Martinez). According to the evidence of

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record, so too had he 1) told Trevino (a person who had a prior relationship with Cruz) he

had a “.40 cal flame thrower on [his] hip” during the time Trevino dated Cruz, 2) threatened

Torrez (another male who had a relationship with Cruz) to stay away from her or

something bad would happen, 3) spoke to his co-workers about problems with Cruz’s

new boyfriend the day before the shooting, 4) asked a third party to acquire a silencer for

him, 5) spoke to Sustaita (appellant’s girlfriend) about shooting and killing people in

general, 6) mentioned to her that such was what he wanted to do to his “ex and her

boyfriend,” 7) told her he would put everything to rest if he had a silencer, 8) went to

Cruz’s house between 12:00 a.m. and 4:00 a.m. with a handgun purportedly to scare

them, 9) entered the house through a window, 10) found his targets in the bedroom, 11)

exhibited the handgun to them, 12) shot Martinez once in the head or neck, 13) shot Cruz

four times and struck her head and torso, 14) left, 15) afterwards told his girlfriend to tell

others that he was with her the entire night, and 16) eventually claimed self-defense.

Applying the requisite standard of review to the aforementioned evidence, we find the jury

could have reasonably inferred from it, beyond a reasonable doubt, that appellant acted

intentionally or knowingly when he caused the deaths of Cruz and Martinez.

       Issue Two – Admission of Text Message

       Appellant argues in his second issue that the trial court abused its discretion when

it admitted the threatening text message he sent to Trevino almost two years before the

deaths. The danger of unfair prejudice substantially outweighed its probative value, he

posits. So, the evidence was inadmissible under Texas Rule of Evidence 403. We

overrule the issue.

       Appellant did not assert below the ground for excluding the evidence now urged

on appeal. Therefore, it was not preserved for review. Morgan v. State, No. 07-16-00170-

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CR, 2017 Tex. App. LEXIS 2318, at *5 (Tex. App.—Amarillo Mar. 16, 2017, no pet.) (mem.

op., not designated for publication).

       Issue Three – Admission of 9-1-1 Recording

       In his third issue, appellant contends that the trial court erred in admitting the

recording of Cruz’s 9-1-1 call. It too was inadmissible under Rule 403, according to him.

We overrule the issue.

       The applicable standard of review is abused discretion. Nieto v. State, No. 07-11-

00290-CR, 2013 Tex. App. LEXIS 8184, at *4 (Tex. App.—Amarillo July 3, 2013, no pet.)

(mem. op., not designated for publication). Under it, we do not disturb the trial court’s

decision if it falls within the zone of reasonable disagreement. Ryder v. State, 514 S.W.3d

391, 398 (Tex. App.—Amarillo 2017, pet. ref’d). Additionally, error in a trial court’s Rule

403 determination is rare given that the trial court is in a superior position to gauge the

impact of the evidence and to balance the relevant factors. Freeman v. State, No. 07-11-

0407-CR, 2012 Tex. App. LEXIS 6996, at *10 (Tex. App.—Amarillo Aug. 20, 2012, pet.

ref’d) (mem. op., not designated for publication). Those relevant factors normally consist

of 1) the probative value of the evidence; 2) its potential to impress the jury in some

irrational and indelible way; 3) the time spent developing the evidence; and 4) the need

for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012).

Finally, there is a presumption that relevant evidence is more probative than prejudicial.

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g).

       In the case at bar, a female voice in the recording can be heard referring to David

and David being the one with the gun. Appellant’s first name is David. So, it is relevant

to proving the shooter’s identity. And, in hearing the speaker plead for her life, it can also



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be interpreted as evidence indicating that appellant was the aggressor as opposed to

someone being attacked; that would tend to negate his later claim of self-defense.

       As for its impact, it can leave an impression on a juror. Yet, the picture painted

here by the recording is no more impressionable than being shown threatening texts from

appellant, hearing appellant’s girlfriend reveal his desire to eliminate his problems if he

only had a silencer for his gun, hear appellant’s own words describing what he did, and

seeing pictures of his dead victims. Moreover, portions of the recording that may have

contained more impressionable noises, like moaning, were not played.

       As for the time spent developing the evidence, appellant did not discuss that factor

in depth. Yet, presentation of the 9-1-1 recording took little time before the jury when

compared to the remainder of the State’s evidence. And, the recording itself was only

some five minutes in duration.

       Given our balancing of the aforementioned criteria, we cannot say that concluding

the probative value of the 9-1-1 call was not substantially outweighed by its potential for

unfair prejudice fell outside the zone of reasonable disagreement. Consequently, the trial

court did not abuse its discretion in admitting it.

       Issue Four – Self-Defense Instruction

       In his fourth issue, appellant argues the trial court abused its discretion by refusing

to submit his requested instruction on self-defense. We overrule the issue.

       The standard of review is again abused discretion. See Ortega v. State, No. 11-

17-00036-CR, 2019 Tex. App. LEXIS 660, at *11 (Tex. App.—Eastland Jan. 31, 2019,

pet. ref’d) (mem. op., not designated for publication). Given that standard, we must affirm

the trial court’s ruling if it was reasonably supported by the record and was correct under



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any theory of law applicable to the case. State v. Esparza, 413 S.W.3d 81, 83 n.3 (Tex.

Crim. App. 2013).

       Next, statute provides that a person is justified in using deadly force against

another when, among other things, the actor reasonably believes the deadly force is

immediately necessary to protect the actor against the other’s use or attempted use of

unlawful deadly force. TEX. PENAL CODE ANN. § 9.32(a)(1), (2)(A). There is evidence of

record that Martinez may have sometime or another told appellant he had a gun and did

not fear appellant. There is also evidence that Martinez may have left the bed and “came

at” appellant upon discovering that appellant had surreptitiously entered the house and

bedroom without invitation and during the wee morning hours. Yet, there was no evidence

that Martinez brandished a firearm before being shot. Nor was a firearm discovered at

the scene.    Nor is there evidence that Martinez, or anyone other than appellant,

brandished any type of deadly weapon. This is of import given Carsner v. State, No. 08-

11-00326-CR, 2018 Tex. App. LEXIS 4400 (Tex. App.—El Paso June 15, 2018, pet.

dism’d) (mem. op., not designated for publication).

       In Carsner, the court found that the appellant was not entitled to a self-defense

instruction because the evidence did not show “the victims were using or attempting to

use deadly force against her.” This was even so when the appellant testified that her

stepfather was “rushing” her. Id. at *31. The court reasoned that because there was no

evidence that the stepfather had a weapon or that he was “approaching her in an attempt

to use deadly force against her,” then no evidence existed that warranted self-defense or

an instruction on same. The situation is no different here.

       Moreover, we hesitate to say that a home intruder 1) appearing with a firearm, 2)

while the inhabitants slept, 3) with the intent to kill the inhabitants has the right to defend

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himself when one of the inhabitants opts to thwart the attack. Just as a person committing

robbery generally has no right of self-defense, Gorman v. State, Nos. 04-03-00311-CR,

04-03-00312-CR, 2004 Tex. App. LEXIS 11921, at *2 (Tex. App.—San Antonio Nov. 3,

2004, pet. ref’d) (mem. op., not designated for publication); Dillard v. State, 931 S.W.2d

689, 697 (Tex. App.—Dallas 1996, pet. ref’d, untimely filed), a home intruder bent on

harm and brandishing a deadly weapon should also lack the right to claim self-defense

when his intended target fights back. This is not a situation where the evidence begins

to suggest that appellant had abandoned his midnight threat to Cruz or Martinez.

       Due to the foregoing circumstances and authority, we cannot say that the trial court

abused its discretion in refusing to instruct the jury on self-defense. And, having overruled

each issue, we affirm the trial court’s judgment.



                                                         Per Curiam

Do not publish.




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