                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-13-00306-CR

                                      Arnoldo David LOPEZ,
                                            Appellant

                                                v.

                                       The STATE of Texas,
                                             Appellee

                    From the 79th Judicial District Court, Brooks County, Texas
                                 Trial Court No. 08-07-09930-CR
                          Honorable Richard C. Terrell, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Karen Angelini, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: August 6, 2014

AFFIRMED

           A jury found Arnoldo Lopez guilty of the murder of Roberto Ramirez. See TEX. PENAL

CODE ANN. § 19.02 (West 2011). On appeal, Lopez argues that 1) the trial court erred in failing to

sua sponte instruct the jury on lesser included offenses in the guilt/innocence stage, 2) the trial

court erred in denying his request to instruct the jury on sudden passion in the punishment stage,

and 3) he received ineffective assistance of counsel. We affirm.
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                                              BACKGROUND

        In June 2008, Lopez and Albert Martinez were with some of their friends drinking beer in

a vacant lot in Falfurrias, Texas. Martinez testified he was talking to another person when Ramirez

arrived. When Martinez heard Lopez and Ramirez fighting, he turned around and saw Lopez

kicking and beating Ramirez, who was on the ground and not fighting back. Martinez stopped the

fight by grabbing Lopez and taking him away from the lot.

        Ramirez was taken to the hospital where he lived for a month in a coma before dying. A

jury convicted Lopez of Ramirez’s murder, and Lopez was sentenced to fifty years in prison and

fined $10,000. After this court dismissed Lopez’s appeal for lack of jurisdiction, 1 the Court of

Criminal Appeals granted him an out-of-time appeal. 2 Lopez then filed a motion for new trial,

which was denied. He timely filed this appeal.

                             LESSER-INCLUDED OFFENSE INSTRUCTIONS

        Lopez complains he was egregiously harmed by the trial court’s failure to sua sponte

instruct the jury on the lesser-included offenses of manslaughter, see TEX. PENAL CODE ANN.

§ 19.04 (West 2011), and criminally negligent homicide, see id. § 19.05 (West 2011).

        “The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately

sets out the law applicable to the specific offense charged.” Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007). “But it does not inevitably follow that he has a similar sua sponte duty to

instruct the jury on all potential defensive issues, lesser-included offenses, or evidentiary issues.”

Id. A lesser-included offense is a defensive issue that is not “the law applicable to the case” unless

the defendant requests the issue or objects to its omission from the charge. See Tolbert v. State,


1
  Lopez v. State, No. 04-10-00630-CR, 2010 WL 4243436 (Tex. App.—San Antonio Oct. 27, 2010, no pet.) (per
curiam) (mem. op., not designated for publication).
2
  Ex parte Lopez, No. AP-76938, 2013 WL 105037 (Tex. Crim. App. Jan. 9, 2013) (per curiam) (not designated for
publication).

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306 S.W.3d 776, 781 (Tex. Crim. App. 2010) (holding trial court in capital murder trial was not

required to sua sponte instruct the jury on lesser-included offense of murder). Because Lopez did

not request instructions on lesser-included offenses and did not object to the charge on that ground,

the trial court had no duty to so charge the jury. See id.; see also Zamora v. State, 411 S.W.3d 504,

513 (Tex. Crim. App. 2013) (stating that Almanza egregious harm analysis does not apply to

defensive issues because they are forfeited if not preserved at trial).

                                      SUDDEN-PASSION INSTRUCTION

        Lopez complains that the trial court reversibly erred in the punishment stage by denying

his request to instruct the jury on the issue of sudden passion.

        If a defendant is convicted of murder, “the defendant may raise the issue as to whether he

caused the death under the immediate influence of sudden passion arising from an adequate cause”

at the punishment stage of a trial. 3 TEX. PENAL CODE ANN. § 19.02(d). The Court of Criminal

Appeals has held that the record must at least support the following inferences to justify the

submission of a sudden-passion instruction:

             1. that the defendant in fact acted under the immediate influence of a
                passion such as terror, anger, rage, or resentment;

             2. that his sudden passion was in fact induced by some provocation by
                the deceased or another acting with him, which provocation would
                commonly produce such a passion in a person of ordinary temper;

             3. that he committed the murder before regaining his capacity for cool
                reflection; and

             4. that a causal connection existed between the provocation, passion,
                and homicide.




3
  If the defendant proves the issue by a preponderance of the evidence, the severity of the offense is reduced from a
first-degree felony to a second-degree felony. TEX. PENAL CODE ANN. § 19.02(d).

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Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013) (internal citations and quotation

marks omitted).

       “[A] sudden passion charge should be given if there is some evidence to support it, even if

that evidence is weak, impeached, contradicted, or unbelievable.” Trevino v. State, 100 S.W.3d

232, 238 (Tex. Crim. App. 2003). “However, the evidence cannot be so weak, contested, or

incredible that it could not support such a finding by a rational jury.” McKinney v. State, 179

S.W.3d 565, 569 (Tex. Crim. App. 2005). “If the evidence thus raises the issue from any source,

during either phase of trial, then the defendant has satisfied his burden of production, and the trial

court must submit the issue in the jury charge—at least if the defendant requests it.” Wooten, 400

S.W.3d at 605.

       Lopez argues that the issue of sudden passion was raised at trial by evidence of an ongoing

feud between him and Ramirez and by Martinez’s written statement to the police, which Lopez

contends supports an inference that Ramirez initiated the fight with Lopez. The State argues that

this evidence does not support an inference that Ramirez provoked Lopez. We agree.

       Martinez’s statement recited that Ramirez pulled his car into the lot and parked, and that

“[a]s soon as [Ramirez] got off the car, him and [Lopez] started to argue about something.”

Martinez’s statement does not support an inference that some act of Ramirez precipitated the fight

with Lopez, much less that Ramirez did some act that would commonly produce a sudden passion

in a person of ordinary temper. See Wooten, 400 S.W.3d at 605. The mere fact that Ramirez drove

into the vacant lot is insufficient to support a sudden-passion instruction. Finally, although there

was evidence of a previous conflict between Lopez and Ramirez, Lopez admitted that the last time

he had a problem with Ramirez was three or four years before the murder. This evidence does not

support the submission of a sudden-passion instruction because a “sudden passion” cannot be



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solely the result of a former provocation. See TEX. PENAL CODE ANN. § 19.02(a)(2); McKinney,

179 S.W.3d at 570.

       Lopez has not directed us, nor have we found, any other evidence in the record that might

support an inference that Ramirez provoked Lopez into a sudden passion. Without such evidence,

the trial court correctly denied Lopez’s requested instruction.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In his final issue, Lopez contends his trial counsel rendered ineffective assistance in

violation of the Sixth Amendment because he 1) failed to adequately investigate Ramirez’s

medical records and 2) relinquished his role as a defender of his client during closing argument.

To prevail on his claim, Lopez must show by a preponderance of the evidence 1) that his trial

counsel’s performance was deficient and 2) that his counsel’s deficient performance prejudiced

Lopez’s defense. See Strickland v. Washington, 466 U.S. 668 (1984); Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002).

           A. Counsel’s Investigation

       Lopez contends his trial counsel was ineffective because he did not fully investigate

Ramirez’s medical records or consult an expert about their contents. Lopez contends that the

evidence raised questions about whether Ramirez’s death may have been caused in whole or in

part by improper medical treatment or pre-existing medical conditions. Lopez contends that his

attorney should have conducted a full investigation of Ramirez’s medical history and records.

Lopez argues that this was not a “strategic” decision, but an economic one and that “[t]here is no

suggestion that trial counsel declined to fully investigate Ramirez’s medical records because he

made a strategic decision that such an investigation was unnecessary or likely to be fruitless or

counterproductive.” Lopez’s argument misunderstands his burden on this claim.



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        Lopez has the burden to show that his counsel did not make a strategic or reasoned choice

regarding whether to retain a medical expert, whether and how to investigate Ramirez’s medical

history, and whom to subpoena. There is no evidence about counsel’s reasons for not retaining a

medical expert to review Ramirez’s records or to testify about them at trial. And there is no

evidence of counsel’s reasons for not subpoenaing Ramirez’s doctors and their records. Our review

of his counsel’s performance is “highly deferential,” and we presume that his actions fell within

the wide range of reasonable and professional assistance. See Bone, 77 S.W.3d at 833. Based on

this record, we cannot say that Lopez’s counsel did not have strategic or otherwise justifiable

reasons for his decisions.

        In addition, a claim of ineffective assistance based on trial counsel’s general failure to

investigate the facts of the case fails absent a showing of what the investigation would have

revealed that reasonably could have changed the result of the case. Stokes v. State, 298 S.W.3d

428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Lopez has not shown how his

counsel’s consultation with a medical expert concerning Ramirez’s records prior to trial would

have impacted the outcome of his trial.

            B. Counsel’s Closing Arguments

        Lopez also contends trial counsel was ineffective because he essentially conceded in his

closing argument at the guilt/innocence stage that the State had met its burden of proof.

        Although Lopez’s characterization of his counsel’s argument is accurate to a point, it does

not tell the whole story. His counsel also told the jury that “[t]he real fight is coming later and there

are two sides to the story.” In the punishment phase of the trial, his counsel put on evidence that

Ramirez had threatened Lopez’s family with a gun and a machete in the past. He argued that Lopez

was frightened of Ramirez and that he did not kill Ramirez in cold blood. He pleaded for the jury



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to be proportionate and not to listen to the State’s call for law enforcement, which he dismissed as

a “call for vengeance.”

       The record suggests that counsel may have made a strategic decision not to contest Lopez’s

guilt in order to maintain his credibility with the jury so that he could more persuasively argue for

leniency in sentencing. Counsel argued to the jury at the close of the guilt/innocence stage that he

was not going “to cry crocodile tears or in any way try to convince you that this thing did not

happen or that my client was not involved” and that he did not wish to “insult” the jury. See Posey

v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998) (reasoning that it may be sound trial strategy

to not request a jury instruction on a defensive issue when the evidence raising the defense is so

unworthy of belief that the defendant and his counsel risk losing their credibility with the jury). In

the face of eyewitness testimony that Lopez beat Ramirez so severely that he fell into a coma and

ultimately died, we cannot say that such a strategy would be objectively unreasonable under

prevailing professional standards. We conclude that Lopez failed to meet his burden to show that

counsel’s performance was deficient.

                                           CONCLUSION

       We affirm the judgment of the trial court.


                                                   Luz Elena D. Chapa, Justice

Do Not Publish




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