                 NUMBER 13-08-00490-CR

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG

NELSON GARCIA DELGADO,                                 Appellant,

                                v.

THE STATE OF TEXAS,                                    Appellee.


             On appeal from the 332nd District Court
                   of Hidalgo County, Texas.


                 MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Perkes
             Memorandum Opinion by Justice Perkes
       Appellant, Nelson Garcia Delgado, appeals his capital-murder conviction for

murdering Claudia Lorena Zamora and her unborn child during the same criminal

transaction. He contends: (1) the trial evidence was legally insufficient to show he

intentionally or knowingly killed the unborn child; and (2) the trial court erred when it

denied his request for a lesser-included-offense instruction on manslaughter. We affirm.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

           At the time of the murders, appellant and Zamora, had been dating for several

months and appellant was living with Zamora and her two children from a prior

relationship. Appellant and Zamora knew Zamora was about three months pregnant

with their child. In the weeks leading up to the murders, their relationship was troubled,

and Zamora had confronted appellant about whether he was seeing other women. The

Saturday night before the murders, Zamora and her two young sons followed appellant to

a disco where Zamora saw him leave with another woman. Later, Zamora told her sons

she was thinking of leaving appellant. She took them to their father‘s house and after

visiting with a friend, she met appellant at their apartment shortly after midnight on

Monday, the day of the murders.

       Appellant gave the Edinburg police three recorded statements which were

admitted in evidence at trial: two audio statements given in the hospital on the day of the

murders and one video statement given at an Edinburg Police office on the day after the

murders. Appellant did not testify at trial.1

       According to appellant, he and Zamora started arguing at about half past midnight.

In his statements, appellant admitted he was a ―woman chaser‖ and that shortly before he

       1
           Outside the presence of the jury, appellant stated under oath on the record that he decided
voluntarily not to testify at trial.
                                                  2
strangled her, Zamora had confronted him about leaving the disco with the other woman.

In his video statement, appellant said he became very angry when Zamora confronted

him about the other woman. Appellant also claimed that during the argument, Zamora

angrily entered the bathroom and after about ―one minute‖ emerged from the bathroom

and showed him something bloody and slimy, and said ―I took it out.‖ According to

appellant, Zamora then returned to the bathroom and he heard the toilet flush. He also

said Zamora told him she was in great pain from removing his ―cynicism from her womb.‖

Appellant said in his statements that he believed it was their unborn child and that Zamora

had removed it from her body and then flushed it down the toilet. Appellant said this

provoked him to call Zamora a ―murderer‖ and punch her twice and then strangle her.

Appellant said he held her neck in an arm hold, for what he believes was thirty seconds.

In his first recorded statement given to police in the hospital, appellant told police that

after he squeezed Zamora‘s neck, because of her ―loss of, of [sic] her mind,‖ he ―took her

into the car . . . and closed the door.‖ In this statement, he said Zamora ―wasn‘t coming

around‖ and ―did not move‖ at this time.

      The evidence shows that after drinking some juice in the kitchen, appellant

dragged Zamora‘s body to his car and staged a car accident to cover up the murders. In

his statements, appellant alternated between saying Zamora ―lost consciousness‖ or

―fainted‖ during the choking, and saying that she was gasping and still able to walk some

with his assistance even after he choked her. When police found her body in the car,

Zamora‘s hair and clothing were wet. Appellant‘s explanation for Zamora‘s wet hair and

clothing is that he slipped en route to the car, causing Zamora to fall into a collapsed

above-ground pool. At various points in his statements, even when claiming Zamora

                                            3
was still gasping and conscious, the language appellant used showed he ―put‖ her in the

car because she was not conscious. For example, appellant said that while inside the

car, he pulled Zamora‘s dress down for her, ―sat her down,‖ and decided whether to

buckle her seatbelt. Appellant did not complain during the interview at the police office

when a police officer used the phrase, ―when you dragged her to the car.‖ Police found

drag marks in the dirt outside the apartment, and Zamora‘s body had grass and other

similar debris on it.   Her dress and brassiere were bunched up around the chest,

consistent with dragging. Appellant said he lifted her from the back underneath her

arms.

        At about 3:45 a.m., Edinburg police responded to an apparent one-car auto

accident on Highway 281 in Hidalgo, County. Traffic was light. Appellant had crashed

his car into a hollow, striped plastic barrier, near an exit ramp. There was only minor

front-end damage to appellant‘s car. The airbags did not deploy. There were no skid

marks on the road, and the only debris at the scene was the front license plate of

appellant‘s car.

        Zamora‘s body was in the front passenger seat. She was not wearing a seatbelt

and had slid partially off of the seat onto the floor. Her back rested on the seat of the

chair, and her legs rested on the floor. Responding officers noticed Zamora had no

purse, identification, or shoes. She was not wearing a safety belt and the pooling of

blood under her skin indicated to them she had died some time ago; before the car

accident. Zamora‘s dress was soaking wet, and her hair was also wet. There was no

evidence that her body struck the dashboard during the collision. There was no external

injury or bleeding on Zamora that would suggest she was injured in the collision.

                                           4
      Appellant was found slumped over the steering wheel drooling, but not bleeding or

visibly injured. Appellant was wearing his seatbelt. He did not respond to officers, but

officers at the scene noticed the car was in ―park‖ when they arrived and found this

unusual. The officers concluded it was an intentional auto collision.

      Appellant was taken to the emergency room at the McAllen Medical Center. At

about 8:30 a.m., appellant was admitted to a critical care unit from the emergency room

because he was unresponsive. Trial testimony showed that at the hospital, no medical

explanation could be found for appellant‘s lack of responsiveness. Appellant suffered no

serious injuries. Investigator Oziel Plata of the Edinburg Police Department testified

based on his observations of appellant at the hospital that appellant was probably just

acting unconscious. Both the lead nurse who cared for him after his transfer to critical

care and Investigator Daniel Ochoa of the Edinburg Police Department concluded

appellant was malingering a loss of consciousness.

      Appellant was intubated and appeared unconscious, but when the nurse began a

routine suction procedure to remove mucus produced by the lungs, appellant became

combative and aggressive. The nurse testified that normally, an unresponsive patient

remains unresponsive during suction. Ochoa and Plata were in the hospital room when

evidence samples were extracted from appellant. Ochoa and Plata both noticed that

appellant‘s body tensed up in anticipation when a person approached appellant to take a

pubic-hair sample. After collection of the sample, Ochoa watched appellant from outside

the hospital room and saw him open his eye occasionally. More than once, Ochoa also

noticed a tear drop coming from appellant‘s eye. Later, after the breathing tube was



                                            5
removed and appellant agreed to talk to Ochoa at the hospital, appellant asked Ochoa

whether he killed Zamora or whether Zamora died in the car wreck.

         An autopsy revealed Zamora died of asphyxiation by strangulation before

appellant placed her body in the car. Post-mortem medical examination of Zamora

revealed no evidence of miscarriage or attempted abortion. There was no blood or other

evidence of attempted abortion in the apartment. The unborn child was normal and

healthy, with a healthy placenta and amniotic sac in place. The autopsy revealed the

unborn child died because the mother died, and the forensic pathologist who performed

the autopsies testified the unborn child would have died within about a minute of the

mother‘s death due to lack of oxygen.

         A jury found appellant guilty of capital murder, and the trial court sentenced him to

life imprisonment without parole in the Institutional Division of the Texas Department of

Criminal Justice. This appeal followed.

                                             II. DISCUSSION

    A.       Is the Evidence Legally Sufficient to Support Appellant’s Conviction?

         By his first issue, appellant argues the evidence the State presented at trial is

legally insufficient to show he intentionally or knowingly caused the death of the unborn

child.2 Appellant emphasizes there is no evidence of trauma to the mother‘s abdomen

and the autopsy of the unborn child revealed the child was healthy and normal. In

making his argument, appellant does not limit himself to a no-evidence complaint, but
         2
           At least once in his brief, appellant complains the State did not prove he ―intentionally and
knowingly‖ caused the death of the unborn child (emphasis added). As demonstrated below in this
opinion, under the applicable legal standard, the State was not required to prove both mental states.
Appellant cites the correct legal standard in his brief. We do not treat appellant‘s occasional use of the
conjunctive rather than the disjunctive as an issue on appeal because appellant has not included argument
or citation to legal authority in support of any contention that the State was required to prove both mental
states. See TEX. R. APP. P. 38.1(i).
                                                     6
also contends the evidence presented at trial affirmatively refutes the State‘s contention

he intended to murder the unborn child. As a result, in its response brief, the State

addressed the legal and factual sufficiency of the evidence to show appellant‘s intent to

cause the death of the unborn child, though appellant did not designate or brief the factual

sufficiency of the evidence as a separate issue.

       1.   Standard of Review for Legal Sufficiency

       The Texas Court of Criminal Appeals has determined that ―the Jackson v. Virginia

legal-sufficiency standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt.‖ Brooks v. State,

323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.). Thus, we do not refer

separately to legal or factual sufficiency and we will review the evidence under the

Jackson v. Virginia standard as summarized below.

       Evidence is insufficient if, when viewed in a light most favorable to the verdict, a

rational jury could not have found each element of the offense beyond a reasonable

doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jackson v.

Virginia, 443 U.S. 307 (1979)). In evaluating a legal-sufficiency challenge, we consider

all of the evidence and view it in the light most favorable to the verdict. Jackson, 443

U.S. at 319. The issue on appeal is not whether we, as a court, believe the State‘s

evidence or believe that appellant‘s evidence outweighs the State‘s evidence. Wicker v.

State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned

unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v.

State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of

                                             7
the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or

disbelieve any portion of the witnesses‘ testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of

fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47

(Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.

State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (citing Jackson, 443 U.S. at 319).

       2.   The Elements of Capital Murder in this Case

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State‘s burden of proof, or unnecessarily

restrict the State‘s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A person commits capital murder when he ―murders

more than one person . . . during the same criminal transaction.‖ TEX. PENAL CODE ANN.

§ 19.03(a)(7)(A) (West 2003). A person commits murder if he ―intentionally or knowingly

causes the death of an individual.‖ Id. § 19.02(b)(1). ―A person acts intentionally with

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

cause the result.‖ Id. § 6.03(a) (West 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).

                                              8
       ―‗Person‘ means an individual . . .‖ and ‗[i]ndividual‘ means ―a human being who is

alive, including an unborn child at every stage of gestation from fertilization until birth.‖

Id. § 1.07(a)(26), (38) (West 2003). Under the Texas Penal Code, ―‗[d]eath‘ includes, for

an individual who is an unborn child, the failure to be born alive.‖ Id. § 1.07(a)(49). It

follows from these provisions that a person who intentionally or knowingly causes the

death of a woman and her unborn child, at any stage of gestation, commits capital

murder. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007).

       3.   The Legal Sufficiency of the Evidence

       Viewing the evidence in the record in the light most favorable to the jury‘s verdict, it

is sufficient to prove beyond a reasonable doubt that appellant intentionally or knowingly

caused the death of the unborn child. Evidence of injury to the mother‘s abdomen is not

necessary to prove appellant intentionally or knowingly killed the unborn child. See

Estrada v. State, 313 S.W.3d 274, 279 & 305 (Tex. Crim. App. 2010) (finding evidence

sufficient to sustain capital-murder conviction because defendant knew complainant was

pregnant and even though he did not stab unborn child, ―a jury could reasonably infer‖

defendant was aware that strangling a pregnant woman and stabbing her back, neck, and

head a total of thirteen times was reasonably certain to kill the unborn child); Eguia v.

State, 288 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (finding evidence

sufficient to sustain capital-murder conviction in the absence of abdominal injury to

mother, when mother was visibly in later stages of pregnancy and defendant stabbed her

neck, causing mother to die of blood loss).

       In this case, the medical evidence showed appellant caused the death of Zamora

in a way from which a jury could rationally infer he intentionally or knowingly caused the

                                              9
death of her unborn child. See Estrada, 313 S.W.3d at 305. The forensic pathologist

who performed the autopsy on Zamora testified at trial that Zamora suffered no serious

injury in the auto collision. The forensic pathologist testified further that Zamora died of

asphyxia by strangulation and that she would have died after being strangled for about

fifteen seconds. Bruising and lacerations inside Zamora‘s mouth under her lip, including

apparent outlines made by Zamora‘s teeth, suggested to the forensic pathologist that

someone held his hand over Zamora‘s mouth with force.              Based on the medical

evidence, including the petite stature of Zamora and the extent of internal hemorrhaging

in the neck area, the forensic pathologist testified that the person who strangled Zamora

could not have done so accidentally because it would have been obvious from Zamora‘s

face that she was dying. The forensic pathologist testified that after a person is strangled

in this manner, they will collapse dead. She testified Zamora‘s unborn child would have

died within approximately one minute of Zamora‘s death due to lack of oxygen.

       Appellant stated he grabbed Zamora‘s neck from behind and then squeezed with

his arm while ―like facing her by her side.‖ The record shows Zamora was five feet tall

and appellant is five feet, nine inches tall. In his various statements admitted in evidence

at trial, appellant stated he ―grabbed her like a – a gladiator,‖ ―squeezed‖ her neck, and

―felt like she would die.‖ On video admitted in evidence, appellant demonstrated on a

police investigator‘s neck how he held her neck in an arm hold and stated he believed he

held her in this position for about thirty seconds. Appellant stated he did not recall

Zamora shouting or making any sounds, but while he was holding her neck she lost

consciousness or fainted because of lack of oxygen. Appellant said Zamora fell down

after he released her neck.

                                            10
      In addition, circumstantial evidence indicating a consciousness of guilt also

showed appellant‘s intent to murder Zamora‘s unborn child. See Eguia, 288 S.W.3d at 9

(finding intent to kill unborn child from circumstantial evidence). Circumstantial evidence

must often be used to prove intent because the intent of the accused is concealed within

his own mind and can only be determined from his words, acts, and conduct. Smith v.

State, 965 S.W.2d 509, 518 (Tex. Crim. App.1998). Circumstantial evidence indicating a

consciousness of guilt, such as false statements about the crime or an attempt to cover it

up, are relevant to show intent. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.

2000); Torres v. State, 794 S.W.2d 596, 598–600 (Tex. App.—Austin 1990, no pet.). ―A

‗consciousness of guilt‘ is perhaps one of the strongest kinds of evidence of guilt.‖ Hyde

v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi 1993, pet. ref‘d.) (quoting

Torres, 794 S.W.2d at 598). ―It is consequently a well accepted principle that any

conduct on the part of a person accused of a crime subsequent to its commission, which

indicates a ‗consciousness of guilt‘ may be received as a circumstance tending to prove

that he committed the act with which he is charged.‖ Torres, 794 S.W.2d at 598 (internal

quotations omitted).

      A criminal defendant‘s post-incident statements about how a child was injured can

indicate a consciousness of guilt, especially when the statements are grossly inconsistent

with the medical findings.     See Baldwin v. State, 264 S.W.3d 237, 242-43 (Tex.

App.—Houston [1st Dist.] 2008, pet. ref‘d) (inferring defendant intentionally caused injury

from defendant‘s failure to render aid and defendant‘s efforts to conceal the cause of

injury); Barcenes v. State, 940 S.W.2d 739, 745 (Tex. App.—San Antonio 1997, pet.

ref‘d) (holding evidence that appellant tried to cover up his actions and expert medical

                                            11
testimony discrediting appellant‘s explanation of injuries was sufficient to sustain murder

conviction).     Likewise, a criminal defendant‘s ―changing story‖ about the crime and

surrounding circumstances can show intent. See Couchman v. State, 3 S.W.3d 155,

163–64 (Tex. App.—Fort Worth 1993, pet. ref‘d).

        Viewing the evidence in the light most favorable to the verdict, a rational jury could

have found appellant lied in his statements about the cause and time of the unborn child‘s

death. In his statements, appellant said that before he strangled Zamora, she showed

him what he believed to be their aborted child, but the medical evidence showed no

evidence of abortion or miscarriage and there was no blood in the bathroom where

appellant said the self-performed abortion occurred. Appellant further revealed he knew

the child was dead when he gave his first statements to the police at the hospital, just

hours after the car wreck, when he tried to blame the unborn child‘s death on Zamora.

Based on the foregoing, the jury acted within its province to disbelieve appellant‘s version

of the events. See Turro, 867 S.W.2d at 47; Sharp, 707 S.W.2d at 614.

        The staged car wreck is also circumstantial evidence that appellant intentionally or

knowingly caused the death of Zamora‘s unborn child. Rather than seeking medical help

for Zamora or the unborn child, appellant put the unborn child through a car wreck.3

When asked why he took Zamora to the car after strangling her, appellant offered no

answer other than to describe that his mind was blank and he could not make a decision.

Appellant‘s statements about Zamora‘s condition when he took her to the car were

inconsistent. In his first recorded account, he said he ―took her into the car‖ and she


        3
            At trial, the forensic pathologist testified that generally a car wreck is highly likely to cause
trauma to an unborn child, and often causes miscarriage, though in this case, the unborn child was not
injured in the car wreck.
                                                     12
―didn‘t move‖ and she was not ―coming around.‖            In his subsequent statements,

appellant said Zamora walked to the car with his assistance and she was gasping for air

on her way to the car and inside the car.

       Under either account, Zamora‘s condition was grave and appellant did not seek

medical help for the unborn child. When asked if he considered taking Zamora to a

hospital, he answered ―Eh?‖ and when asked if he considered seeking a doctor, he said

he could not make a decision. He said he considered strapping Zamora‘s seatbelt, but

he did not do so though he wore his seatbelt during the drive. Viewing the evidence in

the light most favorable to the verdict, we hold the evidence is legally sufficient to prove

appellant intentionally or knowingly caused the death of Zamora‘s unborn child. See

Estrada, 313 S.W.3d at 305; Baldwin, 264 S.W.3d at 242-43; Barcenes, 940 S.W.2d at

745. Accordingly, we overrule appellant‘s first issue.

   B. Did the Trial Court Err in Denying Appellant’s Requested Lesser-Included-
      Offense Instruction on Manslaughter?

       By his second issue, appellant argues the trial court erred reversibly when it denied

his request for a jury instruction on manslaughter as a lesser-included offense of capital

murder.    The record shows the trial court instructed the jury on murder as a

lesser-included offense, but denied Appellant‘s request for a manslaughter instruction.

Appellant argues the evidence supported a manslaughter instruction because his

statements to the police and the forensic pathologist‘s testimony showed he acted

recklessly rather than with intent to kill Zamora and her unborn child.         In his brief,

appellant characterizes his statements to the police as a denial of intent to kill Zamora and

the unborn child and as saying he acted merely to scare Zamora because she had told

him she had just aborted the unborn child.        Although appellant claims the forensic
                                      13
pathologist‘s testimony supports his argument that his actions were only reckless, he

does not refer to any particular testimony in the record or state how her testimony

supports his argument.      As described below in greater detail, having reviewed the

forensic pathologist‘s testimony, we find no support in her testimony for appellant‘s

argument that his actions were reckless.

        1.   Standard of Review for Lesser-Included-Offense Instruction

        To determine whether an offense is a lesser-included offense of the charged

offense, we perform a two-step analysis.         The first step is a question of law.          We

compare the statutory elements of the greater offense as they were modified by the

particular factual allegations in the indictment with the elements of the lesser offense that

could be included in that greater offense, to determine if the lesser offense meets the

statutory definition of a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535-36

(Tex.   Crim.   App.   2007).      If   the   outcome    of   step   one   is   affirmative,    a

lesser-included-offense instruction may be warranted depending on the outcome of the

second step of the analysis. See id.

        In step two of the analysis, we determine whether there is some evidence in the

record that would permit a jury to rationally find that if the defendant is guilty, he is guilty

only of the lesser-included offense. Id. at 536 (citing Bignall v. State, 887 S.W.2d 21, 23

(Tex. Crim. App. 1994)). While anything more than a scintilla of relevant evidence is

sufficient to entitle the defendant to the instruction, the evidence must establish the

lesser-included offense as a ―valid, rational alternative to the charged offense‖ or the

defendant will not be entitled to the instruction. Wesbrook, 29 S.W.3d at 113; Bignall,

887 S.W.2d at 23. To be entitled to the instruction, it is insufficient that the jury may

                                              14
disbelieve crucial evidence pertaining to the greater offense, but rather, there must be

some evidence directly germane to the lesser-included offense for the jury to consider

before an instruction on a lesser-included offense is warranted. Hampton v. State, 109

S.W.3d 664, 671 (Tex. Crim. App. 2003). In making the determination under step two,

this court should review all the trial evidence. Bignall, 887 S.W.2d at 23. The credibility

of the evidence and whether it conflicts with other evidence or is controverted may not be

considered in determining whether an instruction on a lesser-included offense should be

given. Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009).

      2. Appellant Was Not Entitled to a Manslaughter Instruction

      As shown below, manslaughter is a lesser-included offense of capital murder

under the first step; however, the evidence does not raise the issue of manslaughter.

      By statute, an offense may be a lesser-included offense if:

      (1) it is established by proof of the same or less than all the facts required to
      establish the commission of the offense charged;

      (2) it differs from the offense charged only in the respect that a less serious
      injury or risk of injury to the same person, property, or public interest
      suffices to establish its commission;

      (3) it differs from the offense charged only in the respect that a less culpable
      mental state suffices to establish its commission; or

      (4) it consists of an attempt to commit the offense charged or an otherwise
      included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). In this case, the pertinent inquiry

under step one is whether manslaughter differs from capital murder as charged in the

indictment only in the respect that a less culpable mental state suffices to establish its

commission. See Pierce v. State, 234 S.W.3d 265, 269–70 (Tex. App.—Waco 2007,

pet. ref‘d) (applying Hall to determine whether lesser offense differed from charged
                                         15
offense only in respect of requiring a less culpable mental state). This is the only

argument for the lesser-included offense that appellant raises on appeal.

       The indictment alleged capital murder with the following elements:

       (1)    the appellant;

       (2)    intentionally or knowingly;

       (3)   caused the death of Claudia Lorena Zamora, by choking her with his
       arm; and

       (4)     during the same criminal transaction appellant did then and there
       intentionally or knowingly cause the death of another individual, to-wit: an
       unborn child of Claudia Lorena Zamora, while said unborn child was in
       gestation in Claudia Lorena Zamora, by choking Claudia Lorena Zamora
       with his arm.

In a separate paragraph, the indictment alleged the same elements, except that appellant

choked Claudia Lorena Zamora with his hand (instead of his arm). Manslaughter is

defined as recklessly causing the death of an individual.      TEX. PENAL CODE ANN. §

19.04(a) (West 2003). Recklessly is defined as follows:

       A person acts recklessly, or is reckless, 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. The risk must be of such a
       nature and degree that its disregard constitutes a gross deviation from the
       standard of care that an ordinary person would exercise under all the
       circumstances as viewed from the actor's standpoint.

Id. § 6.03(c) (West 2003). Because manslaughter and capital murder as charged in the

indictment differ only in respect that a less culpable mental state suffices to establish

manslaughter, we conclude that manslaughter is a lesser-included offense of capital

murder as charged in the indictment. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West

2006); Hall, 225 S.W.3d at 536–37; Pierce, 234 S.W.3d. at 270–71. In other words, step

one of the analysis is satisfied.
                                            16
       The question presented under step two is whether appellant‘s statements that he

intended to scare Zamora and that he did not intend to kill Zamora, are evidence he is

guilty only of the lesser-included offense of manslaughter as to both Zamora and her

unborn child. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000)

(analyzing whether defendant‘s statements entitled him to a manslaughter instruction in a

capital-murder trial).

       Murder is defined as intentionally or knowingly causing the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2003). A person acts intentionally with

respect 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) (West 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).

       To raise the issue of manslaughter, the trial record must contain evidence of lack of

intent to kill and evidence that appellant acted recklessly. Mays v. State, 318 S.W.3d

368, 387 (Tex. Crim. App. 2010) (citing Burnett v. State, 865 S.W.2d 223, 229 (Tex.

App.—San Antonio 1993, pet. ref‘d.)); Arnold v. State, 234 S.W.3d 664, 673 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). In other words, there must be affirmative

evidence in the record as to Zamora and her unborn child, respectively, that during the

thirty seconds that appellant squeezed Zamora‘s neck in an arm hold, (1) he did not

intend to cause death or know that death was reasonably certain to occur; and (2) he

consciously disregarded the risk that he would cause death. See Mays, 318 S.W.3d at

387. On the record in this case, appellant cannot make either showing.



                                              17
      The    English-language    transcripts of    appellant‘s three statements      span

approximately eighty-five pages of the reporter‘s record on appeal.        Once in those

statements, appellant stated ―and it was like to scare her . . . .‖       Twice in those

statements, appellant denied he intended to kill Zamora, in one case adding that ―[i]t was

the rage . . . .‖ Several times in his statements, appellant said he acted out of ―rage‖ or

―went mad.‖ Many times, he said he did not think he killed Zamora—speaking of his

post-incident belief about what happened as opposed to commenting on his mental state

at the time he strangled Zamora. At least five times in his second and third statements

combined, appellant said he wanted to die and he said he wished Zamora‘s family would

come kill him. In all three of the statements, appellant described how he and Zamora

argued just before the murders, claiming in each statement that Zamora provoked him by

showing him something he believed to be their aborted child, and indicating she had

removed the child from her womb. In each statement, appellant denied any recollection

of the car crash, and claimed to have first learned of it from Detective Ochoa, the officer

who first interviewed appellant at the hospital. As summarized below, each statement

contained some unique information not common to the other two statements.

             a.   Appellant’s First Recorded Statement

      In appellant‘s first recorded statement about how Zamora died, appellant

essentially admitted he killed Zamora. Specifically, appellant said that after Zamora told

him she had just aborted his son and showed him what he believed to be his aborted

child, he squeezed her neck, she ―fainted‖ and then ―because of her loss of, of her mind‖

he ―took her into the car‖ and she ―didn‘t move‖ and she was not ―coming around.‖ Then,

appellant asked Detective Ochoa, who was interviewing him, if he had killed Zamora. At

                                            18
this time, Ochoa answered that the facts were under investigation and appellant

responded he could not recall how the car crash happened, but said he recalled that he

―grabbed her by the neck, but, not to kill her.‖ Ochoa responded that perhaps it was a

moment of rage or perhaps appellant went too far. Once more, appellant denied intent to

kill Zamora:

       Appellant:    I grabbed her by her neck, but not to kill her.

       Ochoa:        No, you didn‘t mean to kill her.

       Appellant:    It was the rage, but . . . .

(ellipses in the original). After this exchange, appellant then said that after he strangled

Zamora, she ―went very slowly‖ to the car without being carried. Very shortly after

making this statement, appellant asked Ochoa whether he killed Zamora or she died in

the car crash.

               b.   Appellant’s Second Recorded Statement

       In his second recorded statement concerning his argument with Zamora, appellant

added that after he heard the toilet flush and Zamora exited the bathroom, he told her,

―You are a murderer,‖ and then he ―grabbed her neck‖ and ―squeezed.‖                 In this

statement, appellant maintained that after he choked Zamora, she was able to walk to the

car with his assistance and she was gasping for air. In this statement, appellant did not

deny that he intended to kill her at the time he choked her. Rather, he said multiple

times, ―I don‘t believe I killed her‖ and ―I don‘t think I killed her.‖ When told that Zamora

died of asphyxia, appellant responded, ―I overdid it,‖ and then answered questions about

Zamora‘s lack of underwear and provided information about Zamora‘s children and prior

relationship. Toward the end of the statement, Ochoa told appellant that he believed

                                              19
Zamora was dead before appellant took her to the car and appellant responded with a

brief description of his mental state at the time he choked Zamora.              Appellant‘s

description does not show that he lacked intent to kill or consciously disregarded a risk

that he would cause Zamora or the unborn child‘s death by squeezing her neck:

      Ochoa:        Well, I honestly think that she died before you took her to the
                    car.

      Appellant:    Before I took her to the car? But she was like, she like breath
                    [sic] . . . breathing.

      Ochoa:        Well, those must‘ve been her last gasps, or something, I don‘t
                    know. And there . . . You know?

      Appellant:    And there, I told her, look!

                                            ...

      Appellant:    I tell you . . . this question about . . . and about what you say.

      Ochoa:        OK [sic]

      Appellant:    I know I lost my head. I‘m in trouble. I, my head, can‘t take
                    it anymore. She took out my son and from there we go on,
                    disappeared.

      Ochoa:        Yes, obviously, that‘s what happened.         You went too far.
                    You admit it?

      Appellant:    Yes.

             c. Appellant’s Third Statement – A Video Statement

      In his video statement given at an Edinburg police office the day after the murders,

appellant volunteered more background information on the relationship problems he and

Zamora experienced in the time leading up to Zamora‘s death. He spoke about how

Zamora controlled his phone and had confronted him about women‘s phone numbers she

had discovered on his phone. He also volunteered that Zamora‘s ―belly‖ had become

                                            20
―huge‖ within three months and that prior to the night of the murders, he had asked

Zamora if she was ―going to have an abortion,‖ to which he said she answered, ―No, no.‖

According to appellant‘s description, people were starting to comment on Zamora‘s belly.

        Next, appellant described how the Saturday night before the murders he left the

apartment, went to a disco where he met another woman, and then went to that woman‘s

apartment.     Appellant did not know until just before the murders that Zamora had

followed him to the disco. In his video statement he admitted he became ―very angry‖

when Zamora confronted him about seeing another girl. He added that at this point,

Zamora was furious and entered the bathroom alone with the door closed for about ―one

minute‖ and performed what he believed to be an abortion. He said that he then lost his

mind:

        And then my mind was not mine. Truly, I tell you. My mind went blank.
        And she came. She placed herself . . . in . . . like turning her back on me.
        And that was when I grasped her by her neck. I went mad. However, I‘ve
        never thought that I may . . . she . . . I tell you. When suddenly, she . . . like
        . . . apparently she lost consciousness. And when I touched her here, she
        did like . . . argh . . . argh . . .¿No? And she walked a little with . . . with me
        towards here, I was supporting her. Did you hear? But from her back.
        And then, I took . . . I took the car . . . I was already mad. I already don‘t
        know . . . I already did not know what I was going to do. I wanted to kill
        myself. Because when I was in the car, I, I was touching her, I was calling
        her, she did not answer me. I don‘t know whether she died inside the car
        when I was touching her. I was like a . . . You know? I don‘t know when
        she blacked out, when she passed away. At that moment I wanted to kill
        myself.

(ellipses in original). Appellant described that during the argument, Zamora told him that

the unborn child was not his child and that she had removed it from her body. Appellant

said it was the latter that made him angry and he then demonstrated on video, using

Detective Ochoa‘s neck, how he held Zamora‘s neck in an arm hold. Appellant stated he

believes he squeezed her neck in this position for thirty seconds, during which time he did
                                            21
not hear Zamora make any sounds. Appellant said he ―noticed‖ that Zamora then ―lost

consciousness, [sic] because of lack of oxygen.‖

       In this statement, appellant said Zamora was ―not walking,‖ but was walking with

his help to the car because he ―hit her too much.‖ He added that his help consisted of

―carrying‖ Zamora to the car. In this statement, appellant also said Zamora was alive

and gasping for air in the car.        When Detective Trevino of the Edinburg Police

Department asked, appellant denied he accidentally killed Zamora, adding ―[a]nd it was

like to scare her:‖

       Trevino:       Then, you are saying that yes, you did strangle her too much,
                      and yes she died because of that . . . how . . . did you strangle
                      her? You are saying it wasn‘t . . . Was it really an accident?

       Appellant:     No, no, no. I did it. Do you understand? But, I don‘t think I
                      went that far.

       Trevino:       OK. [sic]

       Appellant:     It was like, like what she did to me . . . What she said to me.
                      What she did to me about my son.

       Trevino:       OK. [sic]

       Appellant:     Do you understand? That it was my head, that was blocked.

       Trevino:       OK. [sic]

       Appellant:     And it was like to scare her. But honestly, I‘m going to be
                      straight with you. Maybe she died because of what I did to
                      her. She died a little bit later, a little bit in the car. Do you
                      know what I mean? Because maybe, we wounded her, ah
                      very deep, or maybe not. Maybe, I don‘t (sic) know what to
                      tell you. But, yes, my head went crazy. Yes, and I . . .
                      wasn‘t myself. I am not myself now.

(all ellipses in original). Appellant stated he was enraged and described how after he

strangled her, he and Zamora fell into a collapsed above-ground pool en route to his car.

                                             22
At this point in the statement, appellant said Zamora was walking and holding on to him as

they walked to his car. He said he slipped in the pool, causing both of them to fall in the

pool which made Zamora wet. He also stated that he and Zamora were alone in the

apartment when he strangled her.

               d.    Why the Evidence Does Not Raise the Issue of Manslaughter

       At a minimum, there is no affirmative evidence in the record that appellant did not

know the death of Zamora and her unborn child were reasonably certain to occur when he

strangled Zamora. Appellant‘s statements denying intent to kill cannot be plucked out of

the record and considered in isolation and out of context. See Ramos v. State, 865

S.W.2d 463, 465 (Tex. Crim. App. 1993); Arnold, 234 S.W.3d at 671-72 (citing Godsey v.

State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). In Cardenas, the Court of Criminal

Appeals addressed whether a capital-murder defendant‘s statements that he ‗lost it‘ and

did not intend to hit the victim so hard entitled him to a jury instruction on manslaughter as

a lesser-included offense.        Cardenas, 30 S.W.3d at 392-93.      The court found that

―[g]iven the number of blows, severity of the injuries, and particularly the evidence that the

victim was also strangled with the towel, appellant‘s statement that he ‗lost it‘ and did not

realize how hard he hit the victim does not negate the physical evidence showing an

intent to kill.‖    Id. at 393.   In its analysis, the court emphasized that the forensic

pathologist who testified at trial determined that the cause of the victim‘s death was

asphyxiation by a ligature, consistent with a towel found around the victim‘s neck and

blows to the neck inflicted with such force that the victim‘s airways were ―completely

obstructed.‖ Id.



                                              23
       As in Cardenas, the forensic pathologist‘s testimony is clear that Zamora died by

an intentional or at least knowing act of strangulation. See id. As summarized above

under the legal-sufficiency analysis, appellant‘s own description of his acts and the

circumstantial evidence tending to show consciousness of guilt show he intentionally or

knowingly caused the death of both Zamora and her unborn child. When considered in

context and in light of all the evidence in the record, appellant‘s statements do not amount

to evidence that he is guilty only of manslaughter. See Mathis v. State, 67 S.W.3d 918,

925–26 (Tex. Crim. App. 2002); Cardenas, 30 S.W. 3d at 393; Arnold, 234 S.W.3d at

671–72. Appellant fails to point to any evidence in the trial record that affirmatively

shows that while he strangled Zamora, he was reckless about the likelihood the deaths

would occur. See Mays, 318 S.W.3d at 387.

       Considering all the evidence in the record, including the evidence that appellant

intentionally or knowingly caused the death of Zamora and her unborn child and the

absence of affirmative evidence of recklessness, appellant‘s isolated statements that he

acted to scare Zamora and did not intend to kill, do not constitute evidence upon which a

jury could rationally find that appellant‘s actions were only reckless.            See id.

Accordingly, we hold that under the facts of this case, appellant was not entitled to an

instruction on manslaughter as a lesser-included offense of capital murder. Appellant‘s

second issue is overruled.




                                            24
                                     III. CONCLUSION

       The evidence in this case is legally sufficient to show appellant intended to cause

the death of Zamora‘s unborn child. The evidence also shows that under the facts of this

case, appellant was not entitled to a jury instruction on manslaughter as a lesser-included

offense of capital murder. Having overruled both of appellant‘s issues on appeal, we

affirm the trial court‘s judgment.



                                                   ______________________
                                                   Gregory T. Perkes
                                                   Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
7th day of April, 2011.




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