                               NUMBER 13-07-101-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ERASMO FRAIRE SALAZAR,                                                         Appellant,

                                             v.

THE STATE OF TEXAS,                                                            Appellee.


    On appeal from the 338th District Court of Harris County, Texas.


                          MEMORANDUM OPINION

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

       After a jury trial, appellant, Erasmo Fraire Salazar, was convicted of the offense of

murder, and his punishment was assessed by the jury at thirty years’ imprisonment. On

appeal, Salazar’s counsel filed a brief arguing that the evidence is factually insufficient to

support appellant’s conviction, while Salazar filed a pro se brief arguing that he was denied

the effective assistance of counsel at trial. We affirm.
                                             I. FACTUAL SUFFICIENCY

                                                A. Applicable Law

        When reviewing the factual sufficiency of the evidence, we begin with the

presumption that the evidence supporting the verdict is legally sufficient.1 We view all of

the evidence in a neutral light.2 We may set the verdict aside if (1) the evidence is so weak

that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great

weight and preponderance of the evidence.3 While we may disagree with the jury's

conclusions, we must exercise appropriate deference to avoid substituting our judgment

for that of the jury, particularly in matters of credibility.4 Thus, while we are permitted to

substitute our judgment for that of the jury when considering credibility and weight

determinations, we may do so only to a very limited degree.5

        A person commits the offense of murder if he (1) intentionally or knowingly causes

the death of an individual or (2) intends to cause serious bodily injury and commits an act

clearly dangerous to human life that causes the death of an individual.6 Intent can be

inferred from the acts, words, and conduct of the defendant.7


        1
            See Clewis v. State, 922 S.W .2d 126, 134 (Tex. Crim . App. 2006).

        2
            See id.; Cain v. State, 958 S.W .2d 404, 408 (Tex. Crim . App. 1997).

        3
          W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006) (citing Johnson v. State, 23
S.W .3d 1, 11 (Tex. Crim . App. 2000)).

        4
           Drichas v. State, 175 S.W .3d 795, 799 (Tex. Crim . App. 2005); see also W atson, 204 S.W .3d at 414
(stating that an appellate court should not reverse a verdict it disagrees with unless it represents a m anifest
injustice, though supported by legally sufficient evidence).

        5
            Marshall v. State, 210 S.W .3d 618, 625 (Tex. Crim . App. 2006).

        6
            T EX . P EN AL C OD E A N N . § 19.02(b)(1), (2) (Vernon 2003).

        7
            Patrick v. State, 906 S.W .2d 481, 487 (Tex. Crim . App. 1995).

                                                            2
                                    B. Trial Testimony

       On appeal, Salazar argues that there is factually insufficient evidence that he

intentionally or knowingly caused the death or serious bodily injury of the victim, Roberto

Mosqueda (“Roberto”). Accordingly, we shall only discuss the trial evidence that is relevant

to the issue of intent.

1. Magdalena Garcia Martinez’s Testimony

       Magdalena Garcia Martinez (“Magdalena”) was married to Roberto when he died

on May 7, 1984. When Magdalena first testified on December 5, 2006—more than twenty-

two years after Roberto’s death—her memory of what happened the night Roberto was

killed was not entirely clear. Prior to testifying, Magdalena reviewed a statement she had

given police shortly after Roberto was killed. Though Magdalena could recall talking with

police after Roberto’s death, she could not recall giving them a statement.

       According to Magdalena, she and Roberto were in their apartment at 2:30 in the

morning on May 7, 1984. Around that time, she heard a persistent, loud knocking on her

door. She opened the door and saw Salazar and his girlfriend, Rosie. Magdalena and

Roberto were friends with Salazar and Rosie; they had known each other for approximately

fifteen months. Salazar entered the apartment and began yelling at Roberto. Salazar was

upset and his yelling related to the subject of Rosie’s alleged infidelity. Magdalena testified

that Roberto had previously told Salazar that Rosie was cheating on him. Magdalena

remembered Roberto being asleep prior to Salazar’s knocking, but she could not recall

whether Roberto awoke to Salazar’s presence or whether Salazar attempted to awake

Roberto. She did recall Salazar shooting Roberto once with a gun, and Roberto falling to



                                              3
the floor after being shot. Magdalena could not recall trying to get between Salazar and

Roberto before the shot was fired, but she did recall suffering gun powder burns on her

arm. Under questioning, Magdalena stated that she could not recall whether Salazar was

trying to shoot Roberto. She did testify, however, that (1) Salazar pointed the gun at

Roberto, (2) Roberto did not have a weapon and did not attempt to grab the gun from

Salazar, (3) Salazar shot Roberto, and (4) Salazar and Rosie then left the apartment.

       On the second day of Salazar’s trial, Magdalena again testified. Under direct-

examination by Salazar’s counsel, Magdalena testified that Roberto sometimes carried a

pocketknife. She also testified about what transpired shortly before Roberto’s death.

According to Magdalena, Roberto went to a club with Salazar the evening before he was

killed. Roberto became intoxicated, and eventually returned to the apartment at 1:00 in the

morning, at which point he went to sleep. When Salazar knocked on the apartment door

later that night, Magdalena opened the door for him and turned on the lights inside the

apartment.8 Salazar began asking Roberto if Rosie was going out with another man.

Magdalena testified that Roberto responded to Salazar’s questions, answering that he had

seen her with another man. Magdalena further stated that Roberto never attacked Salazar

or Rosie, and never attempted to grab the gun from Salazar.

       Under cross-examination by the State, Magdalena stated that she had not had an

opportunity to read a Spanish translation of her statement to police prior to her first day of

testimony, which had since been provided to her. Magdalena testified that (1) Roberto was



       8
         Magdalena stated that she could not rem em ber whether she had previously told anyone that
som eone else had opened the door for Salazar. Magdalena later stated, however, that she had never told
anyone that Roberto opened the door for Salazar.

                                                  4
asleep when Salazar entered the apartment; (2) Salazar had been drinking and was upset

that night; (3) Salazar asked Roberto questions about Rosie; (4) Salazar kicked Roberto

in an attempt to awake him; (5) when Salazar aimed the gun at Roberto, Magdalena

jumped between them and asked Salazar to return the next day when he was calm; (6)

Salazar kicked Magdalena in the stomach to get her out of the way; and (7) Salazar then

shot Roberto in the stomach and left the apartment with Rosie.

2. Roger Milton’s Testimony

       Roger Milton, an assistant medical examiner at the Harris County Medical

Examiner’s Office, discussed Roberto’s autopsy report. Milton stated that Roberto was one

to three feet from the gun when he was shot. He testified that Roberto’s wound was not

a defensive wound (i.e., the type of wound someone receives when taking a defensive

posture). The autopsy report did not state that Roberto had any contusions, lacerations,

or injuries of any kind to his knuckles or hands. The report did reveal that Roberto’s blood

alcohol level was .278. According to Milton, after reviewing pictures of Magdalena’s arms,

which were taken shortly after Roberto’s death, he was of the opinion that she was closer

to the gun than Roberto was at the time it was fired.

3. Salazar’s Testimony

       Salazar testified that he went to a few bars with Roberto the evening before his

death. Salazar stated that he drove Roberto to a bar called the Rio Bravo. After

consuming alcohol together at the Rio Bravo, Roberto left the bar in Salazar’s truck

because he needed to move items for his apartment. Salazar remained at the Rio Bravo,

waiting for Roberto to return. When Roberto returned to the bar two hours later, the men

remained drinking at the bar. When Roberto returned to the Rio Bravo, he showed Salazar

                                             5
a pistol. According to Salazar, he and the bartender instructed Roberto to take the pistol

out of the bar, and Salazar told him to leave it in the truck. Roberto complied. While at the

Rio Bravo, Roberto repeatedly told Salazar that Rosie was cheating on him. According to

Salazar, he told Roberto that he wanted him to repeat his accusations in front of Rosie.

       The two eventually drove to another bar called El Columpio, where they continued

to drink alcohol.   Salazar later dropped Roberto off at his apartment, and Salazar

proceeded to meet Rosie at a bar. After leaving the bar together, Salazar told Rosie that

he was going to Roberto’s apartment so Roberto could repeat his accusations of infidelity

against Rosie in front of her. On their way to the apartment, Rosie discovered Roberto’s

pistol. When they reached the apartment, Salazar took the pistol and placed it inside his

pant waistline with the intent of giving it back to Roberto.

       Salazar testified that he knocked on Roberto’s door twice with normal force.

Magdalena opened the door and invited him and Rosie inside. Salazar told Magdalena

that he wanted to speak with Roberto, but she told him that he was sleeping. According

to Salazar, it was dark in the apartment, preventing him from even seeing where Roberto

was sleeping. Magdalena walked toward where Roberto was sleeping but could not

awaken him. Salazar then walked toward Roberto and attempted to awake him, but he too

was unsuccessful. Salazar testified that after tying to awake Roberto, who was sleeping

in a very dark area of the apartment, Salazar returned to the entrance of the apartment.

At that point, Rosie began telling Salazar that Roberto was a bad friend to him because he

had been trying to have an affair with her. When she said this, Roberto began yelling at

Rosie and threatening her. Salazar testified that though he could not see Roberto, he “felt

that [Roberto] got up and he hit Rosie.” He also testified that he heard something that

                                              6
sounded like a “blade,” causing him to worry that Roberto had a pocketknife. Salazar

testified that after Roberto hit Rosie, Roberto then lunged at him. Salazar believed that

Roberto was attempting to remove the pistol from his waistband. Salazar testifed that

during his struggle with Roberto, the pistol accidentally fired, hitting Roberto. Salazar

checked Roberto’s condition, but he was non-responsive. He told Magdalena to call an

ambulance, but no phone was available in the apartment. Salazar then fled the apartment

with Rosie because he became scared.9

4. Additional Witness Testimony

        Laura Romero testified that approximately three months prior to trial, she spoke with

Magdalena about Roberto’s death. According to Romero, Magdalena told her that Roberto

had opened the door for Salazar on the night in question. Another witness, Armando A.

Arredondo, testified that shortly after Roberto’s death, he overheard his wife have a

conversation with a woman named Nina. During this conversation, Nina told his wife that

Roberto had died while struggling for control of a gun.

                                              C. Discussion

        In light of Magdalena’s testimony, we find the evidence establishing that Salazar

intentionally or knowingly caused death or serious bodily injury to Roberto is not so weak

that the verdict is clearly wrong and manifestly unjust.10 Though Magdalena’s testimony

was sometimes contradictory, she steadfastly denied that Salazar had struggled with



        9
           W e note that Salazar was arrested shortly after Roberto was killed. Salazar was out on bond when
he failed to appear at his first scheduled trial. Salazar fled to W isconsin, where he eluded authorities for two
decades. Salazar testified that he fled because he was afraid of the possibility of being found guilty and
receiving a lengthy sentence.

        10
             See W atson, 204 S.W .3d at 414-15.

                                                       7
Roberto for control of the gun, and asserted that Salazar pointed the gun at Roberto and

shot him. The jury was free to believe Magdalena’s testimony over Salazar’s.11 In addition

to concluding that Magdalena was more credible than Salazar, the jury may have also

concluded that Magdalena’s version of how the shooting took place was better supported

by the evidence (i.e., the testimony of the medical examiner, Robert Milton). Magdalena’s

contention that she positioned herself between Salazar and Roberto, and that Salazar then

kicked her off to the side immediately prior to shooting Roberto, complements Milton’s

opinion that Magdalena was closer to the gun than Roberto was when it fired.

        We further find that the evidence establishing that Salazar intentionally or knowingly

caused death or serious bodily injury to Roberto is not against the great weight and

preponderance of the evidence.12 The jury was free to disbelieve the testimony of Salazar

and other defense witnesses—witnesses that were not present when Roberto was killed.13

We do not believe the jury’s verdict represents a manifest injustice.14 Accordingly, we find

that the evidence is factually sufficient to support Salazar’s murder conviction. Salazar’s

sufficiency challenge is overruled.

                               III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Although Salazar is not entitled to hybrid representation,15 we will address the


        11
           See Lancon v. State, 253 S.W .3d 699, 707 (Tex. Crim . App. 2008) (“Because the jury is the sole
judge of a witness's credibility, and the weight to be given the testim ony, it m ay choose to believe som e
testim ony and disbelieve other testim ony.”).

        12
             See W atson, 204 S.W .3d at 414-15.

        13
             See Lancon, 253 S.W .3d at 707.

        14
             See Drichas, 175 S.W .3d at 799.

        15
             See Patrick, 906 S.W .2d at 498.

                                                     8
argument raised in his pro se brief in the interest of justice. The sole issue raised in

Salazar’s pro se brief is an ineffective assistance of counsel claim. The court of criminal

appeals recently discussed the standard for reviewing this type of claim in State v. Morales,

stating:

               A claim of ineffective assistance of counsel entails two components.
       The appellant must establish both that his trial counsel performed deficiently
       and that the deficiency operated to prejudice him. In evaluating the first
       component, reviewing courts must not second-guess legitimate strategic or
       tactical decisions made by trial counsel in the midst of trial, but instead “must
       indulge a strong presumption that counsel’s conduct falls within the wide
       range of reasonable professional assistance[.]” This means that unless
       there is a record sufficient to demonstrate that counsel’s conduct was not the
       product of a strategic or tactical decision, a reviewing court should presume
       that trial counsel’s performance was constitutionally adequate unless the
       challenged conduct was so outrageous that no competent attorney would
       have engaged in it.16

In his pro se brief, Salazar asserts that his trial counsel, Carlos Correa, “presented a ‘false

witness’ and manufactured evidence by procuring the services of Laura Romero to present

perjured testimony without [Salazar’s] knowledge at the time of trial.”

                                A. Laura Romero’s Testimony

       Laura Romero’s testimony at Salazar’s trial was, to the say the least, bewildering.

While under direct examination by Correa, Romero testified that she lived in Cleveland,

Texas, and was employed by a company as a marketing sales director, which required her

to visit different places to promote various companies interested in opening businesses in

predominantly Hispanic-populated areas. She stated that in September of 2006, she was

on a job assignment in Nebraska, where she was in a neighborhood surveying people



         16
            State v. Morales, 253 S.W .3d 686, 696-97 (Tex. Crim . App. 2008) (footnotes and quotations
om itted) (quoting Strickland v. W ashington, 466 U.S. 668, 687 (1984)).

                                                  9
about their interest in Mary Kay Cosmetics. While in this neighborhood, Romero randomly

came upon Magdalena’s home. Romero asserts that she did not know anything about

Magdalena at this time. Romero testified that she entered Magdalena’s home to discuss

Mary Kay Cosmetics, and that she remained in the home for awhile because there was a

tornado in the area, and she wanted to remain in the home until the tornado passed. While

in the home, Magdalena began discussing the death of her late husband, Roberto.

According to Romero, Magdalena told her that Roberto was shot by a friend after he

opened his apartment door for the friend. Romero testified that at some later date, a

detective from Dallas, who she could not name, called her. The detective told her that she

needed to appear as a witness at Salazar’s trial in Houston. Romero testified that she

arrived at Magdalena’s home by chance, and that she did not know Salazar or his trial

counsel at the time this occurred.

      After her direct examination, the State cross-examined Romero, resulting in the

following exchange:

      Q:     You got a phone call out of the blue from a detective?

      A:     Not, not at that moment. I received it after we were in that place.

      Q:     How would somebody know that you had been to Magdalena Garcia
             Martinez’s home?

      A:     No idea, ma’am.

      Q:     Did somebody ask you to go to that home?

      A:     No, ma’am.

      Q:     Ask you to go to that home and talk to the victim?

      A:     No, ma’am.


                                           10
      Q:     So, you are saying it was just out of the blue you happened by this
             woman’s home?

      A:     Yes, ma’am. Me and my partner, yes.

      Q:     And there just happened to be a storm that day?

      A:     Yes.

      Q:     And you just happened to open up with her?

      A:     Well, I received a phone call from Dallas that I have to be in court for
             some witness—that I have to be a witness. And then that’s why she
             say: Oh, I have to go to Houston, too. That’s why we start talking
             about that.

      Q:     What I don’t understand, though, is how it is possible that a door-to-
             door marketer would engage in a conversation like this with someone
             and then you would be contacted by a detective at a later date?

             ....

      Q:     Does that make any sense to you?

      A:     No. I was even surprised, but what can I do?

      On the next day of Salazar’s trial, the State conducted a direct examination of

Romero. The State’s questioning challenged whether Romero was employed by Mary Kay

Cosmetics. Romero stated that she did not work for the company, but asserted that she

worked in correlation with the company. Romero testified that she did telemarketing for

different companies. When pressed by the State to name the employer that sent her to

Nebraska, Romero stated that her employer’s name was “Telemarketing Company,”

located in Dallas, Texas. Romero could not provide an address for her employer. When

asked how one would contact her employer, Romero asserted that employees cannot

contact the company; rather, only the company can contact its employees.

                                     B. Discussion

                                           11
        If Salazar’s counsel did in fact instruct Romero to commit perjury, then Salazar has

raised an ineffective assistance of counsel claim that warrants great consideration. An

attorney undoubtedly performs deficiently by knowingly presenting perjured testimony—for

permitting perjured testimony can never be a legitimate strategic or tactical decision.

Whether or not an attorney’s act of perjury is prejudicial, however, is a matter that must be

assessed on a case-by-case basis. In the instant case, Salazar needed the jury to find him

credible; it was his word against Magdalena’s with regard to the manner in which Roberto

died. Accordingly, the concern for Salazar is whether his credibility with the jury suffered

as a result of Romero’s testimony.17

        We are precluded from entertaining this concern because Salazar has not

presented this Court with any evidence to support the assertion that his trial counsel,

Carlos Correa, committed perjury at trial. Even if this Court were to sua sponte take

judicial notice of the fact that the Harris County District Attorney’s Office charged Correa

with aggravated perjury,18 stemming from Romero’s testimony at Salazar’s trial,19 Salazar

would still be lacking the necessary evidence for his ineffective assistance of counsel

claim. Salazar’s counsel must be presumed innocent, until proven guilty. Accordingly, it

would be imprudent to address Salazar’s ineffective assistance claim when Salazar’s


        17
            W e observe that a jury would likely judge a defendant’s credibility not only through his own
testim ony, but also through the testim ony he is perceived as proffering through witnesses speaking in his
defense.

        18
             See T EX . R. E VID . 201(b) (“A judicially noticed fact m ust be one not subject to reasonable dispute
in that it is . . . capable of accurate and ready determ ination by resort to sources whose accuracy cannot
reasonably be questioned.”); Granados v. State, 843 S.W .2d 736, 738 (Tex. App.–Corpus Christi 1992, no
pet.) (“An appellate court m ay take judicial notice for the first tim e on appeal.”).

        19
             See generally Brian Rogers, Attorney Arrested on Charges of Perjury, T HE H O USTO N C H R O N IC LE ,
Dec. 11, 2007, at B3 (discussing Correa’s arrest after being charged with aggravated perjury for directing a
fam ily friend, Laura Rom ero, to testify falsely in a m urder trial).

                                                        12
counsel has only been charged with perjury, rather than convicted of perjury. Because

Salazar has not presented this Court with a record solidly evidencing the basis for his

ineffective assistance claim, we overrule his issue on appeal.20

                                              IV. CONCLUSION

        We affirm the trial court’s judgment.




                                                             LINDA REYNA YAÑEZ,
                                                             Justice




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

Memorandum Opinion delivered and filed
this the 20th day of November, 2008.




        20
           W e note that we have not decided whether Salazar did or did not receive ineffective assistance of
counsel as a result of the alleged perjury. Our decision to overrule Salazar’s claim is based on the lim ited
record before us. Salazar m ay still subm it his ineffective assistance of counsel claim for review on the m erits
in an application for writ of habeas corpus. See Rylander v. State, 101 S.W .3d 107, 111 n.1 (Tex. Crim . App.
2003).

                                                       13
