                        NUMBER 13-12-00783-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

CARLOS DELGADO REYES,                                                  Appellant,

                                         v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 206th District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Perkes and Longoria
              Memorandum Opinion by Justice Perkes
      Appellant Carlos Reyes appeals his conviction of murder, a first-degree felony.

See TEX. PEN. CODE ANN. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.). A jury

found appellant guilty and sentenced him to eighty years’ imprisonment in the Texas

Department of Criminal Justice, Institutional Division.   By three issues, which we
construe as two, appellant contends:        (1) the evidence was legally and factually

insufficient to prove appellant intentionally and knowingly killed Carolina Zamarripa with

a piece of glass; and (2) trial counsel was ineffective for failing to request a self-defense

instruction. We affirm.

                                   I.     BACKGROUND

       Firemen found Carolina Zamarripa’s body while responding to an activated smoke

alarm in her apartment. Zamarripa lay face down on a couch, covered in a blanket, with

cuts on her throat, neck, and hands. Called to investigate, police officers found a partially

broken alcoholic beverage bottle, blood, a broken kitchen knife, and blood stains on the

frame and inside threshold of the front door. There were bloody footprints and shards of

broken glass scattered across the apartment floor. In the alley behind her apartment

building, investigators found a bloody baseball cap and bloody white shirt.

       During a search of Zamarripa’s apartment, investigator Hector Rafael De Jesus

found appellant's Texas identification card in a wallet underneath the victim's bed.

Investigator De Jesus then spoke with appellant’s common law wife and showed her

pictures of the bloody white shirt and cap. She confirmed that the shirt and cap belonged

to appellant and told investigator De Jesus that appellant had returned to their apartment

after 10:30 pm on the night of Zamarripa’s murder. Appellant appeared to be rushed,

and was “screaming and running around.”

       Shortly after police arrived at Zamarripa’s apartment on the night of the murder,

appellant used Zamarripa’s cell phone to make several phone calls to his aunt and

cousins. Appellant told his cousins that he was walking along Expressway 83 in Pharr,


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and asked for a ride, sounding frantic and desperate. Appellant crossed into Mexico on

the night of the murder and was apprehended at the Hidalgo port of entry two days later.1

        Shortly after his arrest, investigator De Jesus interviewed appellant.                      He

confessed to the murder. In his confession, appellant admitted to smoking crack all day

and night with Zamarripa. Appellant stated that Zamarripa "started hitting me and kinda

going crazy,” and that she cut him in the arm with a knife. Appellant then told investigator

De Jesus that he “punched” Zamarripa in the neck with the knife and “slit her throat or

something like that.” Appellant stated that when he arrived home, he told his girlfriend

he “did something real bad,” and that he had “killed someone.”

        Forensic pathologist Dr. Norma Jean Farley performed Zamarripa’s autopsy. She

stated that Zamarripa had fourteen stab wounds on her head, body, hands, and neck,

and that the cuts/abrasions on Zamarripa’s hands were indicative of defensive wounds.

Dr. Farley stated that the fatal neck wound was most likely created with a glass shard

since glass fragments were found on the body and because of the jagged-like appearance

of the stab wound. Dr. Farley clarified that although a knife could cause the same type

of wound, it would not leave the irregular and jagged wound found on Zamarripa’s throat.

        After the conclusion of the evidence, appellant’s trial counsel requested jury

instructions on the lesser-included offenses of manslaughter and aggravated assault with

a deadly weapon. The trial court included both instructions in the court’s charge.




        1 A warrant was issued for appellant’s arrest in connection with Zamarripa’s murder prior to

appellant returning from Mexico. Appellant was attempting to re-enter the United States from Mexico when
he was arrested.
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                                 II.      SUFFICIENCY OF THE EVIDENCE

        By his first two issues, appellant argues that the evidence presented at trial is

legally and factually insufficient to show beyond a reasonable doubt that appellant

committed the crime of murder and the evidence is legally and factually insufficient to

show beyond a reasonable doubt that appellant caused the death of Zamarripa by cutting

her with a piece of glass.2

A.      Standard of Review

          The standard for determining whether the evidence is legally sufficient to support

a conviction is “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.” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

jury is the exclusive judge of the credibility of the witnesses and of the weight to be given

testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (citing Jones

v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). Juries are permitted to make

reasonable inferences from the evidence presented at trial, and circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor. Hooper v. State,




         2 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. See Brooks v. State, 323 S.W.3d 893, 898–
99 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will not address appellant’s factual sufficiency
argument. See id.
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214 S.W.3d 9, 14 (Tex. Crim. App. 2007).

       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.

B.     Applicable Law

       For a defendant to be convicted of murder, a jury must find that he intentionally or

knowingly caused the death of an individual. See TEX. PEN. CODE ANN. § 19.02 (West,

Westlaw through 2013 3d C.S.). A person acts intentionally, or with intent, with respect

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

Id. § 6.03(a). A person acts knowingly, or with knowledge, with respect to the nature of

his conduct or to circumstances surrounding his conduct when he is aware of the nature

of his conduct or that the circumstances exist. Id. § 6.03(b). A person acts knowingly,

or with knowledge, with respect to a result of his conduct when he is aware that his

conduct is reasonably certain to cause the result. Direct evidence of intent or knowledge

is not necessary. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (en banc).          A

jury may infer intent or knowledge from a defendant’s acts, words, conduct, and the

method of committing the crime and the nature of the wounds inflicted on the victim.

Cordova v. State, 698 S.W.2d 107, 112 (Tex. Crim. App. 1985) (en banc). In a murder


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case, evidence of a particularly brutal or ferocious mechanism of death, inflicted upon a

helpless victim, can be controlling upon the issue of intent. See Louis v. State, 329

S.W.3d 260, 268–69 (Tex. App.—Texarkana 2010), aff’d, 393 S.W.3d 246 (Tex. Crim.

App. 2012).

C.     Analysis

       Appellant, in his brief, concedes that he played a role in the death of Zamarripa,

but he argues that there was no evidence that he intentionally caused her death. Rather,

appellant contends that his statement tends to show that he acted in self-defense and

that a knife was the focus of the struggle. Appellant’s argument presumes his version of

the events is correct and disregards much of the testimony presented by the State. In

particular, the State presented evidence showing that there were fourteen wounds on

Zamarripa’s body, that there were defensive wounds on Zamarripa’s hands, and that a

glass object caused the lethal injury.

       Reconciliation of conflicts in the evidence is within the fact-finder’s exclusive

province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). The jury may

choose to believe some testimony and disbelieve other testimony. Losada v. State, 721

S.W.2d 305, 309 (Tex. Crim. App. 1986). If there is enough credible testimony to support

appellant's conviction, the conviction will stand. See id.

       The jury was free to believe the State’s expert witness’s testimony regarding the

use of a glass object to perpetrate the fatal blow and to disregard the appellant’s

statement that a knife was used to perform the fatal blow. The jury was also permitted

to disbelieve appellant’s claim that the deceased started the altercation and that he only


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acted in self-defense when he struck her. In sum, the jury could have inferred from the

number and type of wounds that appellant acted with the requisite intent or knowledge to

commit murder. See Louis, 329 S.W.3d at 268–69.

       Viewed in the light most favorable to the verdict, we conclude that a rational jury

could have found the essential elements of murder beyond a reasonable doubt. See

Johnson, 364 S.W.3d at 293–94. We overrule appellant’s legal sufficiency issue.

                        III.   INEFFECTIVE ASSISTANCE OF COUNSEL

       By his second issue, appellant contends that his trial counsel was ineffective for

not requesting a self-defense instruction in the jury charge. We disagree.

A.     Standard of Review

       To prevail on his ineffective assistance claim, appellant must show: (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) the deficient

performance prejudiced the defense.        Strickland v. Washington, 466 U.S. 668, 689

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Jaynes v. State,

216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our review of counsel’s

representation is highly deferential, and we will find ineffective assistance only if appellant

rebuts the strong presumption that his counsel’s conduct fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at

142; Jaynes, 216 S.W.3d at 851.




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B.     Analysis

       Assertions of ineffective assistance must be firmly founded in the record. Bone v.

State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). As the Texas Court of Criminal

Appeals has stated:

               Under most circumstances, the record on direct appeal will not be
       sufficient to show that counsel's representation was so deficient and so
       lacking in tactical or strategic decision-making as to overcome the strong
       presumption that counsel's conduct was reasonable and professional. As
       this Court recently explained, rarely will the trial record contain sufficient
       information to permit a reviewing court to fairly evaluate the merits of such
       a serious allegation: “[i]n the majority of cases, the record on direct appeal
       is simply undeveloped and cannot adequately reflect the failings of trial
       counsel.” A reviewing court can frequently speculate on both sides of an
       issue, but ineffective assistance claims are not built on retrospective
       speculation; rather, they must “be firmly founded in the record.”

Sheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (citations omitted).

       Here, the record does not unambiguously show the reasons for defense counsel's

approach. Appellant did not file a motion for new trial in which counsel's strategy or lack

thereof could have been developed on the record. When the record is silent, we must

presume counsel had a sound trial strategy behind his actions. Busby v. State, 990

S.W.2d 263, 268–69 (Tex. Crim. App. 1999); Safari v. State, 961 S.W.2d 437, 445 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref'd).

       In this case, we can only speculate why counsel did not request a self-defense

instruction; thus, we presume that counsel's actions were within the wide range of

reasonable and professional assistance.       See id.   Appellant has not overcome the

strong presumption that his trial counsel’s conduct fell within the wide range of reasonable




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professional assistance. See Strickland, 466 U.S. at 689; Sheanette, 144 S.W.3d at 510.

We overrule appellant’s third issue.

                                   IV.    CONCLUSION

       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
18th day of December, 2014.




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