                            NUMBER 13-12-00230-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

CORINA LAM LOPEZ,                                                         Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides
      Appellant, Corina Lam Lopez, appeals her conviction for capital murder.      See

TEX. PENAL CODE ANN. § 19.03 (West 2011). By five issues, which we re-number as

four, Lopez asserts that:   (1) the trial court erred in permitting the state to call

co-defendant George Garza as a witness knowing that Garza would invoke his Fifth

Amendment privilege against self-incrimination; (2) the trial court erred in omitting a
lesser-included offense instruction for felony murder in its charge; (3) the evidence is

insufficient to find Lopez guilty as a party; and (4) trial counsel rendered ineffective

assistance of counsel. We affirm.

                                   I.     BACKGROUND

       In February 2011, a Kleberg County grand jury indicted Lopez for the capital

murder of Susan Rousseau.       Rousseau’s murder took place more than five years prior,

after Rousseau’s boyfriend, Oscar Peña, found her body lying lifeless in a pool of blood

on the floor of her Kingsville, Texas trailer home.

       The evidence at trial showed that Lopez and Peña were one-time boyfriend and

girlfriend. Sometime in September 2005, however, Peña and Lopez ended their nearly

decade-long relationship.     After the breakup, Peña began dating Rousseau, who

worked with him at the Naval Air Station in Kingsville.

       The State presented evidence that Lopez did not take Peña’s break-up well.

According to Peña, on November 8, 2005, he and Rousseau were at Rousseau’s trailer

home one night, when they walked outside to discover Lopez’s Jeep Cherokee drive by

Rousseau’s home.      Peña testified that Rousseau told him that it was not the first time

that the Jeep had passed by her place.     Peña recalled another incident at a gas station,

in which Lopez showed up and asked Peña why he hated her.

       Lopez’s friend, Samantha Truesdale, also testified. Truesdale recalled that on

November 4, 2005, Lopez gave her a typed letter to place at Rousseau’s door. The

letter was admitted into evidence as State’s Exhibit 10. The letter makes references to

Peña and Rousseau’s relationship and is peppered with vulgarities.              The letter




                                             2
concludes by instructing Rousseau not to “call [Peña],” “hang out with him,” and if she

complied, she would be “left alone.” The typed letter is signed by: “ME.”

          Armando Garcia also testified. Garcia did not know Lopez or Rousseau prior to

this case, but testified that on November 16, 2005, he was looking for work in Kingsville

and was approached by a woman, later identified as Lopez, in a brown truck.

According to Garcia, the female driver offered to give him a ride to his destination in

exchange for delivering an envelope to a woman, later identified by Garcia as Rousseau,

at the Oasis Trailer Park in Kingsville.   Garcia agreed to the deal and delivered the letter

to Rousseau personally.      Garcia testified that once Rousseau received the letter, she

asked him who instructed him to give him the letter. Garcia told him it was Lopez.

Lopez, who was waiting nearby in her truck, then sped off.        Rousseau then called the

police.    Police arrived, questioned Garcia, and issued him a criminal trespass citation.

A month later, police again interviewed Garcia, who identified Lopez in a photo lineup as

the woman who instructed him to deliver the letter. The trial court admitted this letter as

State’s Exhibit 11.     The letter again references Peña as well as the writer’s and

Rousseau’s relationship with him.

          The State also elicited testimony from Oasis Trailer Park’s former property

manager, Heather Marshall.       Marshall testified that Rousseau had asked her to “keep

an eye on her RV.”        Marshall recalled that on November 16, 2005 she noticed a

champagne-colored truck drive up to Rousseau’s trailer, pull out, and then leave the

park. Marshall identified Lopez as the driver of the truck.       Marshall testified that the

truck returned later that day to the park along with a male passenger, later identified as

Garcia.     Marshall stated that Susan asked Marshall later to tell her what she saw.


                                               3
Marshall spoke to the police about the incident.        Marshall recalled seeing Lopez drive

through the Oasis Trailer Park for a third time in a green Jeep along with a little boy.

Marshall testified that the Jeep had all of the lettering and decals removed from vehicle’s

body.        At this point, Rousseau asked Marshall to move her trailer to a new lot, which

she did.

         Peña testified that he worked the late shift (3:30 p.m. to 1:00 a.m.) on the night of

December 6, 2005. Peña remembered that Lopez called him that night to find out when

he would get off of work and asked Peña to visit her that night.       Peña declined the offer.

According to Peña, Rousseau also worked that night at the Naval Air Station, but left

work earlier. Peña testified that he attempted to call Rousseau after work around 1:00

a.m. on December 7, 2005, but she did not answer his call.          As a result, Peña left work

and went home. The next morning, he visited Rousseau at her trailer home to discover

her cold, lifeless body lying in a pool of blood on the floor of her trailer home.          Peña

witnessed a small wooden baseball bat lying next to Rousseau’s head.                Peña called

9-1-1.

         Police arrived, secured the crime scene, and collected evidence.              Kingsville

Police Officer Michael Tamez was one of the first officers to respond. Officer Tamez

described the scene as “gruesome,” and noted that a bat1 was found next to Rousseau’s

head and that the telephone cable running into Rousseau’s trailer was severed. Police

discovered a book that was face-down in Rousseau’s bed, a shotgun located near

Rousseau’s bed, and a running Crock Pot that was cooking meat and vegetables in the


         1
          Police later interviewed Mike Keiper, who had an undefined relationship with Rousseau.
According to Detective Salinas, Keiper confirmed that he had loaned Rousseau the bat and a shotgun
previously as tools for self-defense.

                                                4
kitchen. The door to Rousseau’s trailer appeared to be forced open. According to

Kingsville Police Sergeant Tamara Myers, a piece of foam insulation surrounding the

trailer’s front door was ripped out and found on the steps leading up to the front door.

Sergeant Myers testified that investigators were able to open Rousseau’s door without

having to turn the knob.      Police also discovered that Rousseau had a surveillance

camera set up in her trailer, but the video retrieved did not assist police due to its poor

quality.

        Photos of the crime scene depict significant amounts of blood splatter throughout

the walls near the location of Rousseau’s body.         Lisa Harmon Baylor, a forensic

scientist with the Texas Department of Public Safety, testified that she tested all of the

DNA samples submitted related to this case, including a DNA sample from Lopez.

According to Baylor, Lopez’s DNA was not linked to the Rousseau crime scene.

        Nueces County medical examiner, Ray Fernandez, M.D., later performed an

autopsy on Rousseau’s body.         According to Dr. Fernandez, Rousseau’s body had

multiple contusions and abrasions throughout the body, including her face, multiple skull

fractures, and contusions to the left side of her brain.     Dr. Fernandez testified that

Rousseau’s injuries were consistent with blunt trauma caused by a blunt object such as

the wooden bat found at the scene.     Dr. Fernandez listed Rousseau’s cause of death as

blunt head trauma caused by homicide.

        Police initiated contact with Lopez the day following the discovery of Rousseau’s

body.      Kingsville Police Corporal Mark Frost also interviewed Lopez that day.   During

the interview, Lopez denied being in the area of the trailer park the night before

Rousseau’s murder and also denied knowing who killed Rousseau.               With Lopez’s


                                             5
consent, police searched her apartment, Jeep, and cell phone. According to Corporal

Frost, two phone numbers were listed in her cell phone that night:     one belonging to

Peña, and another to a caller listed as “George.”      Lopez told Corporal Frost that

“George” was a guy who was interested in buying Peña’s Chevrolet Camaro and had left

town the previous Sunday with her daughter. During the course of searching Lopez’s

apartment, police found a Wal-Mart receipt with a time-stamp of 11:59 p.m. on

December 6, 2005.

      Sergeant Myers and Kingsville Police Department Detective Vilma Salinas

reviewed surveillance video from Wal-Mart from December 6, 2005.       The investigators

were able to spot Lopez in the surveillance video walking alongside an unknown male.

According to Detective Salinas, Lopez had previously told investigators that she had

gone to Wal-Mart alone that night.

      During the police’s investigation, several calls were made to the Kingsville Police

Crimestoppers tip line. Virginia Rowley was in charge of answering phone calls made

to that line from anonymous tipsters.    Rowley testified that she received a call on

December 8, 2005 from an unknown caller who said that “Ricky Segura” beat Rousseau

with a baseball bat, and then, the caller hung up.   Rowley testified that a second call

came in thirty minutes later wherein the caller, who sounded like the previous caller,

gave the same name of “Ricky Segura” to her, but said that Segura had been at a party

the night before talking about the murder. According to Rowley, the caller described

Segura as a gang member who had been staying at a local motel in Kingsville.

      On December 12, 2005, another call was made to the tip line, wherein the caller

stated that Ricky Segura found out that her brother had called the Crimestoppers line


                                           6
previously and beat him up.      Rowley stated that the caller sounded like a woman. A

fourth call was made to the tip line on January 4, 2006.    Rowley recognized the voice as

that of the previous caller, and compared the voice with that of Lopez’s, whose voice was

recorded by Corporal Frost during his interview.    Rowley testified that the voices were

similar. A fifth call came in on January 10, 2006. Again, Rowley testified that the voice

sounded the same, and that the caller indicated that Segura was seen at a store in Alice

or San Diego, Texas. A sixth call came in on February 15, 2006 in which the caller told

police that Segura was hiding at Loyola Beach and dropped a necklace with the name

“Ricky” on it at the crime scene.

       When the sixth call came in to the Crimestoppers line, Rowley notified Detective

Salinas about the phone call.    Detective Salinas acted on a hunch and traveled around

town looking for pay phones to see if she could identify the caller.        Rowley kept the

caller on the line while Detective Salinas and Sergeant Myers traveled around Kingsville.

The call abruptly came to end, when Detective Salinas grabbed the phone from the caller

and asked Rowley to confirm that it was her.       Once Rowley confirmed her identity to

Detective Salinas, the call ended.   Detective Salinas and Sergeant Myers subsequently

placed Lopez under arrest.      Police were unable to locate a “Ricky Segura” in the area

who would match the description given to them by Lopez.

       Detective Salinas eventually retrieved Lopez’s cell phone records during the

dates surrounding Rousseau’s death. One phone number of interest on Lopez’s phone

records turned out to be registered to George Garza.       Detective Salinas was able to find

a photo of George Garza and compared it to the male subject present with Lopez in the

Wal-Mart surveillance footage.         According to Detective Salinas, similarities in


                                             7
apperance existed between the two subjects.       The trial court admitted State’s Exhibit

80, Lopez’s cell phone records.   According to the records, the following calls were made

between Lopez and Garza on the dates surrounding Rousseau’s murder:

              December 6, 2005 at 11:35 p.m. lasting 44 seconds in duration;

              December 7, 2005 at 12:40 a.m. lasting 29 seconds in duration;

              December 7, 2005 at 12:43 a.m. lasting 13 seconds in duration;

              December 7, 2005 at 1:42 a.m. lasting 0 seconds in duration; and

              December 7, 2005 at 1:45 a.m. lasting 34 seconds in duration.

       The State also played State’s Exhibit 74—a videotaped interview conducted in

August 2010 between Texas Ranger Keith Pauska and Lopez.           At the time, Lopez was

incarcerated in Travis County, where she lived at the time, on the pending capital murder

charges.   During the interview, Lopez told Ranger Pauska that she “loved” Peña, but

admitted that he treated her badly toward the end of their relationship.   Lopez admitted

that Garza, who was her daughter’s friend, called her “constantly” on the night of

Rousseau’s murder to inquire about buying Peña’s Camaro.            While the timing was

unclear, Lopez admitted to going to Wal-Mart with Garza that night, and later to

Rousseau’s trailer park to look for Peña.    Lopez admitted that she knew Peña was at

work that night, but said that she went to look for him at the trailer park anyway.   Lopez

acknowledged that she knew that Rousseau had moved her trailer to a new location from

its original position. Lopez also stated that she dropped off Garza at a party at a

Kingsville motel, then later picked him up from the motel and dropped him off at the

Love’s Truck Stop in Kingsville.     Lopez eventually admitted that after she dropped

Garza off at the truck stop, she drove by Rousseau’s trailer a second time to again look


                                             8
for Peña.

        Ranger Pauska asked Lopez why she did not mention Garza during her initial

interview with Corporal Frost immediately following Rousseau’s murder.                 Lopez

admitted to lying to the initial investigators because she was “afraid” to tell them about

Garza because her car “smelled like alcohol.” Lopez described Garza as “all messed

up” and “coked up” on the night of Rousseau’s murder and that Garza “gets scary when

he’s like that.” Toward the end of the interview, Lopez admitted that Garza had told her

that he and a friend of his were “going to get stuff” at the trailer park, but did not specify

what or where, specifically.   Lopez also admitted that she had wished Rousseau was

dead.

        The State called Garza as a witness.        Despite the grant of immunity, Garza

refused to testify and cited his Fifth Amendment right against self-incrimination.       See

U.S. CONST. amend V. As a result, the trial court held him in contempt of court. Lopez

did not testify.

        Through the law of parties, see TEX. PENAL CODE ANN. § 7.02 (West 2011), the

State alleged that Lopez intentionally caused Rousseau’s death by hitting her with a bat,

and that Rousseau’s death took place in the course of, or attempting to commit, burglary

of Rousseau’s home. The jury returned a guilty verdict against Lopez as charged.

The trial court sentenced Lopez to life imprisonment with the Texas Department of

Criminal Justice—Institutional Division.     Lopez filed a motion for new trial, but that

motion was denied. This appeal followed.




                                              9
                            II.    CALLING GARZA AS A WITNESS

         By her first issue, Lopez asserts that the trial court committed reversible error by

allowing the State to call Garza as a witness, when it was apparent that Garza would

invoke his Fifth Amendment privilege against self-incrimination.

         A. Applicable Law and Standard of Review

         As a starting point, an accused has a right to confront and cross-examine the

witnesses against him.      See U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400,

403–04 (1965); accord Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010).

However, the Fifth Amendment of the United States Constitution also provides that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

U.S. CONST. amend. V. To seek its protection in a criminal case, one must affirmatively

assert the privilege.    See Johnson v. State, 357 S.W.3d 653, 657 (Tex. Crim. App.

2012).

         The right to be free from comment about a failure to testify, however, is not

absolute.    See United States v. Robinson, 485 U.S. 25, 31–32 (1988) (holding that any

“direct” reference by a prosecutor’s comments to the failure of a defendant to testify is

too broad a reading of the Fifth Amendment and, instead, must be read in the context).

An exception to the general prohibition against allowing the jury to see a witness’s

invocation of a Fifth Amendment privilege arises in certain instances where the State

calls a witness who refuses to testify.   Coffey v. State, 796 S.W.2d 175, 178 (Tex. Crim.

App. 1990) (en banc). Under this exception, the State may call such a witness when

“the prosecutor’s case would be seriously prejudiced by a failure to offer him as a

witness.”    Id. (quoting United States v. Vandetti, 623 F.2d 1144, 1147 (6th Cir. 1980)).


                                              10
        Moreover, the Texas Court of Criminal Appeals held that a co-defendant witness

who had been granted use immunity for her testimony “did not have a valid basis for

refusing to testify.”    Coffey, 796 S.W.2d at 179. The Coffey Court cautioned, however,

that even though calling a co-defendant witness who had been granted use immunity for

testimony was constitutionally permissible, the State may nonetheless unfairly prejudice

a defendant “in a variety of ways,”—for example, “had the State asked the witness a

series of damaging questions in such a way as to invite the jury to assume that the

answers to each question would have been in the affirmative.”                 Id. at 179, n. 6.

        B. Discussion

        Lopez argues that the trial court erred by permitting the State to call Garza as a

witness despite his clear intention to invoke his Fifth Amendment right against

self-incrimination because the trial court unreasonably relied upon Coffey in this case.

The State counters that Coffey is binding precedent and that Garza had no such

privilege to assert in this case. We agree with the State.2

        After the State made its intentions known at trial that it would call Garza as a

witness, Garza’s counsel notified the trial court in open court that his client would

exercise his right to remain silent regarding all questions asked in this case.                    At that

point, the State made an application to grant Garza immunity for his testimony in this

case, which was granted by the trial court. Thus, once immunized, Garza no longer had

a valid basis for refusing to testify.       See Butterfield v. State, 992 S.W.2d 448, 449–50


        2
          To the extent that Lopez challenges the reasoning of the Texas Court of Criminal Appeals in
Coffey v. State, 796 S.W.2d 175, 177–78 (Tex. Crim. App. 1990) (en banc) and asks this Court to overrule
the precedent set forth therein, we decline the invitation. See Ervin v. State, 331 S.W.3d 49, 53 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d) (“As an intermediate court of appeals, we are bound to follow the
precedent of the court of criminal appeals.”); see also TEX. CONST. art. 5 § 5 (court of criminal appeals is
final authority for criminal law in Texas).

                                                    11
(Tex. Crim. App. 1999). At that point, Garza’s refusal to testify was punishable by

contempt.       See id. Accordingly, we hold that the trial court’s allowing of the State to

call Garza as a witness was “constitutionally permissible” and not in error.     See Coffey,

796 S.W.2d at 179.

       Despite there being no initial error, the State nevertheless may have “unfairly

prejudiced” Lopez by asking Garza “a series of damaging questions in such a way as to

invite the jury to assume that the answers to each question would have been in the

affirmative.”    Id. at 179, n. 6.   In this case, the following exchange took place with

Garza on the witness stand:

       [STATE’S PROSECUTOR]:                Sir, would you please state your name
                                            for the record?

       GARZA:                               George Garza, III.

       [STATE’S PROSECUTOR]:                Mr. Garza, are you the same George
                                            Garza that is charged as a co-defendant
                                            with the defendant in this case, Corina
                                            Lam      Lopez,     in    Cause     No.
                                            10-CRF-0374-1?

       GARZA:                               (No response.)

       [STATE’S PROSECUTOR]:                Sir, are you also charged with the same
                                            offense, the murder of Susan Rousseau,
                                            as the defendant in this case, Corina
                                            Lam Lopez?

       GARZA:                               (No response.)

       [STATE’S PROSECUTOR]:                I’d ask the Court to instruct the witness
                                            to answer the question.

       THE COURT:                           Mr. Garza, the Court is instructing you at
                                            this time that pursuant to the order that I
                                            signed granting you use immunity, you
                                            are order to answer the question, sir.
                                            Are you going to answer the question or

                                              12
                                            are you going to refuse to answer the
                                            questions, sir?

       GARZA:                               (No response.)

       The trial court then held Garza in contempt of court and allowed the State to

proceed with its questioning:


       [STATE’S PROSECUTOR]:                Mr. Garza, do you know what happened
                                            to Susan Rousseau that caused her
                                            death on December the 7th or December
                                            the 6th of 2005?

       GARZA:                               (No response.)

       The trial court again held Garza in contempt for refusing to answer the State’s

question.     At this point, the State passed Garza as a witness, and Lopez did not

cross-examine Garza.

       The Coffey Court cited Washburn v. State, 299 S.W.2d 706 (Tex. Crim. App.

1956) as an example of how the State can unfairly prejudice a defendant in its

examination of a witness in this situation.   In Washburn, the State asked the witness in

a murder trial “fact[-]laden questions” from a twenty-one page statement of facts and was

“in detail as to names, dates, and places.”        Id. at 707.   This line of questioning,

according to the court of criminal appeals, was erroneous because it “permitted” the

State to “plant in the jury’s mind full details as to how they claimed the crime was

committed,” and that the State’s “only substantive evidence . . . was the answer of the

witness that he refused to answer. . . .”

       Based on this record, we conclude that Lopez failed to object to any questions

asked of Garza by the State to properly preserve error for our review.   See TEX. R. APP.

P. 33.1(a).     However, even assuming without deciding that error was properly

                                              13
preserved, we conclude that the State’s examination of Garza did not unfairly prejudice

Lopez.     Two questions involved the identification of Garza as a co-defendant in the

case, while the third question asked if he knew what happened to Rousseau that caused

her death.     None of the questions asked of Garza were detailed and “fact-laden” from

which the jury could have inferred Lopez’s guilt and become unfairly prejudicial.           See

Perez v. State, 41 S.W.3d 712, 720 (Tex. App.—Corpus Christi 2001, no pet.)

(distinguishing case from Washburn). Accordingly, we overrule Lopez’s first issue.

                        III.   LESSER-INCLUDED OFFENSE INSTRUCTION

         By her second issue, Lopez contends that the trial court reversibly erred by failing

to sua sponte submit a jury charge that omitted the lesser-included offense instruction for

felony murder.

         A. Standard of Review

         Our first duty in analyzing a jury-charge issue is to determine whether error exists.

See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc).              If we find

error, we analyze it for harm.     Id. The degree of harm necessary for reversal depends

on whether the error was preserved by objection.          Id.   If the error was preserved by

objection, we will reverse if we find “some harm” to the defendant’s rights.          Id.   If no

objection was made, we will reverse only if the record shows “egregious harm” to the

defendant. Id.

         B. Discussion

         Lopez argues that “the trial court erred in failing on its own initiative to include an

instruction on the lesser-included offense of felony murder . . . because the circumstances

of the present case would have supported submission of the lesser-charge.”


                                               14
       This issue was addressed directly by the Texas Court of Criminal Appeals in

Tolbert v. State, 306 S.W.3d 776 (Tex. Crim. App. 2010). In Tolbert, the intermediate

appellate court held that an appellant who had no objection to the trial court charging the

jury only on capital murder, rather than adding a lesser-included offense, did not operate

as an estoppel to prevent the appellant from claiming on appeal that the trial court should

have sua sponte instructed the jury on the lesser-included offense of murder. See id. at

779. The court of appeals further held that appellant’s failure to object to the trial court’s

“error” in not sua sponte instructing the jury on the lesser-included offense of murder

should have been evaluated under the Almanza “egregious-harm” standard. See id.;

see generally Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc).

       The court of criminal appeals concluded that the intermediate court’s holding was

erroneous because the court of appeals should have first decided whether it was “error”

for the trial court not to sua sponte instruct the jury on the lesser-included offense of

murder.   Tolbert, 306 S.W.3d at 781.       That analysis, in turn, required the court of

appeals to determine whether a jury instruction on a lesser-included offense of murder

was “applicable to the case.” Id. (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim.

App. 1998) (en banc) (holding that a trial court has a duty to sua sponte submit a charge

setting forth the law “applicable to the case.”)). The Tolbert Court further held that

lesser-included offenses are “like defensive issues and . . . a trial court is not statutorily

required to sua sponte instruct the jury on lesser-included offenses because these

issues ‘frequently depend upon trial strategy and tactics.’”    Tolbert, 306 S.W.3d at 780

(quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

Furthermore, the court of criminal appeals cited the following excerpt from the Dix and


                                             15
Dawson treatise on criminal practice and procedure as instructive on this issue:

      Because of the strategic nature of the decision, it is appropriate for the trial
      court to defer to the implied strategic decisions of the parties by refraining
      from submitting lesser offense instructions without a party's request. It is
      clear that the defense may not claim error successfully on appeal due to the
      omission of a lesser included offense if the defense refrained from
      requesting one. Likewise, any error in the improper submission of a lesser
      included instruction is waived if the defense fails to object to the instruction.

Tolbert, 306 S.W.3d at 781 (quoting 43 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL

PRACTICE   AND   PROCEDURE § 36.50 (West Supp. 2006)); see also 43 GEORGE E. DIX &

JOHN M. SCHMOLESKY, CRIMINAL PRACTICE AND PROCEDURE § 43.47 (West 2011). Simply

put, a trial court has no duty to sua sponte instruct the jury on a lesser-included offense

absent a request by the defense for its inclusion in the jury charge. See Tolbert, 306

S.W.3d at 781. With that framework in mind, we turn to the present case.

      Our first duty in analyzing a jury charging issue is to determine whether error

exists. Ngo, 175 S.W.3d at 743. The record shows that the following exchange took

place during the trial court’s charge conference:

      THE COURT:                          [ . . . . ] I need to start with what lessors
                                          [sic], if any, is Defense [sic] requesting in
                                          the charge.

      [DEFENSE COUNSEL]:                  No lessers [sic]. We’re not requesting
                                          any lesser-included offenses.

      THE COURT:                          Is    the    State    requesting     any
                                          lesser-included offenses in the charge?

      [STATE’S PROSECUTOR]:               No, Your Honor.

      Lopez argues that the trial court erred by not sua sponte instructing the jury on the

lesser-included offense of felony murder. We disagree. A trial court has no duty to sua

sponte instruct the jury on lesser-included offenses absent a request by the defense for


                                             16
its inclusion. See Tolbert, 306 S.W.3d at 781. It is clear that neither party requested a

lesser-included offense to be included in the charge from the trial court. Therefore,

because no error exists, our analysis ends here. See Ngo, 175 S.W.3d at 743. We

overrule Lopez’s second issue.

                            IV.    SUFFICIENCY OF THE EVIDENCE

         By her third and fourth issue, which we combine, Lopez challenges the sufficiency

of evidence related to her criminal liability under the law of parties.

         A. Applicable Law and Standard of Review

         We apply the standard articulated in Jackson v. Virginia to determine whether the

evidence is sufficient to support a criminal conviction.     443 U.S. 307, 319 (1979); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (holding that

the Jackson standard of review is the “only standard” that should be applied in a

sufficiency review).    Under Jackson, we examine the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.        443 U.S. at 319.

         The elements of the offense are measured 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.   Villarreal, 286 S.W.3d at 327.




                                              17
         We defer to the jury's determinations of credibility and weight to be given to the

evidence because jurors are the sole fact-finders.    See Brooks, 323 S.W.3d at 899; see

also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979) (“The jury, in all cases, is the

exclusive judge of the facts proved, and of the weight to be given to the testimony. . . .”).

Each fact need not point directly and independently to the guilt of Lopez, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.    Hooper v. State, 214 S.W.3d 9, 13 (2007).         Specifically, to determine

whether an individual is a party to an offense, we look at “events occurring before, during

and after the commission of the offense and may rely on actions of the defendant which

show an understanding and common design to do the prohibited act.”           Gross v. State,

380 S.W.3d 181, 186 (Tex. Crim. App. 2012); see Hooper, 214 S.W.3d at 13.

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, or party status, and circumstantial evidence alone can be sufficient to establish

guilt.   See Gross, 380 S.W.3d at 186; Hooper, 214 S.W.3d at 13.

         B. Discussion

         Lopez argues that the evidence is insufficient to establish her guilt as a party

under penal code section 7.02(a)(2) and/or under penal code section 7.02(b).       See TEX.

PENAL CODE ANN. § 7.02(a)(2), (b) (West 2011). We address each argument in turn.

         In this case, the State charged Lopez under what is commonly referred to as the

“law of parties” to hold her responsible for Rousseau’s murder that was allegedly

committed by Garza. While the presence of the accused at the scene of the crime is

not alone sufficient to prove that person is a party to the crime, it is a circumstance

tending to prove guilt, which, combined with other facts, may suffice to show that the


                                             18
accused was a participant.           Escobar v. State, 799 S.W.2d 502, 506 (Tex. App.—Corpus

Christi 1990, writ ref’d) (citing Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App.

1987)).     Moreover, in determining whether the accused participated as a party, the trial

court may look to events before, during and after the commission of the offense, and

may rely on actions of the defendant which show an understanding and common design

to do the prohibited act.          Escobar, 799 S.W.2d at 506 (citing Cordova v. State, 689

S.W.2d 107, 111 (Tex. Crim. App. 1985) (en banc)).

        Accordingly, a hypothetically correct capital murder jury charge in this case would

state that Lopez is guilty if a jury finds beyond a reasonable doubt that either as a principal

actor, as a party under section 7.02(a)(2), or as a co-conspirator under section 7.02(b),

Lopez intentionally caused Rousseau’s death by hitting her with a bat, and that

Rousseau’s death took place in the course of, or attempting to commit, burglary of

Rousseau’s home.3 Because the charge authorized the jury to convict on alternative

theories, the verdict of guilt will be upheld if the evidence was sufficient on any one of the

theories. Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005).

        First, the evidence sufficiently shows that a capital murder was committed. The

evidence shows that Rousseau was brutally beaten with a baseball bat, as illustrated by

the trauma inflicted to her body, as well as blood splatter that covered the walls near

where her body was found.                 Furthermore, Dr. Fernandez, the medical examiner,

testified that Rousseau’s body had multiple contusions and abrasions throughout the

body, including her face, multiple skull fractures, and contusions to the left side of her
        3
           A person commits burglary of a habitation if without the effective consent of the owner, the person
(1) enters a habitation, not then open to the public, with intent to commit a felony, theft, or an assault; or (2)
remains concealed, with intent to commit a felony, theft, or an assault, in a habitation; or (3) enters a
habitation and commits or attempts to commit a felony, theft, or an assault. See TEX. PENAL CODE ANN. §
30.02 (West 2011).

                                                       19
brain.     Furthermore, Dr. Fernandez’s undisputed testimony stated that Rousseau’s

cause of death was blunt head trauma caused by homicide.          The evidence also shows

that Rousseau’s murder was committed in the course of the commission of a burglary of

her home.       According to the evidence: the phone cable to Rousseau’s trailer was

severed; her front door frame was damaged, indicating a forced entry; and Rousseau’s

baseball bat was for self protection, which lends itself to the conclusion that Rousseau

did not know her visitor, or was not expecting anyone.

          1. Section 7.02(a)(2)

          Next, we turn to Lopez’s sufficiency challenge under penal code section

7.02(a)(2). Under section 7.02(a)(2), a person is criminally responsible pursuant to the

law of parties if:

          acting with intent to promote or assist the commission of the offense, [the
          defendant] solicits, encourages, directs, aids, or attempts to aid the other
          person to commit the offense.

TEX. PENAL CODE ANN. § 7.02(a)(2).

          As a starting point, “proof of motive is admissible as a circumstance indicating

guilt.” Miranda v. State, 813 S.W.2d 724, 733 (Tex. App.—San Antonio 1991, writ

ref’d).    In this case, Lopez’s motive to kill Rousseau was apparent leading up to

Rousseau’s murder. Lopez’s ex-boyfriend/lover, Peña, began dating Rousseau shortly

after his ten-year relationship with Lopez ended.       Following the breakup, Lopez sent

Rousseau incoherent and threatening letters, which referenced Rousseau’s relationship

with Peña.      The evidence also showed that Lopez drove her vehicle in and around the

Oasis Trailer Park, where Rousseau lived.           Testimony also shows that Rousseau

became so concerned with Lopez’s behavior that she moved trailer lots.           Lopez was


                                              20
also aware that Rousseau had moved trailer lots.          Furthermore, Lopez told Ranger

Pauska that she had wished Rousseau was dead.

       Next, Lopez admitted to Ranger Pauska that she had twice driven by Rousseau’s

trailer on the night of the murder—the first time with Garza, and the second time alone.

Lopez stated that both times, she went looking for Peña to inquire about his Camaro.

However, the evidence shows that Lopez knew Peña was at work that night and not at

Rousseau’s trailer home.      Furthermore, Lopez told Ranger Pauska that she did not

“care for Garza,” but drove him around Kingsville to three locations on the night of

Rousseau’s murder. Lopez also stated during her interview that Garza told her that he

and a friend were “going to get stuff” at the trailer park.

       The record also shows that following Rousseau’s murder, Lopez misled police by

lying to investigators about Garza, as well as providing false tips to the Kingsville

Crimestoppers hotline.      Lopez initially denied to Corporal Frost that she was in the

area of the Oasis Trailer Park on the night of the murder. Lopez also told Corporal

Frost that Garza was someone who was interested in buying Peña’s Camaro, and

nothing more.    Lopez later retracted both of these assertions during her interview with

Ranger Pauska in 2010.      Lopez justified her change-in-story by explaining that she was

“afraid” to tell Corporal Frost that she had been with Garza because her car had smelled

like alcohol. Further, the evidence shows that Lopez made several anonymous phone

calls to the Kingsville Crimestoppers tip line and gave police the name of a subject,

“Ricky Segura,” who police could never identify or locate.      Kingsville detectives later

identified Lopez as the caller, when police officers found her using a payphone to make

one of the calls.   Providing false statements indicate a consciousness of guilt and an


                                              21
attempt to cover up a crime.     See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.

2000) (considering defendant’s false statements to the media in its sufficiency analysis);

Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. Crim. App. 1999) (holding that

defendant’s changing of his story is evidence of consciousness of guilt).

        To summarize, the evidence shows that a rational jury could have found (1)

Rousseau was intentionally beat to death with a baseball bat in the course of, or during

an attempting to commit, burglary of Rousseau’s home; (2) Lopez had a motive to kill

Rousseau; (3) Lopez was present with Garza at the trailer park on the night of the

murder; and (4) Lopez lied and provided false information to police following the murder

to indicate a consciousness of guilt.    Accordingly, after viewing this evidence in a light

favorable to the verdict, we conclude that a rational jury could have found Lopez guilty of

capital murder under penal code section 7.02(a)(2) beyond a reasonable doubt.            See

Escobar v. State, 799 S.W.2d at 506.

        2. Section 7.02(b)

        As noted in the previous section of this opinion, we conclude that a rational jury

could have found Lopez guilty of capital murder under section 7.02(a)(2). However,

even if the evidence supports Lopez’s argument that she did not intend for Rousseau’s

murder to occur, the evidence nevertheless supports Lopez’s conviction under section

7.02(b).

        Under penal code section 7.02(b), one is criminally responsible under the law of

parties if:

        [I]n the attempt to carry out a conspiracy to commit one felony, another
        felony is committed by one of the conspirators, all conspirators are guilty of
        the felony actually committed, though having no intent to commit it, if the
        offense was committed in furtherance of the unlawful purpose and was one

                                             22
       that should have been anticipated as a result of the carrying out of the
       conspiracy.

Id. A person commits criminal conspiracy if he has the intent to commit a felony, agrees

with another to engage in conduct that would constitute the offense, and performs an

overt act in pursuance of that agreement. Id. § 15.02(a) (West 2011).

       Rousseau’s murder took place in the late evening/early morning hours of

December 5-6, 2003. Evidence shows that Rousseau was awake at the time of her

murder. Police found Rousseau’s Crock Pot on and in use, as well as an open book

face-down on the top of her bed. The record also shows that Rousseau’s telephone

cable was severed, which is probative to show that the perpetrator knew that someone

was inside of the trailer. The evidence also shows that the perpetrator was uninvited as

shown by the damage to the door frame of Rousseau’s trailer. Accordingly, we conclude

that the evidence is sufficient to show that a burglary of Rousseau’s habitation was

committed. The underlying intent of the burglary, see TEX. PENAL CODE ANN. § 30.02

(West 2011), is irrelevant to this analysis, because burglary of a habitation “provides a

particularly high potential for violence.” Hughes v. State, 897 S.W.2d 285, 293 (Tex.

Crim. App. 1994); see generally Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (“[B]urglary, by

its nature, involves a substantial risk that the burglar will use force against a victim in

completing the crime.”).   Due to this high potential for violence, it is reasonable for a jury

to conclude that even if Lopez had no intent to murder Rousseau, it was nevertheless a

crime that should have been anticipated in light of the particularly high potential for

violence of burglary of a habitation.

       Therefore, after viewing this evidence in a light favorable to the verdict, we

conclude that a rational jury could have found Lopez guilty of capital murder under penal

                                            23
code section 7.02(b) beyond a reasonable doubt.      Lopez’s third and fourth issues are

overruled.

                       V.     INEFFECTIVE ASSISTANCE OF COUNSEL

        By her final issue, Lopez contends that trial counsel rendered ineffective

assistance of counsel by failing to move to quash her indictment.

        A. Applicable Law and Standard of Review

        We evaluate claims of ineffective assistance under the standards set forth by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).

See Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Under the Strickland standard, appellant must show by a preponderance of evidence

that:   (1) trial counsel's representation fell below an         objective   standard    of

reasonableness; and (2) there is a reasonable probability that the result of the

proceeding would have been different but for the attorney's deficient performance.

Strickland, 466 U.S. at 687; Jaynes, 216 S.W.3d at 851.     “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”       Ex parte Ellis, 233

S.W.3d 324, 330–31 (Tex. Crim. App. 2007).      If an appellant fails to prove one prong of

the test, we do not need to address the other prong.    See Strickland, 466 U.S. at 697;

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). The burden of proving this

ineffectiveness rests upon the defendant by a preponderance of the evidence.

Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995)).

        When evaluating the quality of trial counsel's representation, we look to “the

totality of the representation and the particular circumstances of each case in evaluating

the effectiveness of counsel.”   Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.


                                           24
1999).    “[A] single egregious error of omission or commission” can constitute ineffective

assistance, but the Texas Court of Criminal Appeals has been hesitant to designate any

particular error as per se ineffective assistance.   Id. We apply “a strong presumption

that counsel's conduct fell within the wide range of reasonable professional assistance.”

Id.   Allegations of ineffectiveness must therefore be “firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness.”          Id. (citing

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal is

usually inadequate to make an ineffectiveness claim because the record is frequently

undeveloped.      Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

This is especially true where the claimed error is one of omission and “counsel's reasons

for failing to do something do not appear in the record.”   Id.

         The Texas Court of Criminal Appeals has explained that “trial counsel should

ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.”   Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing

Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)).         Unless counsel had an

opportunity to explain his trial strategy, Texas appellate courts should “not find deficient

performance unless the challenged conduct was ‘so outrageous that no competent

attorney would have engaged in it.’” Goodspeed, 187 S.W.3d at 392 (citing Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

         B. Discussion

         Lopez argues that her trial counsel provided ineffective assistance of counsel by

failing to file a motion to quash the State’s superseding indictment, or otherwise seek to

clarify the underlying offenses compromising the burglary, and, as a result, the State


                                            25
surprised counsel by expanding the basis for conviction in the jury charge.

       Lopez’s capital murder indictment alleged that she “did then and there

intentionally cause the death of individual, namely, Susan Rousseau, by hitting her with a

bat, and the defendant was then and there in the course of committing or attempting to

commit the offense of burglary of a habitation of Susan Rousseau, who was the owner of

said building . . . .” Under the penal code, a person commits burglary of a habitation if

without the effective consent of the owner, the person (1) enters a habitation, not then

open to the public, with intent to commit a felony, theft, or an assault; or (2) remains

concealed, with intent to commit a felony, theft, or an assault, in a habitation; or (3) enters

a habitation and commits or attempts to commit a felony, theft, or an assault. See TEX.

PENAL CODE ANN. § 30.02 (West 2011). The indictment, as Lopez points out, did not

specifically allege which burglarious intent Lopez had when she committed this offense.

However, it is a well-known rule that the State is not required to plead the constituent

elements of the offense constituting the aggravating feature of capital murder, even in the

face of a motion to quash. See Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App.

1995) (en banc); Ramirez v. State, 815 S.W.2d 636, 642 (Tex. Crim. App. 1991) (en

banc); Marquez v. State, 725 S.W.2d 217, 236 (Tex. Crim. App. 1987), overruled on other

grounds by Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992); Kitchens v.

State, 279 S.W.3d 733, 736 (Tex. App.—Amarillo 2007, pet. ref’d) (internal citations

omitted).

       Accordingly, even assuming that Lopez’s trial counsel’s failure to file a motion to

quash the State’s superseding indictment fell below an objective standard of

reasonableness, we cannot conclude that there is a reasonable probability that the result


                                              26
of the proceeding would have been different but for the attorney’s deficient performance,

because such a motion would not have been successful under the rule cited above. See

Alba, 905 S.W.2d at 585. Accordingly, Lopez’s final issue is overruled.

                                   VI.    CONCLUSION

       We affirm the trial court’s judgment.



                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


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

Delivered and filed the
26th day of November, 2013.




                                               27
