Opinion filed September 30, 2019




                                               In The


            Eleventh Court of Appeals
                                           __________

                                    No. 11-17-00259-CR
                                        __________

                     MICHAEL JOHN ZARATE, Appellant
                                                  V.
                         THE STATE OF TEXAS, Appellee

                         On Appeal from the 35th District Court
                                 Brown County, Texas
                            Trial Court Cause No. CR23534

                          MEMORANDUM OPINION
        The jury convicted Michael John Zarate of murder and assessed his
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for life.1 See TEX. PENAL CODE ANN. § 19.02 (West 2019).
Appellant brings four issues on appeal. He contends that the trial court abused its
discretion when it (1) denied his requested jury instruction on self-defense,

        1
        In the same trial, the jury also convicted Appellant of the offense of tampering with evidence.
Appellant’s appeal of his conviction for tampering with evidence is the subject of Cause No. 11-17-00260-
CR.
(2) admitted evidence of extraneous misconduct, and (3) denied his requested jury
instruction on sudden passion. Appellant also contends that he received ineffective
assistance of counsel. We affirm.
                                         Background Facts
      On November 2, 2014, Appellant and his girlfriend, Crystal McConnell,
arrived at their home at the same time as their neighbor, Ernesto Gonzales, Jr. When
Appellant and McConnell exited their vehicle, Gonzales said to Appellant, “Come
on, Chester.”2 Gonzales also said that he had a skirt inside for Appellant and that he
was “gonna f--k [Appellant] in the a-s.” Appellant responded, “Step on my porch
and I’ll show you, little b---h.” This exchange continued for at least two to three
minutes until McConnell convinced Appellant to go inside the house.
      Appellant went inside for two to three minutes and stared at Gonzales through
Appellant’s bedroom window. Then, Appellant went outside with a gun and went
“after” Gonzales, who was standing in the gravel between their yards. When
Gonzales saw Appellant, Gonzales ran away from Appellant. McConnell began
screaming, “Michael John, stop; Michael John, stop.” When Gonzales ran to his
front yard, Appellant shot him, but Gonzales kept running. Appellant quickly
followed with his gun raised. Gonzales ran into an alley, and a witness, Arnold
Mendoza, heard more shots. Gonzales’s neighbor, Gary Holland, found Gonzales
lying in the alley. Before he died, Gonzales asked Holland for help. Gonzales was
shot in the left arm, and the bullet passed through his arm and into his chest, causing
injuries to his lungs and heart. Appellant got into McConnell’s car and left the scene
with McConnell.




      2
          McConnell testified that she took the word “Chester” to mean “child molester.”
                                                    2
                            Alleged Jury Charge Errors
      In his first issue, Appellant contends that the trial court abused its discretion
when it denied his requested jury instruction on self-defense at the conclusion of the
guilt/innocence phase. Appellant asserts that he was entitled to this instruction
because of his contentious relationship with Gonzales, the extreme wording and
threats used by Gonzales, and Appellant’s emotional state. We disagree.
      The State presented evidence at trial that Gonzales and Appellant did not get
along well: they frequently argued and had a physical altercation in the past. A few
weeks before the shooting, Appellant walked to Gonzales’s house; they fought; and
Appellant bit off part of Gonzales’s ear.
      In our review of an alleged jury charge error, we first determine whether error
occurred; if no error occurred, our analysis ends. Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). If error occurred, whether it was preserved determines
the degree of harm required for reversal. Id.; see Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985)). As here, where a timely objection was lodged at trial, Appellant
is entitled to a reversal if the error resulted in “some harm.” Elizondo v. State, 487
S.W.3d 185, 204 (Tex. Crim. App. 2016).
      We review a trial court’s decision not to submit an instruction in the jury
charge for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 121–22
(Tex. Crim. App. 2000). A trial court must charge the jury fully and affirmatively
on the law applicable to every issue raised by the evidence. See TEX. CODE CRIM.
PROC. ANN. art. 36.14 (West 2007). The trial court must give a requested instruction
on “every defensive issue raised by the evidence, regardless of whether the evidence
is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks
that the testimony is not worthy of belief.” Walters v. State, 247 S.W.3d 204, 209
(Tex. Crim. App. 2007). If there is some evidence on each element of the defense
                                            3
that, if believed by the jury, would support a rational inference that each element is
true, then the defense has been raised. Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.
Crim. App. 2007). As far as self-defense is concerned, “if the evidence, viewed in
the light most favorable to the defendant, does not establish self-defense, the
defendant is not entitled to an instruction on the issue.” Ferrel v. State, 55 S.W.3d
586, 591 (Tex. Crim. App. 2001).
      Section 9.31 of the Texas Penal Code authorizes the use of force in self-
defense “when and to the degree the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” PENAL § 9.31(a). The complainant’s overt acts or words must
show that the accused reasonably believed he was in danger. Preston v. State, 756
S.W.2d 22, 25 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). To lawfully use
deadly force in self-defense, the defendant must be justified in the use of force under
Section 9.31 and must also reasonably believe that his action is immediately
necessary to protect himself from the other’s use or attempted use of deadly force.
PENAL § 9.32(a). “Deadly force” is “force that is intended or known by the actor to
cause, or in the manner of its use or intended use is capable of causing, death or
serious bodily injury.” Id. § 9.01(3).
      The evidence shows that Gonzales made verbal threats to Appellant.
However, verbal provocation alone does not justify the use of force against another.
Id. § 9.31(b)(1); Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017).
Additionally, there is no evidence that Gonzales used or attempted to use any kind
of force, deadly or otherwise, when Appellant shot and killed him.            Instead,
Appellant was able to go inside his house after their verbal argument, and Gonzales
ran away from Appellant when Appellant returned with a gun. There is nothing in
the record to support the contention that Appellant reasonably believed the
immediate use of deadly force was necessary to protect himself against Gonzales.
                                           4
See McBride v. State, 359 S.W.3d 683, 694–95 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d) (self-defense instruction not warranted when defendant retreated
from a disturbance, obtained a gun, and reappeared to escalate the disturbance at a
time when he was under no threat of violence). While Appellant had a previous
physical altercation with Gonzales, this prior confrontation could not have
reasonably caused Appellant to believe that deadly force was immediately necessary
to protect himself against Gonzales. See Smith v. State, 638 S.W.2d 208, 210 (Tex.
App.—Fort Worth 1982, no pet.). Thus, the trial court properly denied Appellant’s
request for an instruction on self-defense. We overrule Appellant’s first issue.
      In his fourth issue, Appellant contends that the trial court abused its discretion
when it denied his requested jury instruction on sudden passion at the end of the
punishment phase. Appellant asserts that he was entitled to this instruction for the
same reasons that he was entitled to an instruction on self-defense. Specifically, he
directs our attention to evidence of “the persistent tension, arguments[,] and fights
between the Appellant and Gonzales” as testified to by friends and neighbors.
Appellant also contends that Gonzales’s comments toward Appellant prior to the
shooting were highly inflammatory and would have produced passion in any person.
             To justify a jury instruction on the issue of sudden passion at the
      punishment phase, the record must at least minimally support an
      inference: (1) that the defendant in fact acted under the immediate
      influence of a passion such as terror, anger, rage, or resentment; (2) that
      his sudden passion was in fact induced by some provocation by the
      deceased or another acting with him, which provocation would
      commonly produce such a passion in a person of ordinary temper; (3)
      that he committed the murder before regaining his capacity for cool
      reflection; and (4) that a causal connection existed “between the
      provocation, passion, and homicide.”

Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013) (quoting McKinney v.
State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005)). “It does not matter that the


                                           5
evidence supporting the submission of a sudden passion instruction may be weak,
impeached, contradicted, or unbelievable.” Id. (citing McKinney, 179 S.W.3d at
569). If the evidence thus raises the issue from any source, during either phase of
trial, then the defendant has satisfied his burden of production, and if the defendant
requests the instruction, the trial court must submit the issue in the jury charge.
Wooten, 400 S.W.3d at 605; Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App.
2003) (per curiam).
      At the time the trial court denied Appellant’s requested instruction on sudden
passion, the trial court stated that it believed that the instruction was not warranted
under McKinney. The court held in McKinney that an instruction on sudden passion
is proper only when the sudden passion arose out of provocation by the deceased at
the time of the offense and that passion that is solely the result of former provocation
does not qualify. 179 S.W.3d at 570. Thus, the anger that Appellant may have had
toward Gonzales arising from previous encounters between the two would not justify
a sudden passion instruction. See id.
      With respect to the encounter between Appellant and Gonzales in front of their
houses on the day of the shooting, McConnell provided the evidence of the encounter.
She testified that, after Gonzales made inflammatory comments to Appellant,
Appellant told Gonzales: “Step on my porch and I’ll show you, little b---h,” while
laughing and taunting Gonzales. McConnell testified that Appellant stood on their
porch “[a]t least two or three minutes.” Appellant eventually went inside their house
in response to McConnell’s urging him to do so. McConnell testified that Appellant
then began staring at Gonzales through a bedroom window. McConnell estimated
that another two to three minutes elapsed while Appellant was inside the house before
Appellant retrieved the firearm and went back outside to shoot Gonzales.
      Assuming that a jury could have found that Gonzales’s remarks would
commonly produce sudden passion in a person of ordinary temper, there must be
                                           6
evidence that the provocation rendered Appellant incapable of cool reflection. See
Beltran v. State, 472 S.W.3d 283, 295 (Tex. Crim. App. 2015). There is no evidence
that Appellant was rendered incapable of cool reflection.            To the contrary,
approximately five minutes elapsed after Gonzales’s provocation during which
Appellant retreated inside his house staring at Gonzales through a bedroom window.
Thus, there is no evidence that Appellant shot Gonzales as a spontaneous response
to anger but, rather, shot Gonzales as a reflective and deliberate response. See
Walker v. State, 557 S.W.3d 678, 688–89 (Tex. App.—Texarkana 2018, pet. ref’d)
(citing Fry v. State, 915 S.W.2d 554, 558–59 (Tex. App.—Houston [14th Dist.]
1995, no pet.)). Accordingly, the trial court did not err when it denied Appellant’s
request for a sudden passion instruction. We overrule Appellant’s fourth issue.
                               Admission of Evidence
      In his second issue, Appellant contends that the trial court abused its discretion
when it admitted evidence of extraneous misconduct. Tommy Dale Holland, Jr.,
who was a friend of Gonzales, testified that Appellant “pulled a gun on [Gonzales]”
a week before the shooting. Appellant objected to the admission of this evidence on
multiple grounds including Rule of Evidence 404(b). The trial court overruled
Appellant’s objection. After the State presented this evidence, the trial court
provided a limiting instruction to the jury at the request of Appellant’s trial counsel.
Appellant asserts that a prior incident involving a firearm is character-conformity
testimony prohibited by Rule 404(b) and is more prejudicial than probative. See
TEX. R. EVID. 403, 404(b).
      We review a trial court’s ruling on admissibility of evidence for an abuse of
discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010).            This
standard of review applies to a trial court’s decision to admit or exclude extraneous
offense evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
We will uphold the trial court’s decision unless it lies outside the zone of reasonable
                                           7
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
We will uphold a trial court’s evidentiary ruling on appeal if it is correct on any
theory of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114,
125–26 (Tex. Crim. App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—
Eastland 2015, no pet.).
      Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity with that conduct.
TEX. R. EVID. 404(b)(1). This rule excludes evidence offered to prove bad character
and conduct in conformity with that bad character. De La Paz, 279 S.W.3d at 343.
Evidence of other crimes, wrongs, or acts may be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or rebuttal of a defensive theory. TEX. R. EVID.
404(b)(2); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003);
Hernandez v. State, 426 S.W.3d 820, 825 (Tex. App.—Eastland, 2014, pet. ref’d)
(mem. op.).
      Under Rule 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury or by considerations of undue delay or needless presentation
of cumulative evidence. TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854,
874 (Tex. Crim. App. 2009). “Rule 403 favors admission of relevant evidence and
carries a presumption that relevant evidence will be more probative than
prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render
v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is
unfairly prejudicial when it has the undue tendency to suggest an improper basis for
reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000);
Render, 347 S.W.3d at 921.


                                         8
      In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991)). When
conducting a Rule 403 analysis, the trial court must balance:
      (1) the inherent probative force of the proffered item of evidence along
      with (2) the proponent’s need for that evidence against (3) any tendency
      of the evidence to suggest [a] decision on an improper basis, (4) any
      tendency of the evidence to confuse or distract the jury from the main
      issues, (5) any tendency of the evidence to be given undue weight by a
      jury that has not been equipped to evaluate the probative force of the
      evidence, and (6) the likelihood that presentation of the evidence will
      consume an inordinate amount of time or merely repeat evidence
      already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403,
however, does not require that the balancing test be performed on the record.
Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet. ref’d). In
overruling a Rule 403 objection, the trial court is assumed to have applied a Rule
403 balancing test and determined that the evidence was admissible. Id.
      When the trial court announced its ruling admitting the evidence of the prior
incident involving a firearm, it stated that the evidence was admissible because it
concerned the relationship between Appellant and Gonzales. The trial court also
stated that the probative value of the evidence did not outweigh its prejudicial nature.
Although the trial court did not expressly reference Article 38.36 of the Code of
Criminal Procedure, the State cites this provision as a basis for upholding the trial
court’s admission of the evidence. See CRIM. PROC. art. 38.36 (West 2018). This
provision states:
            In all prosecutions for murder, the state or the defendant shall be
      permitted to offer testimony as to all relevant facts and circumstances
      surrounding the killing and the previous relationship existing between

                                           9
      the accused and the deceased, together with all relevant facts and
      circumstances going to show the condition of the mind of the accused
      at the time of the offense.

Id. In some situations, prior acts of violence between the victim and the accused
may be offered to illustrate the nature of the relationship. Garcia v. State, 201
S.W.3d 695, 702 (Tex. Crim. App. 2006). “These specific acts of violence must
meet the requirements of the Rules of Evidence in order to be admissible.” Id. “[I]n
cases in which the prior relationship between the victim and the accused is a material
issue, illustrating the nature of the relationship may be the purpose for which
evidence of prior bad acts will be admissible.” Id. at 703.
      As reflected by our discussion of the previous two issues, the relationship
between Appellant and Gonzales was a material issue at trial. The evidence of
Appellant pulling a firearm on Gonzales during a previous encounter was admissible
under Rule 404(b) to show the nature of their relationship. See id. at 704; see also
TEX. R. EVID. 404(b). The evidence was not offered for the sole purpose of showing
that Appellant had a violent character or that he acted in conformity with it in
shooting Gonzales.      Furthermore, its probative value was not substantially
outweighed by the danger of unfair prejudice given the fact that the nature of the
relationship between the two men was a material issue at trial. Accordingly, the trial
court did not abuse its discretion by admitting the challenged evidence. We overrule
Appellant’s second issue.
                          Ineffective Assistance of Counsel
      In his third issue, Appellant contends that he received ineffective assistance
of counsel at trial. In the span of two and one-half pages in his brief, Appellant
generally alleges six matters for which he contends his trial counsel was ineffective.
He asserts that trial counsel was deficient for not making an opening statement,
failing to contest Appellant’s guilt during closing argument, calling only one witness

                                         10
whose testimony did not focus on the murder, cross-examining only a few witnesses,
helping the State introduce harmful evidence, and drawing the jury’s attention to
other harmful evidence. In response, the State devoted twenty-four pages of its brief
to address the manner in which trial counsel represented Appellant at trial.
      To establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and the defendant must overcome the presumption that the challenged action could
be considered sound trial strategy. Id. at 689.
      A claim of ineffective assistance of counsel “must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when
counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Without this opportunity, an appellate court
should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim App. 2001)).


                                          11
      We first note that Appellant did not file a motion for new trial. Accordingly,
trial counsel has not had an opportunity to explain his trial strategy in response to
the matters that Appellant contends were deficient.       The matters that Appellant
contends were deficient are inherently matters that concern trial strategy. For
example, the decision to give an opening statement is “entirely discretionary” and
“imbued with strategic implications.” Calderon v. State, 950 S.W.2d 121, 127 (Tex.
App.—El Paso 1997, no pet.); see Darkins v. State, 430 S.W.3d 559, 570 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d). In fact, the trial court noted that the
absence of an opening statement from Appellant restricted the State’s use of
evidence at trial. Furthermore, “[c]losing argument is an area where trial strategy is
most evident.” Habib v. State, 431 S.W.3d 737, 742 (Tex. App.—Amarillo 2014,
pet. ref’d) (citing Flemming v. State, 949 S.W.2d 876, 881 (Tex. App.—Houston
[14th Dist.] 1997, no pet.)).
      Appellant also contends that trial counsel was ineffective because trial counsel
called only one witness whose testimony did not focus on the murder. The failure
to call witnesses does not constitute ineffective assistance without a showing that the
witnesses were available to testify and that their testimony would have benefited
Appellant. Rodriguez v. State, 459 S.W.3d 184, 199 (Tex. App.—Amarillo 2015,
pet. ref’d). Appellant has not shown which additional witnesses trial counsel could
have called, whether those witnesses were available to testify, and what their
purported testimony would have been or how it would have benefited Appellant.
Thus, we have nothing to review. See id. Accordingly, Appellant has failed to
demonstrate that trial counsel was ineffective on this basis.
      Additionally, Appellant contends that his trial counsel failed to effectively
cross-examine the State’s witnesses. In order to show that his trial counsel was
ineffective on this basis, Appellant must show what questions should have been
asked and what the answers would have been. See Davis v. State, 119 S.W.3d 359,
                                          12
370 (Tex. App.—Waco 2003, pet. ref’d). Appellant has not addressed in his brief
which witnesses trial counsel should have cross-examined, what questions trial
counsel should have asked, and what those witnesses would have testified to had
they been asked those questions. Further, the record contains no explanation for
why Appellant’s trial counsel limited his cross-examination to the questions asked.
Therefore, Appellant has failed to demonstrate that trial counsel was ineffective on
this basis.
        Given the strength of the evidence in this case of Appellant’s role in shooting
Gonzales, it is plausible that trial counsel concluded the best strategy might be to
appear open and honest in hopes of mitigating punishment. See Flemming, 949
S.W.2d at 881. In light of these circumstances, an attempt to mitigate punishment
could have been a very realistic trial strategy. See id. Trial counsel’s performance
was not so outrageous that no competent attorney would have engaged in it. See
Goodspeed, 187 S.W.3d at 392. In the absence of an explanation from trial counsel
of his trial strategy, we cannot conclude that his performance was deficient. See id.
We overrule Appellant’s third issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.


                                                                            JOHN M. BAILEY
September 30, 2019                                                          CHIEF JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.

        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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