NUMBER 13-19-00271-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FRANCISCO JAVIER ZAMARRIPA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 139th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Perkes Memorandum Opinion by Justice Longoria
Appellant Francisco Javier Zamarripa was convicted of aggravated sexual assault
of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021. By six issues that
we treat as five, he argues that: (1) the evidence was legally insufficient to sustain his
conviction; (2) the trial court erred by denying his motion for new trial; (3) he received ineffective assistance of counsel; (4) a three-page report was erroneously included in the
record, allowing the jury “to view hearsay evidence that was not admitted at trial”; and (5)
the trial court erred by denying his motion for mistrial based on improper jury argument.
We affirm.
I. BACKGROUND
On February 14, 2018, eight-year-old S.G. 1 informed her school counselor that
Zamarripa, her stepfather, “would get on top of her at night” and that there was blood in
her private parts. On the same day, S.G. was administered a SANE examination by Rosa
Aguirre, a SANE nurse. Aguirre testified concerning her conversation with S.G.:
Patient states, “I told my teacher, I don’t know her name and then three people came.” She puts [up] three fingers. “They asked me what my private parts are and then they asked me what happened at my house. I told them my private parts were here.” Points to mouth, points to female sexual organ, and points to her buttocks. “I told them when I was asleep, I felt pressure all over, and I felt a body and a lot of pressure on my body. It happened a long time ago, like, not yesterday but the other day, or the other day, but a while ago. It happened two times.” Puts two fingers up. “When I’m asleep I feel bones on top of me and also skin.” Touches her arm with her hand. “But I don’t wake up because my eyes are stick [sic] together.” Patient touches her eyes and holds them shut. “I feel pressure in my private part.” Patient points to female sexual organ. “I don’t know what it is when I’m asleep. I don’t even know that is it. One time when I woke up, I had blood in half of my underwear and when I went to pee.”
According to Aguirre, S.G.’s hymen had been torn, which was consistent with S.G. having
been penetrated by a male organ or an object. Aguirre testified that no disease, infection,
or other physical ailment could cause a torn hymen.
On April 10, 2018, Zamarripa was indicted for aggravated sexual assault of a child.
See id. The indictment alleged that on or about January 30, 2018, Zamarripa caused the
1 To protect the minor complainant’s identity, we will refer to her using an alias. See TEX. R. APP. P. 9.8.
2 penetration of S.G.’s sexual organ by his sexual organ or by some unknown object. On
March 28, 2019, jury trial began. S.G. was one of the witnesses to testify. Following trial,
Zamarripa was found guilty of the sole count of aggravated sexual assault of a child. The
jury assessed punishment at eighty years’ imprisonment in the Institutional Division of the
Texas Department of Criminal Justice. The trial court pronounced sentence as assessed
by the jury. This appeal ensued.
II. LEGAL SUFFICIENCY
In his first issue, Zamarripa argues that the evidence is legally insufficient to
sustain his conviction.
A. Standard of Review & Applicable Law
When reviewing the legal sufficiency of the evidence, “the relevant question 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.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). “The prosecution bears the
burden of proving all elements of the offense charged, and must persuade the factfinder
‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements.”
Niles v. State, 555 S.W.3d 562, 569 (Tex. Crim. App. 2018). The factfinder is the exclusive
judge of the facts, the credibility of the witnesses, and the weight to be given to the
testimony. See Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008); Bargas v.
State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“The jury
may choose to believe or disbelieve any portion of the witnesses’ testimony.”). We give
great deference to the trier of fact and assume the factfinder resolved all conflicts in the
3 evidence in favor of the verdict. See Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). We will uphold the verdict unless the factfinder “must have had reasonable
doubt as to any essential element.” Id. A reviewing court cannot overturn a conviction
simply because it disagrees with the jury’s verdict. See Bargas, 252 S.W.3d at 887.
“Courts give wide latitude to testimony given by child victims of sexual abuse.”
Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi–Edinburg 2008,
no pet.). The child complainant’s description of the abuse need not be precise. See id.
This rule “reflect[s] the important public policy that we cannot expect the child victims of
violent crimes to testify with the same clarity and ability as is expected of mature and
capable adults.” Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc).
The testimony of a child victim alone, uncorroborated by medical or physical evidence, is
sufficient to support a conviction of aggravated sexual assault of a child. TEX. CODE CRIM.
PROC. ANN. art. 38.07; see Gonzalez, 522 S.W.3d at 57.
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge and as authorized in the indictment. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc). Such a charge in this case would
state that a person commits aggravated sexual assault of a child if the actor intentionally
or knowingly penetrated the sexual organ of a child under the age of fourteen. TEX. PENAL
CODE ANN. § 22.021(a)(2)(B).
B. Analysis
Zamarripa raises several arguments related to the sufficiency of the evidence. He
first complains that “[d]ue to the lack of answers for a clear record, many of the key
elements of the offense have not been established.” Zamarripa is referring to the fact that
4 many of S.G.’s responses are recorded as “uh huh,” “huh uh,” or simply “(nods head).”
However, the prosecutor clarified during trial, “Just for the record, Judge, when she was
nodding, it’s a ‘yes,’ for the record.” Zamarripa did not object to this representation. To
the contrary, Zamarripa’s counsel immediately responded with, “I’m going to use that,”
indicating his assent to S.G.’s use of nodding. The jury was in a position to witness S.G.’s
responses, weigh her credibility, and determine the meaning of her nods and responses.
See Bartlett, 270 S.W.3d at 150. Furthermore, given courts’ leniency with the testimony
of child complainants in sexual assault cases, we find nothing inadequate with the form
of S.G.’s responses or the way they are represented in the record. See Gonzalez, 267
S.W.3d at 332.
As to the actual elements of the offense, Zamarripa asserts that due to inconsistent
testimony, a rational trier of fact could not have found the essential elements beyond a
reasonable doubt. First, Zamarripa complains that even though S.G. positively identified
Zamarripa as the offender at trial, she also admitted that she never actually saw
Zamarripa on top of her. Though S.G. felt “bones on top of me and also skin,” she did not
physically see the perpetrator because it was at night and her eyes were closed. However,
testimony adduced at trial established that only five individuals lived in S.G.’s home: S.G.,
her mother, Zamarripa, a seven-year-old boy, and a two-year-old boy. S.G. testified that
the “pressure” from the perpetrator being on top of her was enough to make her sore the
next morning. Given the testimony concerning the people who live with S.G. and the great
weight S.G. felt pressing on her during the night, a rational jury could have found beyond
a reasonable doubt that S.G. was capable of identifying Zamarripa without necessarily
seeing him.
5 Zamarripa also complains that there is insufficient evidence as to show penetration
of S.G.’s sexual organ by Zamarripa’s sexual organ or an unknown object. Zamarripa
points to the fact that S.G. never mentioned that he removed her underwear or his own
pants. Also, according to Zamarripa, S.G. never testified as to actually being penetrated
or seeing Zamarripa’s privates. However, there was testimony that S.G. had blood in her
underwear and that her hymen was torn. Additionally, S.G. gave the following testimony
concerning penetration when questioned by Zamarripa’s counsel:
[Counsel]: Okay, and he’s never taken your clothes off, correct?
[S.G.]: Uh-huh. (Nods head).
[Counsel]: Okay. And it’s never—never been in your cookie[ 2], right?
[S.G.]: Hmm?
[Counsel]: His private parts has [sic] never been in your cookie, right?
[S.G.]: Oh, it has.
[Counsel]: It has?
[S.G.]: The night—the night it happened.
This testimony was alone sufficient to establish that penetration occurred. See TEX. CODE
CRIM. PROC. ANN. art. 38.07; Gonzalez, 522 S.W.3d at 57. And even though S.G. did not
testify that she saw Zamarripa’s privates or that he pulled down her pants or underwear,
the jury was still free to believe S.G.’s testimony that Zamarripa had penetrated her sexual
organ. See Bargas, 252 S.W.3d at 887.
Zamarripa additionally asserts that the State failed to prove beyond a reasonable
doubt that the offense was committed prior to the presentment of the indictment.
2 S.G. referred to her privates as her “cookie.”
6 According to Zamarripa, the State failed in this burden due to the “complete lack of a
timeline.” However, the record established that on February 14, 2018, S.G. made her first
outcry statement, informing Aguirre that the offense did not occur within the last few days,
but rather a “while ago.” See Villalon, 791 S.W.2d at 134; Gonzalez, 267 S.W.3d at 332.
On April 10, 2018, the indictment was presented, which alleged that the offense occurred
on or about January 30, 2018. Thus, even though S.G. did not testify as to specific dates,
the evidence presented at trial shows that the offense was committed before April 10,
2018. The jury could have found beyond a reasonable doubt that the offense was
committed prior to the presentment of the indictment.
Lastly, Zamarripa also argues that the evidence was inconsistent, and therefore
insufficient, regarding the location of the offense. On one occasion at trial, S.G. testified
that the alleged offense occurred in the “other house.” Zamarripa argues that the State
thus failed to prove that the offense even occurred in Hidalgo County because the “other
house” could have been anywhere. However, S.G.’s mother testified that they had lived
within Hidalgo County for at least the two years prior to trial. The trial began in early 2019,
and the offense purportedly occurred in early 2018. We assume the jury resolved any
apparent conflicts in favor of the verdict. See Laster, 275 S.W.3d at 517. A rational jury
could have concluded beyond a reasonable doubt that the offense occurred in Hidalgo
County.
In summary, we do not find anything so illogical or inconsistent with S.G.’s
testimony as to cause a rational jury to necessarily have reasonable doubts about her
testimony. See Laster, 275 S.W.3d at 517. Viewing the evidence in the light most
favorable to the verdict, we conclude that a rational trier of fact could have found the
7 essential elements of aggravated sexual assault of a child beyond a reasonable doubt.
See Clayton, 235 S.W.3d at 778. We overrule Zamarripa’s first issue.
III. MOTION FOR NEW TRIAL
In his second issue, Zamarripa argues that the trial court erred by failing to grant
his motion for new trial based on prosecutorial misconduct related to the State’s failure to
hand over a forensic report.
We review a trial court’s denial of a motion for new trial for an abuse of discretion.
See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). The test for abuse
of discretion is “whether the trial court acted without reference to any guiding rules or
principles.” Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).
Pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), a defendant’s due process
rights are violated when the State withholds evidence that is favorable to a defendant.
A defendant must show the following requirements to establish a Brady violation: (1) the State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; and (3) the suppressed evidence is material. Favorable evidence for these purposes is any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal. Evidence is material for Brady purposes only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is one that is sufficient to undermine confidence in the outcome.
Fears v. State, 479 S.W.3d 315, 327 (Tex. App.—Corpus Christi–Edinburg 2015, pet.
ref’d) (internal citations omitted). Although we defer to the underlying factual findings
made by the trial court in its decision, we review de novo the materiality prong of a Brady
claim. See Ex parte Weinstein, 421 S.W.3d 656, 664 n.17 (Tex. Crim. App. 2014).
8 B. Analysis
Zamarripa argues that, even though he requested it before trial, the State never
gave him the forensic biology laboratory report that was generated on February 16, 2019.
This report contained the results of the rape kit administered to S.G. and indicated that
no semen was located on or in S.G. The prosecutor testified that the rape kit had been
processed by the Department of Public Safety (DPS) and that DPS was supposed to e-
mail the test results to the Hidalgo County Sheriff’s Department. However, according to
the prosecutor, for some unknown reason, the test results were not delivered to the
District Attorney before Zamarripa’s trial began. Thus, the report was never entered into
evidence at trial. Zamarripa filed a motion for new trial partially on these grounds, which
the trial court denied.
Zamarripa argues that the trial court should have granted a new trial based on the
State’s failure to deliver this report. Assuming without deciding that the State suppressed
the report and that the report is favorable to Zamarripa, Zamarripa has not demonstrated
a reasonable probability that the result of the proceeding would have been different had
the State delivered the report. See Fears, 479 S.W.3d at 327. The record never indicated,
and the State never alleged, that Zamarripa ejaculated on or in S.G. Aguirre also testified
that even if Zamarripa had ejaculated, the chance of detecting semen on or in S.G. was
effectively zero because more than ninety-six hours had passed between the date of the
offense and the SANE examination. In other words, given the testimony adduced at trial
and the lapse of time between the offense and the examination, a test result of “no semen
detected” was to be expected and would not have significantly harmed the State’s case.
Thus, there is not a reasonable probability that the result of the proceeding would have
9 been different had the State delivered the forensic report to Zamarripa as required. See
id. We overrule Zamarripa’s second issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, Zamarripa argues that he received ineffective assistance of
counsel. More specifically, he argues that there is no reasonable justification for why his
trial counsel failed to ask for a pre-trial continuance when the State failed to deliver the
forensic report to Zamarripa.
A. Applicable Law
For a claim of ineffective assistance of counsel to be sustained, an appellant must
satisfy the two-prong test set forth under Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the first prong, an appellant must show by a preponderance of the evidence
that counsel’s performance fell below an objective standard of reasonableness and
prevailing professional norms. Id.; Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). To evaluate the effectiveness of counsel’s
performance, we look at the totality of the representation. See Robertson v. State, 187
S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Any claim for ineffectiveness of counsel must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness. See
Thompson, 9 S.W.3d at 814. If the record is silent on the motivation behind counsel’s
tactical decisions, then an appellant usually cannot overcome the strong presumption that
counsel’s representation was reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.
App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).
Because “the record is generally underdeveloped,” direct appeal is usually an inadequate
10 vehicle for claims of ineffective assistance of counsel. Menefield v. State, 363 S.W.3d
591, 593 (Tex. Crim. App. 2012). Additionally, courts are hesitant to declare a counsel’s
performance as deficient until counsel has been afforded an opportunity to explain their
reasoning behind their performance. See id. For that reason, “we commonly assume a
strategic motive if any can be imagined and find counsel’s performance deficient only if
the conduct was so outrageous that no competent attorney would have engaged in it.”
Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
Under the second prong, an appellant must show that counsel’s performance
prejudiced the defense such that there was a reasonable probability that, but for counsel’s
unprofessional errors, the outcome of the trial would have been different. See Strickland,
466 U.S. at 687.
Zamarripa claims that his trial counsel was ineffective because he failed to ask for
a continuance upon the State’s failure to deliver the report. However, Zamarripa’s motion
for a new trial did not allege ineffective assistance of counsel. Thus, his trial counsel was
not given an opportunity to explain any reasoning behind his conduct. See Rylander v.
State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). We assume a strategic motive if any
can be imagined. See Andrews, 159 S.W.3d at 101.
The record reflects that Zamarripa’s counsel repeatedly sought to undermine the
State’s case by attacking the competence of the investigators concerning the processing
and tracking of the rape kit. It is possible that Zamarripa’s trial counsel did not seek a
continuance so that he could highlight and specifically attack the State’s lack of physical
evidence linking Zamarripa to the offense. See Hicks v. State, 901 S.W.2d 614, 619 (Tex.
11 App.—San Antonio 1995, pet. ref’d) (observing that in a sexual assault case failure to
pursue forensic testing “can be viewed as sound trial strategy” when the defendant wishes
to attack the State’s failure to produce physical evidence). Thus, Zamarripa fails on the
first prong. See Strickland, 466 U.S. at 687.
Furthermore, Zamarripa fails on the second prong, as well, because there is not a
reasonable probably that the result would have been different even if Zamarripa’s counsel
had sought a continuance. As discussed above, the report would have merely shown that
no semen was detected. But the State did not need to prove that Zamarripa ejaculated.
And a result of “no semen” was the expected result given the amount of time that had
elapsed between the offense and the date the kit was administered. Therefore, we
conclude that Zamarripa was unable to establish that his counsel’s performance was
deficient and that he was prejudiced due to his counsel’s failure to seek a continuance.
See Strickland, 466 U.S. at 687. We overrule his third issue.
V. ADMISSION OF EVIDENCE
In his fourth issue, Zamarripa argues that the jury was “able to view hearsay
evidence which was not admitted at trial.”
Zamarripa asserts that the jury trial exhibit record contained a three-page “Hidalgo
County Sheriff’s Department Criminal Investigation Division Detailed Report.” Zamarripa
complains that, even though this report was never admitted into evidence, the report was
accidentally placed in the jury exhibit record. According to Zamarripa, the report “offers
many details outside of the record and if the jury was able to review such document during
deliberations, then they violated their oath.” However, before the exhibit was given to the
jury, Zamarripa was given an opportunity to review the exhibit record. Upon inspecting
12 the exhibit record, Zamarripa raised no objections. See TEX. R. APP. P. 33.1; TEX. R. EVID.
103. Additionally, Zamarripa has not pointed to any information in the three-page report
that was not already before the jury through other sources. A party waives an objection
to the admission of evidence “when other such evidence was received without objection,
either before or after the complained-of ruling.” Leday v. State, 983 S.W.2d 713, 718 (Tex.
Crim. App. 1998); see Reckart v. State, 323 S.W.3d 588, 596 (Tex. App.—Corpus
Christi—Edinburg 2010, pet. ref’d). Therefore, nothing has been preserved for our review
and any alleged error is waived. See TEX. R. APP. P. 33.1; TEX. R. EVID. 103. We overrule
Zamarripa’s fourth issue.
VI. MOTION FOR MISTRIAL
In his fifth and final issue, Zamarripa argues that the trial court erred by failing to
grant a mistrial based on improper jury argument.
We review the denial of a motion for a mistrial for an abuse of discretion, meaning
that we must uphold the trial court’s ruling if it was within the zone of reasonable
disagreement. See Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007).
“Proper jury argument includes four areas: (1) summation of the evidence
presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the
opposing counsel’s argument, or (4) a plea for law enforcement.” Jackson v. State, 17
S.W.3d 664, 674 (Tex. Crim. App. 2000). The State may properly comment on a
defendant’s failure to produce evidence, as long as the remarks do not fault the defendant
for failing to testify. See id.; Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995);
Orellana v. State, 381 S.W.3d 645, 656 (Tex. App.—San Antonio 2012, pet. ref’d)
13 (observing that it does not inappropriately shift the burden of proof when the State
comments on the defendant’s failure to present favorable evidence).
When the State makes improper arguments, it is error to deny a mistrial only if the
argument is “extreme or manifestly improper.” See Brown v. State, 270 S.W.3d 564, 570
(Tex. Crim. App. 2008).
During closing arguments, the following conversation transpired:
[State]: And please—this is why I have been losing sleep in this case—please take [S.G.’s] testimony. Don’t let this man walk. What’s going to happen—ask yourself what’s going to happen if he does? Which house will he be in when he walks? Was it—will it be the house that he bought with [S.G.’s mother]? Will he be back with her?
[Zamarripa]: I’m going to object. That’s inappropriate argument, Your Honor.
[Trial Court]: Sustained.
[Zamarripa]: I’m going to ask the Court to instruct the jury to disregard those statements from the prosecutor.
[Trial Court]: All right. Disregard the remarks from the prosecutor.
[Zamarripa]: And I’m moving for a mistrial, Judge.
[Trial Court]: Denied.
We presume that jurors follow the trial court’s instructions as presented. See Thrift
v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). The trial court sustained
Zamarripa’s objections and instructed the jury to disregard the prosecutor’s statements.
Zamarripa has failed to overcome the presumption that the trial court’s instructions cured
any potential error. See id. Additionally, this is not one of those rare cases where the
State’s remarks were so manifestly improper as to indicate that they were “calculated to
14 injuriously affect the rights of the [accused].” Hawkins v. State, 135 S.W.3d 72, 81 (Tex.
Crim. App. 2004) (en banc). We conclude that the State’s comments to the jury were not
extremely or manifestly improper. See Brown, 270 S.W.3d at 570. Therefore, the trial
court did not abuse its discretion by denying Zamarripa’s motion for mistrial. See Archie,
221 S.W.3d at 699–700. We overrule Zamarripa’s fifth issue.
VII. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 3rd day of December, 2020.