Juan Jose Zarate Sanchez v. the State of Texas

NUMBER 13-24-00321-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JUAN JOSE ZARATE SANCHEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 377TH DISTRICT COURT
OF VICTORIA COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Cron
Memorandum Opinion by Justice Silva

A jury found appellant Juan Jose Zarate Sanchez guilty of possession with intent

to deliver a controlled substance in the amount of four grams or more but less than two

hundred grams, a first-degree felony with an enhanced range of punishment by his repeat

felony offender status. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d); see also
TEX. PENAL CODE ANN. § 12.42(c)(1). At punishment, the jury found appellant to be a

repeat felony offender after appellant pleaded true to the State’s enhancement allegation

and sentenced him to thirty-five years’ confinement in the Texas Department of Criminal

Justice Correctional Institutional Division. See id. Appellant argues (1) he received

ineffective assistance of counsel, and (2) the State committed prosecutorial misconduct.

We affirm.

I. BACKGROUND

On July 6, 2023, dispatch received an anonymous call that there were subjects

driving a gold or tan Toyota Solara possibly selling drugs in an apartment complex.

Victoria Police Department (VPD) Officer Joshua Homan responded to the call and

located an unoccupied vehicle matching the description. Officer Homan testified that he

ran the license plate, and the registration was expired. He was advised that the Victoria

County Special Crimes Unit (SCU) was in the area observing the vehicle. Officer Homan

testified he was advised to leave and “stage in the area” until the vehicle departed. Shortly

thereafter, he followed the vehicle and conducted a traffic stop due to the expired

registration. As Officer Homan approached the vehicle, he could smell a strong odor of

marijuana. Appellant was identified as the driver and owner of the vehicle. Appellant

provided Officer Homan an expired driver’s license and advised he did not have proof of

insurance. Officer Homan identified the front seat passenger as Veronica Elliott and rear

passenger as Hector Villarreal. SCU arrived to assist and ordered the occupants out of

the vehicle for officer safety. Officer Homan testified that SCU searched the vehicle, and

he conducted a secondary search of the vehicle. Officers located a cigarette box on the

driver’s side that contained “a small brown, almost tar-like substance . . . believed to be

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heroin.” Officer Homan testified that he located “a small scale hidden underneath the

carpet of the trunk” of the vehicle. He further testified that based on his training and

experience the small scale was “indicative of selling narcotics” and “common in the drug

industry.”

SCU Detective Timothy Ramirez testified that he was conducting a “proactive

narcotics investigation[]” in a known “high drug and crime area.” He further testified that

SCU “conduct[s] pretextual stops and attempt to locate drug dealers and users.” On July

6, 2023, he assisted VPD Officers Homan and Ryan Ramos during the traffic stop.

Detective Ramirez testified that when he approached the vehicle the odor of marijuana

was noticeable. He requested that the occupants be removed from the vehicle. Detective

Ramirez searched the vehicle and found the following items: a cigarette box with “a hit of

heroin,” tetrahydrocannabinol (THC) cartridges, marijuana, synthetic marijuana, a

marijuana blunt, prepackaged heroin, and a scale. Detected Ramirez confirmed the

prepackaged heroin was in fact heroin after he conducted a field test. He also testified

that “in street drug sales, a dealer typically has multiple drugs . . . to facilitate the need of

street sales.” Based on his training and experience, the packaging of the heroin was

“indicative of distribution and dealing.” Subsequently, appellant, Elliott, and Villarreal were

arrested.

Officer Ramos testified that he was conducting patrol when he received a call from

dispatch about “possible drug activity.” He was informed that SCU was staged at an

apartment complex and waited for further instruction. Officer Ramos then followed Officer

Homan as he conducted the traffic stop and made contact with the occupants on the

passenger side of the vehicle. Officer Ramos testified that he observed the occupants to

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be “a little nervous” and smelled marijuana. Officer Ramos stated that they “conduct[ed]

a probable cause search of the vehicle.” He testified that officers found heroin in the

vehicle. Officer Ramos stated that he does not often “see heroin on the streets of Victoria.”

He explained that based on his training and experience “anything roughly over [three] to

[four] grams . . . is indicative of manufacture/delivery.”

On July 27, 2023, appellant, while he was detained, executed an unsworn

declaration declaring under penalty of perjury that Elliott and Villarreal “had no prior

knowledge [of] the drugs in the car.” See TEX. CIV. PRAC & REM. CODE ANN. § 132.001. He

also addressed a letter to the Victoria County District Attorney informing her that “[he] told

[Villarreal] to stash the drugs and the pipe [he] handed him” during the traffic stop.

Appellant further stated that “[he] take[s] complete responsibility for the drugs found in the

car.”

Subsequently, appellant was indicted for “knowingly possess[ing], with intent to

deliver, a controlled substance, namely heroin, in an amount of four grams or more but

less than 200 grams.” See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). He pleaded

not guilty and proceeded to trial where he was found guilty by a jury. During punishment,

appellant voluntarily stipulated to his prior felony conviction making him a repeat felony

offender, and he was sentenced to thirty-five years’ confinement. This appeal followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant argues that his trial counsel’s performance was constitutionally defective

because he “fail[ed] to object to the multiple improper commitment questions” asked by

the State during voir dire.

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A. Standard of Review and Applicable Law

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST.

amend. VI. “An appellate court looks 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. 1999) (citing Ex parte Felton, 815 S.W.2d 733,

735 (Tex. Crim. App. 1991)). “[A] person claiming ineffective assistance of counsel must

show that (1) counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense.” Ex parte Covarrubias, 665 S.W.3d 605, 609 (Tex. Crim. App.

2023) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To satisfy the first prong, deficiency is established by “showing that counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms, considering the facts of the case viewed from counsel’s perspective

at the time of the representation.” Ex parte Garza, 620 S.W.3d 801, 808–09 (Tex. Crim.

App. 2021). The Texas Court of Criminal Appeals has routinely held that “claims of

ineffective assistance of counsel are generally not successful on direct appeal and are

more appropriately urged in a hearing on an application for a writ of habeas corpus.”

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). “On direct appeal, the record

is usually inadequately developed and ‘cannot adequately reflect the failings of trial

counsel’ for an appellate court ‘to fairly evaluate the merits of such a serious allegation.’”

Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). In the absence of

an explanation in the record for why counsel’s conduct allegedly fell below this objective

standard, we will “assume a strategic motivation if any can possibly be imagined” and not

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conclude that the challenged conduct constituted deficient performance unless the

conduct was “so outrageous that no competent attorney would have engaged in it.” Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Ex parte Westerman, 570

S.W.3d 731, 731 n.1 (Tex. Crim. App. 2019).

The appellant bears the burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson, 9 S.W.3d at 813; Perez v. State, 689 S.W.3d

369, 381 (Tex. App.—Corpus Christi–Edinburg 2024, no pet.). We employ a strong

presumption that counsel’s conduct fell within the wide range of reasonable, professional

assistance and that it was motivated by a sound trial strategy. Strickland, 466 U.S. at 689;

Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). The presumption of a sound

trial strategy generally cannot be overcome absent evidence in the record of the attorney’s

reasons for his conduct. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007) (“The

lack of a clear record usually will prevent the appellant from meeting the first part of the

Strickland test.”); Davis v. State, 533 S.W.3d 498, 510 (Tex. App.—Corpus Christi–

Edinburg 2017, pet. ref’d). If there is any basis for concluding that counsel’s conduct was

strategic, then further inquiry is improper. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

App. 2011). We consider “the reasonableness of counsel’s actions at the time, rather than

viewing such actions through the benefit of hindsight.” Hart, 667 S.W.3d at 782.

To establish prejudice under the second prong, the appellant must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to

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consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

Accordingly, failure to make a showing under either Strickland prong defeats a claim for

ineffective assistance. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (citing

Thompson, 9 S.W.3d at 813).

B. Analysis

Appellant complains that his trial counsel “was ineffective by failing to object to the

multiple improper commitment questions” allegedly asked by the State during voir dire

and that his trial counsel “withheld its objections . . . with no possible sound trial strategy.”

Commitment questions are impermissible unless the law requires a commitment.

Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011). A commitment question is

one that commits a prospective juror to resolve or refrain from resolving an issue a certain

way after learning a particular fact. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim.

App. 2001). Commitment questions often require a “yes” or “no” answer that commits the

juror to resolve an issue in a particular way. Id. However, open-ended questions may also

be commitment questions if they prompt a prospective juror to set hypothetical decision-

making parameters. Id. at 180.

When the law requires a certain type of commitment from jurors, the attorneys may

ask the prospective jurors whether they can follow the law in that regard. Id. at 181. For

a commitment question to be proper, one of the possible answers must give rise to a valid

challenge for cause. Id. at 182. However, an otherwise proper commitment question may

nevertheless be improper if it includes facts in addition to those necessary to establish a

challenge for cause. Id.

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Improper commitment questions are considered harmful when they result in the

trial of a defendant by a juror who prejudged him or some aspect of his case before

hearing any evidence. Sanchez v. State, 165 S.W.3d 707, 714 (Tex. Crim. App. 2005).

Factors to consider in determining such harm include, but are not limited to:

(1) whether the questions were unambiguously improper and attempted to
commit one or more venireme[mbers] to a specific verdict or course of
action;

(2) how many, if any, venireme[mbers] agreed to commit themselves to a
specific verdict or course of action if the State produced certain
evidence;

(3) whether the venireme[mbers] who agreed to commit themselves
actually served on the jury;

(4) whether the defendant used peremptory challenges to eliminate any or
all of those venireme[mbers] who had committed themselves;

(5) whether the defendant exhausted all of his peremptory challenges upon
those venireme[mbers] and requested additional peremptory challenges
to compensate for their use on improperly committed venireme[mbers];

(6) whether the defendant timely asserted that a named objectionable
venirem[ember] actually served on the jury because he had to waste
strikes on the improperly committed jurors; and

(7) whether there is a reasonable likelihood that the jury’s verdict or course
of action in reaching a verdict or sentence was substantially affected by
the State’s improper commitment questioning during voir dire.

Id. In his brief, appellant complains that his trial counsel was deficient for failing to object

to over thirty questions that the State posed to five veniremembers during voir dire,

including veniremember numbers 2, 3, 6, 10, and 26. 1 In regard to these questions,

appellant argues that each was “a commitment question, improper under

1 The complained-of questions span about ten pages of the reporter’s record.

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[Standefer,] . . .[w]hen the law does not require the commitment,” and provides no other

analysis.

Even if we assume error, appellant has not proven he suffered prejudice.

Strickland, 466 U.S. at 694. With respect to the veniremembers who were asked the

complained-of questions, the record is clear that none of them agreed to commit

themselves to a specific verdict or course of action if the State produced certain evidence.

See Sanchez, 165 S.W.3d at 714. Furthermore, none of the veniremembers that were

posed the complained-of questions were selected as jurors. See id. The parties both

agreed to strike five veniremembers for cause, including veniremember number 2, and

both parties exercised ten preemptory strikes. The record indicates that the State

exercised three of its preemptory strikes for veniremember numbers 3, 10, and 26; and

that appellant exercised one preemptory strike for veniremember number 6. In other

words, appellant did not exhaust “all of his preemptory strikes upon” veniremembers who

were asked the complained-of questions. Id. Moreover, appellant did not request

additional preemptory strikes to “compensate for their use on improperly committed

venireme[mbers].” Id. Appellant does not argue that his attorney was deficient in failing to

request additional preemptory strikes, but even assuming it was, appellant has failed to

show a reasonable likelihood that the use of additional preemptory strikes would have

resulted in a different outcome. See id. Appellant also did not timely assert that any named

objectionable veniremember “actually serve[d] on the jury because he had to waste

strikes on [any] improperly committed jurors.” 2 Id. We conclude that the record does not

2 After the trial court announced the veniremembers who were selected as jurors, the trial court

asked the parties, “Is there a juror who has made the panel that was struck by either side,” and both parties
responded no.

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support a finding that any juror participated in appellant’s trial “who prejudged him or some

aspect of his case before hearing any evidence.” Id. Accordingly, appellant has not shown

a reasonable probability that, but for his trial counsel’s unprofessional errors, the result of

the proceeding would have been different. See Strickland, 466 U.S. at 694; Perez, 310

S.W.3d at 893; Williams, 301 S.W.3d at 687. Appellant’s first issue is overruled.

III. PROSECUTORIAL MISCONDUCT

Appellant next argues that the State committed prosecutorial misconduct when

they “offered [his] letter and unsworn declaration where he admitted to possessing the

[heroin] in the vehicle.”

Appellant points us to no relevant case law applicable to the facts of this case and

does not provide pertinent legal authority related to the issue. 3 See TEX. R. APP. P. 38.1(i)

(stating that appellant’s brief must “contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”); Lopez v.

State, 672 S.W.3d 915, 928 (Tex. App.—Corpus Christi–Edinburg 2023, pet. ref’d)

(holding that appellant’s issue was waived through failure to provide citations to the record

and to pertinent legal authority). “[A]n appellate court has no ‘obligation to construct and

compose [an] appellant’s issues, facts, and arguments with appropriate citations to

authorities and to the record.’” Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017)

(quoting Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)). We conclude

3 In his brief, appellant cites to one case to support his claim. The case supports the general

proposition that both the unknowing and “knowing use of perjured testimony is a trial error which garners a
harmless error analysis” by the reviewing court. Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App.
2009). Accordingly, the “applicant has the burden to prove by a preponderance of the evidence that the
error contributed to his conviction or punishment.” Ex parte Fierro, 934 S.W.2d 370, 375 (Tex. Crim. App.
1996). Appellant provides us with nothing further than to direct us to “[s]ee the application of the law to the
facts in issue number one.”

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appellant has waived this issue through inadequate briefing. See TEX. R. APP. P. 38.1(i). 4

Appellant’s second issue is overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA
Justice

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

Delivered and filed on the
21st day of August, 2025.

4 TEX. R. APP. P. 47.1. (“The court of appeals must hand down a written opinion that is as brief as

practicable but that addresses every issue raised and necessary to final disposition of the appeal”).

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