Case Number: 04-17-00522-CR

Judge: Rebeca C. Martinez

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: Andrew Warthen and Nicholas LaHood

Defendant's Attorney: Richard Dulany

Description: Delatorre was indicted for the murder of Matthew Winkelman and proceeded to a jury trial
on July 10, 2017. Delatorre’s defense was that he was defending himself when he fired at
Winkelman. The testimony concerning what happened the day Winkelman was shot is
summarized below.
Carl Matthews, Winkelman’s neighbor at the apartment complex, testified that on February
12, 2015, he observed Winkelman and Delatorre having an argument outside near the parking lot.
According to Matthews, Winkelman was yelling obscenities at Delatorre and threatening him to
fight. Delatorre was “talking” back to Winkelman. As Matthews walked past the two guys,
Delatorre showed him a gun and told Matthews to keep walking, which he did. Minutes later,
Matthews heard three gunshots. He then saw Winkelman on the ground with multiple gunshot
wounds. Matthews testified that during the argument he never saw Winkelman touch Delatorre or
reach for a weapon.
Leslie Arriaga also testified at trial. She stated that, at the time, she and Delatorre had been
in a romantic relationship for about one year. On the day of the shooting, they were visiting some
individuals at the apartment complex where Winkelman lived. As Arriaga was walking down the
apartment complex stairs, Winkelman attempted to grab her arm and pull her into his apartment.
Arriaga testified that Winkelman was drunk and, in her opinion, it seemed like Winkelman thought
she was someone he knew. Winkelman let Arriaga go after she called out for Delatorre’s help.
After escorting Arriaga back to the car, Delatorre and another individual, Rodney Walker, walked
toward where Winkelman was standing. Sometime later, Arriaga heard gunshots. Although she
did not see the shooting, Arriaga testified that she believed Delatorre was the one who shot
Winkelman. Arriaga knew Delatorre had a gun with him. On cross examination, Arriaga testified
that Winkelman did not follow them to the car following the grabbing incident and that all three
of them could have safely driven away without anybody getting shot.
Rodney Walker testified that he was at a house across the street from the apartment
complex when he heard Arriaga call for help. Walker crossed the street and met Arriaga and
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Delatorre at his car, which was parked at Winkelman’s apartment complex. Walker estimated that
Winkelman was standing about four or five parking spaces away and was yelling obscenities at
them. Walker stated that Delatorre pulled out a gun, walked toward Winkelman, and shot him
multiple times.
At the conclusion of the evidence, the jury received a self-defense instruction, but rejected
it and found Delatorre guilty of murder as charged in the indictment. Delatorre testified during
the punishment phase. Delatorre stated that Winkelman was yelling at him and coming toward
him when he saw Winkelman “crouching down with his hand behind his back.” Delatorre testified
that he felt scared because he thought Winkelman was reaching for a gun behind his back, so
Delatorre pulled out his gun and shot Winkelman. Delatorre stated he did not remember the
grabbing incident between Winkelman and Arriaga. The trial court’s punishment charge was
prepared and read to the jury without objection. Upon the jury’s recommendation, the trial court
sentenced Delatorre to fifty-years’ imprisonment.
INEFFECTIVE ASSISTANCE OF COUNSEL In a single issue, Delatorre claims his trial counsel rendered ineffective assistance of
counsel by failing to request a jury instruction on sudden passion during the punishment phase of
trial.
To succeed on a claim of ineffective assistance of counsel, the appellant must show: (1) his
counsel’s performance was deficient, i.e., the attorney’s performance fell below an objective
standard of reasonableness; and (2) the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, “the [appellant] must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). Failure
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to make the required showing of either deficient performance or prejudice defeats an appellant’s
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
When evaluating a claim of ineffective assistance, we apply a strong presumption that
counsel’s conduct was within the range of reasonable professional assistance and was motivated
by sound trial strategy. Strickland, 466 U.S. at 689; Johnson v. State, 233 S.W.3d 109, 116 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). To rebut this presumption, “any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 814. A record that is silent as
to the reasoning behind counsel’s actions will not overcome the presumption because “a finding
that counsel was ineffective would require impermissible speculation by the appellate court.”
Johnson, 233 S.W.3d at 116. “In the absence of evidence of counsel’s reasons for the challenged
conduct, an appellate court … will not conclude 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).
Here, because Delatorre did not file a motion for new trial complaining of counsel’s alleged
deficiency, there was no corresponding hearing at which counsel’s strategy or lack of strategy
could be developed; thus, the record is silent regarding the reason counsel did not request a sudden
passion instruction during the punishment phase of trial. See Bone v. State, 77 S.W.3d 828, 833
(Tex. Crim. App. 2002) (“[T]he record on direct appeal will not be sufficient to show that counsel’s
representation was so deficient . . . as to overcome the presumption that counsel’s conduct was
reasonable and professional.”). Therefore, we will presume the challenged conduct fell within the
range of reasonable professional assistance and was not deficient, unless after reviewing the
record, we determine that counsel’s “conduct was so outrageous that no competent attorney would
have engaged in it.” See Garcia, 57 S.W.3d at 440.
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As noted, the jury rejected Delatorre’s self-defense claim during the guilt-innocence phase
of trial. Although sudden passion and self-defense are not mutually exclusive, “when the State’s
evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the
absence of sudden passion,” except in rare circumstances. Chavez v. State, 6 S.W.3d 56, 65 (Tex.
App.—San Antonio 1999, pet. ref’d) (internal quotation marks omitted). Given the jury’s rejection
of Delatorre’s self-defense claim based on the evidence before it, we cannot reasonably conclude
that counsel’s failure to request a sudden passion instruction at punishment was so outrageous that
no competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440; see also Wooten
v. State, 400 S.W.3d 601, 609 (Tex. Crim. App. 2013) (“It is highly unlikely that a jury that had
already rejected the appellant’s claim [of self-defense] . . . would nevertheless find in his favor on
the issue of sudden passion.”). By failing to rebut the presumption that his counsel’s conduct was
motivated by sound trial strategy and fell within the range of reasonable professional performance,
Delatorre has failed to prove deficient performance under the first Strickland prong. See
Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Johnson, 233 S.W.3d at 116.

Outcome: Based on the foregoing reasons, we overrule Delatorre’s sole issue on appeal and affirm the trial court’s judgment.

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