Rusty Lane Zipprian v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00239-CR
__________________

RUSTY LANE ZIPPRIAN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 22-370522
__________________________________________________________________

MEMORANDUM OPINION

Rusty Lane Zipprian appeals from his conviction for the misdemeanor offense

of assault causing bodily injury – family violence, against his wife, “Diane.”1 See

Tex. Penal Code Ann. § 22.01(a)(1). The information alleged that Zipprian

“intentionally, knowingly, or recklessly cause[d] bodily injury to [Diane] . . . by

1
We refer to the victim by a pseudonym. See Tex. Const. art. I, § 30(a)(1)
(granting crime victims “the right to be treated with fairness and with respect for the
victim’s dignity and privacy throughout the criminal justice process”).
1
striking, grabbing, and pushing [Diane] with [Zipprian]’s hands[]” and that Diane is

a member of Zipprian’s family or household or a person with whom he has or has

had a dating relationship. The jury found Zipprian guilty as charged. Based on an

agreement Zipprian entered into with the State, the trial court assessed punishment

at one year in county jail, suspended imposition of the sentence, placed Zipprian on

community supervision for a year, and assessed a $500 fine. Zipprian timely

appealed raising two issues. We affirm the trial court’s judgment as reformed.

Evidence at Trial

Diane’s Testimony

Diane testified that on July 30, 2022, she had an altercation with Zipprian, to

whom she had been married for approximately six months. Diane identified the

defendant at trial as Zipprian. Diane recalled that on July 30th, she, Zipprian, her

six-year-old niece, and her four-year-old nephew attended Diane’s friend’s

daughter’s birthday party at a house in Porter, Texas. According to Diane, she drank

“[m]argarita wine” from a 20-ounce tumbler until the other party guests arrived and

then she drank water.

Diane recalled that after a couple of hours at the party, Zipprian got the truck

keys from her purse, went to the truck, and honked the horn continuously to get

Diane outside. She went outside, and he told her, “Let’s go.” Diane testified that they

left to go to their home, and Zipprian drove, with Diane in the passenger seat and

2
her niece and nephew in the back seat. According to Diane, Zipprian was visibly

upset and he told her that he did not like her friends.

Diane testified that on the way home, she told Zipprian she wanted a

separation, and he got upset and said he would move out and find an apartment. She

recalled that on the way home, she and Zipprian were “bickering[,]” and he became

aggressive. She testified that in the area of their neighborhood, he steered the truck

towards a dog in the oncoming lane, it appeared to her that he was driving

intentionally toward the dog, she told him not to hit the dog, and she grabbed the

steering wheel with her left hand and jerked the truck to the correct side of the road

to avoid the dog. Zipprian reacted by grabbing her arm, she jerked her arm away,

and he squeezed her arm with his fingernails cutting into her forearm. She testified

that he was squeezing her arm for a couple of minutes, and she felt pain.

Diane recalled that once they got home, she knew the argument was not over,

and she told her niece and nephew to go to the back bedroom. Diane and Zipprian

bumped shoulders passing in the hallway of the house, and the confrontation started

again with Zipprian yelling that he did not like her friends. According to Diane,

Zipprian said he was going to pack his belongings and leave, they started shoving

each other, and the altercation continued in the kitchen. Diane recalled that he shoved

her against the refrigerator, and she fell to the ground. At that point, he climbed on

top of her, put his hands around her neck, and said that he would kill her. She felt

3
scared and tried to fight him off by punching and scratching at him “anywhere and

everywhere.” She recalled that she was wearing her wedding band at the time and

that her ring could have caused scratches or marks anywhere on Zipprian’s face and

arms because she “was grabbing at everything trying to get him off of [her].”

Once Zipprian got off of Diane, he went to the bedroom and Diane called 9-

1-1. A recording of Diane’s 9-1-1 call was admitted into evidence and played for the

jury. Diane recalled that while she was on the 9-1-1 call, she was in the living room

with her niece and nephew, and Zipprian knew she had called 9-1-1. According to

Diane, Zipprian took one of his guns with him, got into his vehicle to leave, and once

Diane provided the 9-1-1 operator with that vehicle’s license plate, Zipprian

switched vehicles and left in the other vehicle. Diane recalled that she told the 9-1-

1 dispatcher that she fought back, punched and scratched Zipprian, and did

everything she could to get him off of her. Diane testified that Zipprian’s sister lived

thirty minutes away, was not nearby the day of the altercation, and had no personal

knowledge regarding the altercation.

Montgomery County Sheriff’s Office deputies arrived, Diane reported what

happened, and they took photographs of Diane. Zipprian did not return to the scene

to meet with the deputies. The photographs taken of Diane at the scene were admitted

into evidence and published to the jury. Diane testified that one of the photographs

showed redness on her neck caused by Zipprian placing his hands around her neck,

4
another photograph showed her hands and injuries to her left hand middle finger

caused by the altercation, another photograph showed a scratch on her thumb caused

by Zipprian, and another photograph depicted the marks on her arm “[f]rom his nails

digging into [her] arm.” According to Diane, she was able to photograph her injuries

from the altercation when the injuries were more visible two days later. Those

photographs were also admitted into evidence and published to the jury. She testified

that the photographs showed bruising from Zipprian shoving her against the

refrigerator and marks and scratches from the altercation, including scratches on her

chest and marks near her knee. She explained that they had outside surveillance

cameras at the house, but the cameras did not capture any of the altercation because

they did not cover the entire yard, and the altercation mostly took place in the truck

and inside the house. Diane agreed that if she had attacked Zipprian he would have

been entitled to defend himself.

Diane denied using the altercation as leverage in their divorce proceedings,

and she testified that the divorce would not involve custody issues because they did

not have children together and would not involve community property issues

because they only owned separate property. She filed for divorce about a month after

the altercation and around the same time that she provided the photograph of her

injuries to the district attorney’s office.

5
On cross-examination, Diane agreed that during the party Zipprian had

informed her that his stepmother’s electricity had gone out and that the breaker was

switched back and that “it was okay” and “not a matter that he needed to fix today.”

According to Diane, Zipprian did not want to be at the party that day. She agreed

that jerking the steering wheel of a car that someone is driving is unsafe, and that

she punched Zipprian in the face after he grabbed her arm in the truck. She

acknowledged that her report of what had happened was more detailed in the 9-1-1

call, but she disagreed that Zipprian was trying to leave the house when the

altercation occurred. She agreed that she did not tell the responding officers that she

punched, scratched, and bit Zipprian, and even though she told the officers where

she thought Zipprian was going, she did not give the officers Zipprian’s phone

number for them to contact him. She also agreed that when she was on the phone

with 9-1-1 dispatch, Zipprian put the gun in his car and walked back to the house

and she locked him out. According to Diane, she was angry that day and wanted

Zipprian to leave, and she had contacted a lawyer prior to this incident because she

had planned to file for divorce.

Testimony of Deputy Lizbeth Rodriguez

Deputy Lizbeth Rodriguez with the Montgomery County Sheriff’s Office

testified that she responded to the scene around 6 p.m. in response to a “family

violence in progress” at 5:17 p.m. Deputy Rodriguez spoke with Diane outside, who

6
was “very shaken up.” Diane did not appear to be exhibiting signs of intoxication.

Deputy Rodriguez testified that through her investigation she learned that the assault

took place in the vehicle and in the house. Rodriguez recalled that she observed a

scratch mark on Diane’s left arm above her wrist and that Diane was complaining of

pain on her right thumb. Diane reported that her husband, Zipprian, had caused her

injuries. Deputy Rodriguez photographed the scene and attempted to follow up with

Zipprian at a location where Diane thought he might be. Rodriguez testified that

Zipprian was not at that location, and that when Zipprian contacted dispatch,

Rodriguez was on another call and Zipprian met with a different deputy. Deputy

Rodriguez recalled that she went to meet with him again on August 4th, she knocked

and yelled out his name, she saw someone that appeared to be Zipprian inside, but

no one answered the door. After her initial investigation and attempts to follow-up

with Zipprian, as well as her review of a statement he provided to another deputy,

Deputy Rodriguez filed an affidavit for a warrant for his arrest for assault family

violence, which the judge signed. Rodriguez testified that she stood by her

investigation and decision to file the warrant affidavit.

On cross-examination, Deputy Rodriguez agreed that she had noted in her

report that the incident was alcohol related, and that Diane had mentioned that she

and Zipprian had been at a party drinking. Deputy Rodriguez testified that she got

Zipprian’s phone number and a possible location for him from Diane, but that

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Rodriguez did not indicate in the offense report that Diane had provided Zipprian’s

phone number, and Rodriguez could not recall if she called Zipprian or not.

Rodriguez agreed that based on only evidence and facts she observed from Diane

that she determined that Zipprian was the primary aggressor. Rodriguez agreed that

it is important to get both sides of the story before requesting charges be filed, but

that she made the decision to request charges be filed against Zipprian without

calling him. Rodriguez acknowledged that she did not look or ask for video

surveillance from the scene and agreed that if there was video surveillance that it

could help her determine what had occurred. According to Deputy Rodriguez, at

some point Zipprian contacted dispatch wanting to come in and make a statement,

but Rodriguez was not there when he voluntarily made the statement. Rodriguez

testified that photographs were taken of Zipprian’s injuries.

Testimony of Deputy Paris Ponton

Deputy Paris Ponton with the Montgomery County Sheriff’s Office testified

she was on duty on the night of July 30, 2022, when Zipprian came to the station.

Zipprian stated he was there to give a statement, and based on the location of the

incident, Deputy Ponton was able to confirm with dispatch that Deputy Rodriguez

was the responding deputy. Deputy Ponton was unable to contact Deputy Rodriguez,

so Ponton accepted Zipprian’s statement he had already written on the laptop he

brought in, and she photographed his injuries. The photographs of his injuries were

8
admitted into evidence and published to the jury. Ponton testified that the

photographs depict an injury above Zipprian’s right eye and to the side of and below

his right eye, and a small laceration on his right index finger. Deputy Ponton testified

that it was not her intention to do any type of investigation into what happened but

that she just added a supplement to the investigation stating that she had taken the

photographs and accepted Zipprian’s previously-written statement. According to

Deputy Ponton, Zipprian was cooperative. Deputy Ponton agreed that if the incident

was reported at 5 p.m. and Zipprian came in to give his statement around 8:30 or 9

p.m., that it was reasonable to determine that he had about a three-or-four-hour span

to come up with his story about self-defense.

Zipprian’s Testimony

Zipprian testified that he and Diane were married on November 20, 2021, and

that they were in the process of a divorce. Zipprian testified that the house where he

and Diane lived was her house since 2019, but that he had invested money in it.

According to Zipprian, on July 30, 2022, he agreed to go to a birthday party,

Diane drove them in the truck, and they arrived at the party twenty miles away at

around 11:15 a.m. Zipprian recalled Diane drinking margaritas out of a tumbler at

the party while she played cards for around an hour and a half, and he sat on the

couch alone and Diane’s niece and nephew were playing outside. He testified that

Diane drank a little less than half of a bottle of the “margarita wine” she brought

9
from home, the bottle “looked like a fifth of Jack Daniels,” and at times she drank

straight from the bottle.

Zipprian testified that after Diane finished playing cards they went out on the

front porch and she encouraged him to drink, which he did not want to because he

was not a big drinker, and to play cornhole, which he did not want to because he was

tired and did not want to be in the sun. While people were playing cornhole and

drinking, Zipprian drank some of his beer because Daine pressured him to, and she

continued to drink “margarita mix[.]” Zipprian recalled that a strong storm rolled in,

and while it stormed, the kids opened presents until around 4 p.m. when the party

was winding down. Zipprian testified that he received a call from his father’s widow,

and Zipprian told Diane that his father’s widow had lost power at her house and that

they needed to go there and fix it. According to Zipprian, they started packing up,

he put some things in the back of the vehicle, and he got in the driver’s seat of her

unlocked truck because he was not going to let her drive because of how much

alcohol she had consumed.

Zipprian did not have a key to the truck, so he stayed in the hot truck for about

a minute and a half, and he honked the horn while Diane and her friend were talking

on the front porch, which upset Diane. Diane and the two children got into the truck.

Zipprian recalled that about six minutes from home, a dog was in the middle of the

roadway along with oncoming cars in the distance, so he wanted to get close to the

10
dog, hit the brakes, and slam on the horn so that the dog would run away and avoid

being hit by any of the vehicles and that Zipprian could still have time to get back

over and avoid the oncoming traffic. According to Zipprian, as he started to scare

the dog off the road, Diane reached for the steering wheel with both hands and jerked

it to the left towards the oncoming vehicles. He testified that he slowed the truck,

jerked her wrist up, regained control of the vehicle, and told her never to do that

again. Zipprian recalled that Diane slapped his glasses off which scratched his face.

He testified that she grabbed the steering wheel again and jerked back to the left into

the oncoming lane. He again swept her hand off the steering wheel, slammed on the

brakes, and Diane began hitting him in the face. He grabbed her hand and squeezed

her knuckles, injuring her thumb.

Once home, Zipprian tried to hide Diane’s keys inside, got a drink from the

pantry, and intended to leave the house to go to his father’s widow’s house to work

on the electricity. According to Zipprian, as Diane approached him at a narrow part

of the house, she “thr[ew] her shoulder” into his, spun around, and punched him in

the back of his head. He recalled he instantly responded by throwing her at the

refrigerator and told her “Don’t ever do that again, I can kill you by doing that[,]”

which he explained meant that an automatic response can kill someone even if there

is no intent to hurt someone. He testified that when he tried to leave the house, she

grabbed his shirt and dragged him back into the kitchen, threw him into the kitchen

11
and against the pantry door, and hit him repeatedly. He recalled grabbing her left

arm, which is what he believed caused her injuries to her arm, slapped her in the

back of the head, and then “[s]he settled down quite a bit[.]” He testified that on his

third attempt at leaving, she grabbed him, raised her leg and “kneed” his right inner

thigh, slipped because she had socks on, and fell while also pulling him to the

ground. He recalled her kicking him a second time. He “slammed” the water bottle

he had taken earlier from the pantry against her leg. According to Zipprian, he tried

to leave a fourth time and Diane started punching him, and he used a self-defense

technique applying pressure to a spot to subdue her, she grabbed his wrist, and he

spun her around and told her, “You can’t do anything, you might as well [] settle

down.” He recalled that she raised her leg and almost kicked a hole in the kitchen

cabinet, he forced her to the ground, then immobilized her by putting his legs on

both sides of her ribs, and the children were watching. He testified that she screamed,

“[H]e’s beating me[,]” and he told her, “no one is beating you.” Diane yelled for her

niece to call 9-1-1 and Zipprian told the niece that he and Diane were just wrestling.

He recalled that he went to remove his father’s revolver from the house so Diane

could not sell it, but he could not find it, and he instead retrieved another one of his

guns because a month and a half earlier Diane had been suicidal. He left with the

gun, a water bottle, and his backpack. He put the belongings in the truck, went to get

the rest of his guns from the house, saw Diane inside reading the license plate of the

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truck, assumed she had locked the door to the house, contemplated what to do, and

then moved his belongings to his car and left. He then called his sister. He testified

that later that night he wrote his statement, took photographs of his injuries as

suggested by his sister, sent the photographs to his sister, and then met with his sister.

The photographs of his injuries were admitted into evidence and published to the

jury. He testified that one of the photographs depicts his injured right index finger,

where his hand hit Diane’s tooth in the vehicle, and she bit his hand, and another

photograph showed swelling in his cheek area from where she hit him. He recalled

that one of the other photographs that was taken on a later day showed he had

bruising under his eye. He testified that the injuries to his right eye and to the right

of his mouth depicted in the photographs were caused by Diane.

According to Zipprian, he did not intend to hurt Diane, he did not initiate any

of the multiple entanglements with her that day, and he only tried to “diffuse the

situation with discomfort[]” and get away from her. He testified that when he gave

his statement to the police that he did not want Diane charged with assault, she was

“not in her right mind” and had been drinking at the time of the incident, and at that

time he still was in love with Diane. On cross-examination, Zipprian agreed that he

knew what he was doing on the day of the incident, he had only consumed “maybe

a quarter” of his beer the entire day, and that he caused bodily injury to Diane that

day but “not on purpose[.]”

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Testimony of Zipprian’s Sister

Zipprian’s sister testified that Zipprian called her between 5:15 and 5:30 p.m.

on July 30, 2022, and he told her what had happened but did not express concern

that he had done anything wrong. She saw him later that day and observed that he

had scratches and a black eye.

Sufficiency of the Evidence

In his first issue, Zipprian challenges the sufficiency of the evidence

supporting the jury’s implicit finding that Zipprian did not act in self-defense and

supporting the jury’s verdict. According to Zipprian, Diane’s testimony implies that

she and Zipprian engaged in “mutual physical aggression[,]” their testimony

“differ[s] regarding the extent and manner of physical contact made[,]” and “the

evidence establishes that [Diane] was initiating the assaultive behavior and made no

attempt to abandon her attack.” Zipprian argues that, viewing the evidence in the

light most favorable to the verdict, the evidence is insufficient to support the jury’s

implicit finding that he did not act in self-defense.

It is the defendant’s burden to produce some evidence to support a claim of

self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Upon

producing such evidence, the State has the burden of persuasion to disprove the

defense. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). The State

is not required to produce evidence to refute the claim but is required to prove its

14
case beyond a reasonable doubt. Id. at 913. The issue of self-defense is a fact issue

to be determined by the jury, which is free to accept or reject the defensive issue. Id.

at 913-14. A jury’s verdict of guilt is an implicit finding rejecting a defendant’s self-

defense theory. Id. at 914.

We review all of the evidence in the light most favorable to the verdict to

determine if a rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Because the State

carries the burden of persuasion to disprove self-defense beyond a reasonable doubt,

we review a challenge to the sufficiency of the evidence supporting a jury’s rejection

of a claim of self-defense under only the Jackson standard. Saxton, 804 S.W.2d at

914.

In reviewing the evidence, we give deference to the jury to resolve any

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from the facts. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We treat direct and circumstantial evidence equally: “Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). The fact finder is entitled to judge the credibility of

15
witnesses and can choose to believe all, some, or none of the testimony presented by

the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

A person commits the offense of assault if he intentionally, knowingly, or

recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1).2 The

jury heard Diane’s testimony that Zipprian, her husband at the time of the incident,

became aggressive with her on the way home from a party. The jury heard Diane

testify that Zipprian reacted to her grabbing the steering wheel when she believed

the truck would hit a dog, that Zipprian grabbed her arm and that he squeezed her

arm with his fingernails cutting into her forearm and causing her pain. Diane testified

that their argument continued at home, where Zipprian shoved her against the

refrigerator causing her to fall to the ground, he climbed on top of her, put his hands

around her neck, and said that he would kill her. The jury heard Diane’s testimony

that she tried to fight him off by punching and scratching at him “anywhere and

everywhere[,]” and that she called 9-1-1. The jury heard Diane testify that he took a

gun with him and that when he saw her providing the 9-1-1 operator with the truck’s

license plate, Zipprian switched vehicles and left in the other vehicle. The jury

viewed the photographs of both Zipprian’s and Diane’s injuries and heard the

recording of the 9-1-1 call. The jury also heard Deputy Rodriguez’s testimony that

2
A first family-violence assault is treated like an ordinary bodily-injury
assault (a class A misdemeanor), but any subsequent family-violence assault can be
punished as a third-degree felony. See Tex. Penal Code Ann. § 22.01(b)(2)(A).
16
Rodriguez agreed that based on only evidence and facts she observed from Diane

that she determined that Zipprian was the primary aggressor, and that she stood by

her investigation and decision to file the warrant affidavit for Zipprian’s arrest. The

jury was also presented with Zipprian’s version of the events, wherein he stated that

after she grabbed the steering wheel on the way home from the party, he grabbed her

hand and squeezed her knuckles, injuring her thumb. The jury was presented with

his testimony that Diane repeatedly assaulted him and that he responded by throwing

her against the refrigerator, grabbing her left arm, slapping her in the back of the

head, hitting her in the leg with a water bottle, and subduing her. The jury heard

Zipprian admit that he left the scene with a gun before law enforcement arrived, that

he switched his belongings to his car and left in the car after Diane called 9-1-1 and

provided the dispatcher with the license plate for the truck, and he admitted that he

caused Diane bodily injury.

The jury was not required to believe Zipprian’s version of what transpired that

day. See Chambers, 805 S.W.2d at 461. After viewing the evidence in the light most

favorable to the verdict, we conclude a rational jury could have found the essential

elements of the offense beyond a reasonable doubt and also could have found against

Zipprian on his self-defense claim. See Brooks, 323 S.W.3d at 894-95; Saxton, 804

S.W.2d at 913-14. We overrule issue one.

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Denial of Motion for New Trial

In his second issue, Zipprian argues that the trial court abused its discretion in

denying Zipprian’s motion for new trial raising his claim of ineffective assistance of

counsel. A defendant has a Sixth Amendment right to the effective assistance of

counsel at trial. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668,

684-85 (1984). To establish that he received ineffective assistance of counsel,

Zipprian must demonstrate that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. See Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at

687). The party alleging ineffective assistance has the burden to develop fact and

details necessary to support the claim. See Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994). A party asserting an ineffective-assistance claim must

overcome the “strong presumption that counsel’s conduct fell within the wide range

of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An appellant’s failure

to make either of the required showings of deficient performance or prejudice defeats

the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.

Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.

18
2009) (“An appellant’s failure to satisfy one prong of the Strickland test negates a

court’s need to consider the other prong.”).

The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or that

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation;

counsel should not be judged on isolated portions of the representation. See

Thompson, 9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App.

1990).

We review a trial court’s ruling on a motion for new trial for an abuse of

discretion, “reversing only if the trial judge’s opinion was clearly erroneous and

arbitrary.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We view the

evidence in the light most favorable to the trial court’s ruling, must not substitute

our judgment for that of the trial court, and must uphold the ruling if it is within the

zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex.

Crim. App. 2004). A trial court abuses its discretion in denying a motion for new

trial if no reasonable view of the record could support its ruling. Riley, 378 S.W.3d

at 457; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

In his motion for new trial, Zipprian argued that he was denied his right to

effective counsel at trial because defense counsel failed to investigate and prepare

19
adequately for trial by failing to interview and present witnesses who could have

provided evidence to support Zipprian’s theory at trial. In his motion, Zipprian

argued he should receive a new trial and “[t]here is a reasonable probability that

evidence of [Diane]’s violent reputation and [Zipprian]’s peaceful reputation would

have influenced at least one of the jurors’ verdicts.” Zipprian attached to his motion

declarations from three individuals: (1) Diane’s ex-boyfriend, who stated that he

dated her in 2013 and 2014, that she had a reputation for being untruthful, that she

was the first aggressor in verbal arguments, that she falsely told people he assaulted

her for the attention, and that he would have been available to testify; (2) Zipprian’s

ex-girlfriend, who stated that she dated Zipprian in 2013, that she believed he was a

non-violent person, and that she would have been available to testify at trial; and (3)

Zipprian, who stated that his conversations with defense counsel in preparation for

trial lasted less than thirteen minutes, that defense counsel did not ask Zipprian to

provide names of anyone who would testify as to his peaceful reputation, and that

he did not know this information would have been helpful at trial.

At the hearing on the motion for new trial, defense counsel testified that in

preparation for trial he spoke with Zipprian for more than thirteen minutes and that

he was corresponding with and receiving a lot of information from Zipprian that

defense counsel reviewed. Defense counsel recalled that he and Zipprian discussed

“a lot of strategy in the case[,]” defense counsel agreed that this was a “he-said-she-

20
said case[,]” and defense counsel testified that to his knowledge there were no third-

party witnesses to the offense. Defense counsel testified that it appeared from an e-

mail he exchanged with Zipprian while preparing for the case that Zipprian had

asked if he could provide defense counsel with a list of character witnesses that could

have helped in his case, but defense counsel could not recall whether he asked

Zipprian to follow up and provide the names of those character witnesses, and he

could not recall ever receiving contact information for any potential character

witnesses. Although defense counsel agreed that he should have asked for the names

of such potential witnesses, he still would have had to determine whether those

potential witnesses would qualify as reputation witnesses. According to defense

counsel, he typically explains to his clients that character witnesses must “meet the

criteria to become a character witness both as to truthfulness and as to peaceful and

law-abidingness in an assault situation.” Defense counsel testified that there is

always a concern that character witnesses can potentially “open the door” to “have-

you heard questions” and that defense counsel was concerned about “opening the

door” to the history of confrontations between Zipprian and Diane of which defense

counsel was aware. Defense counsel testified that his trial strategy in this case was

“to keep the case narrowly focused” on the incident that occurred on July 30, 2022.

Defense counsel testified about the risk that even if a character witness is asked a

“have-you-heard” question and the witness answers “no,” the subject matter is still

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before the jury. According to defense counsel, the criteria for a reputation witness

would require recent contact between Zipprian and the witness. The three

declarations attached to Zipprian’s motion for new trial were admitted into evidence

at the hearing. Defense counsel also testified that although Diane’s ex-boyfriend’s

declaration stated that she verbally provoked him to assault her, under Texas law,

mere words are not enough to justify an assault and that what would have been

relevant for Zipprian’s trial would be actual physical contact by Diane against

Zipprian “[s]o provocation really wasn’t relevant to what we were defending in

terms of verbal provocation.” The trial court denied the motion for new trial.

On appeal, Zipprian asserts the following:

Trial counsel could not make in informed, strategic decision not to call
character witnesses to testify at appellant’s trial because [defense
counsel] failed to conduct any investigation into their existence or
availability. Although appellant offered to provide counsel with a list
of witnesses, counsel did not follow up on this offer and failed to
conduct his own investigation. These witnesses would have helped
appellant establish his defense that he is a peaceful person and was only
attempting to ward off an unwanted attack by his wife.

Defense counsel testified that the issue of character witnesses was brought up

in an e-mail between him and Zipprian, but that Zipprian never provided contact

information for any potential character witnesses. Defense counsel also explained at

the hearing that character witnesses in this case, assuming they even qualified as a

character witness, could have “opened the door” to questions regarding Zipprian’s

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history of confrontations with Diane, which could have been detrimental to

Zipprian’s defense.

We conclude based on the record that Zipprian has failed to show that

counsel’s performance was deficient or that if the witnesses had testified that the

result would have been different. See Garcia, 57 S.W.3d at 440 (citing Strickland,

466 U.S. at 687). Furthermore, viewing the evidence in the light most favorable to

the trial court’s ruling, the trial court’s ruling was within the zone of reasonable

disagreement, and we cannot say that the ruling was clearly erroneous or arbitrary.

See Riley, 378 S.W.3d at 457. We conclude the trial court did not abuse its discretion

in denying Zipprian’s motion for new trial. See id. We overrule issue two.

We note that a section of the judgment includes “Plea to 1st Enhancement

Paragraph: TRUE” and “Findings on 1st Enhancement Paragraph: TRUE[.]” The

information under which Zipprian was charged did not allege an enhancement, and

the proceedings do not reflect that the State alleged an enhancement nor that the trial

court made a finding of “true” to any prior convictions. This Court has the authority

to reform the trial court’s judgment to correct clerical errors. See Tex. R. App. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). We therefore

reform the trial court’s judgment to delete “TRUE” and substitute “N/A” to both the

“Plea to 1st Enhancement Paragraph” and “Findings on 1st Enhancement

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Paragraph[.]” Having overruled Appellant’s issues, we affirm the trial court’s

judgment as reformed.

AFFIRMED AS REFORMED.

LEANNE JOHNSON
Justice

Submitted on March 3, 2025
Opinion Delivered March 26, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.

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