AFFIRMED and Opinion Filed March 13, 2019




                                            Court of Appeals
                                                             S     In The


                                     Fifth District of Texas at Dallas
                                                        No. 05-18-00122-CR

                                            ARNULFO RAMIREZ, Appellant
                                                        V.
                                            THE STATE OF TEXAS, Appellee

                                On Appeal from the Criminal District Court No. 1
                                             Dallas County, Texas
                                     Trial Court Cause No. F16-75752-H

                                           MEMORANDUM OPINION
                                    Before Justices Whitehill, Molberg, and Reichek
                                              Opinion by Justice Molberg
           A jury convicted Arnulfo Ramirez of murder and sentenced him to twenty years’

imprisonment. In two issues, Ramirez contends (1) the trial court erred by instructing the jury in

the guilt-phase charge that Ramirez had elected not to testify “in this phase of the trial” and (2) the

prosecutor improperly requested during closing arguments in both the guilt and punishment phases

that the jury return its verdict “quickly.” We affirm the trial court’s judgment.

                                                              Background1

           Ana Ramos, Ramirez’s girlfriend, died after being shot five times. Ramirez subsequently

confessed to shooting Ramos, destroying her cellphone, and throwing the gun into the lake.

Ramirez was charged with murder.



     1
       Because Ramirez does not challenge the sufficiency of the evidence to support the judgment, we recite only those facts necessary to address
his complaints on appeal.
       At the beginning of voir dire, the trial court explained to the prospective jurors that they

were starting “the first phase of the trial,” called the “voir dire examination.” The trial court then

briefly discussed the voir dire process.

       During his examination of the panel, the prosecutor explained the indictment and asked

whether, based on the allegations, any of the prospective jurors had a personal experience that

would prevent them from being “fair to somebody.” One prospective juror responded that “this

would go against my faith, against my conscience.” The prosecutor then asked:

       Some people say, I cannot serve as a juror. I cannot listen to what’s presented and
       decide if someone’s guilty or not. And then in that third phase if – if the jury’s
       asked to assess punishment and decide if they should go to prison or not.

       . . . . [T]hat’s what you’re telling me; is that right?

The prospective juror responded, “Yes, sir.”

       Both the prosecutor and Ramirez’s counsel questioned the prospective jurors about their

ability to consider the entire range of punishment. In response to the prosecutor’s questions, one

prospective juror indicated he would have difficulty assessing the lower range of punishment out

of concerns the person “might do it again.” The prosecutor reminded the prospective juror that

“in the punishment phase” there could be additional evidence pertaining to the likelihood of the

person committing another crime.

       In his voir dire examination, Ramirez’s counsel explained a “crime of passion” to the panel:

       If a jury finds someone guilty of murder, the law says that in the punishment phase
       of the trial, it’s up to us, the Defense, to bring to you evidence that proves by a
       preponderance of the evidence that the person committed the act while under the
       immediate influence of sudden passion.

       ....

       Because the way it works is in the punishment phase, the jury gets to entertain that
       issue, if that’s raised by the evidence as to whether or not it was a crime of passion.
       That’s after you find somebody guilty of murder. Then the 12 of you get to decide
       whether or not to answer that issue in the affirmative or in the negative.

                                                  –2–
       Finally, after both the State and Ramirez rested and closed their cases, the trial court

informed the jury that they had heard all the evidence “in this phase of the trial.”

       In the guilt-phase charge, the trial court instructed the jury on both murder and the lesser-

included offense of manslaughter. The trial court also instructed the jury that:

       [T]he defendant may testify in his own behalf if he elects to do so, but if he chooses
       not to do so, that fact cannot be taken as a circumstance against him nor prejudice
       him in any way. The defendant has elected not to testify in this phase of the trial,
       and you are instructed that you cannot and must not refer to nor allude to that fact
       throughout your deliberations or take it into consideration for any purpose
       whatsoever as a circumstance against the defendant.

Ramirez objected that the phrase “in this phase of the trial” was an improper comment on the

weight of the evidence because it signaled to the jury that there might be another phase of the trial.

The trial court overruled the objection.

                                             Charge Error

       In his first issue, Ramirez asserts the trial court erred by including the phrase “in this phase

of the trial” in the guilt-phase charge because the phrase was misleading, did not add a necessary

fact to the jury instructions, and required a jury that was inclined to find him not guilty to ignore

the “suggestion that there will be a next phase in which” Ramirez might testify.

       We review a claim of jury charge error in two steps. Price v. State, 457 S.W.3d 437, 440

(Tex. Crim. App. 2015). First, we determine whether the charge is erroneous. Id. If there is error

in the charge, we review the record to determine whether the error caused sufficient harm to require

reversal. Id.

                                           No Error in Charge

       As a general rule, the trial court is required to deliver to the jury a written charge distinctly

setting forth the law applicable to the case. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim.

App. 2008); see also Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (noting charge

“must contain an accurate statement of the law and must set out all the essential elements of the
                                                  –3–
offense”). In the charge, the trial court should not express any opinion as to the weight of the

evidence, sum up the testimony, discuss the facts, or use any argument calculated to arouse the

sympathy or excite the passions of the jury. Bartlett, 270 S.W.3d at 150; Henry v. State, 194

S.W.2d 264, 265 (Tex. Crim. App. 1946) (A jury charge should state “the law applicable to the

case, without expressing or intimating any opinion as to the weight of the evidence, or the

credibility of the statements made by the party accused or by the witnesses.”). An instruction

constitutes a comment on the weight of the evidence if it furnishes a standard by which the jury

should weigh the testimony or if it authorizes the jury to act arbitrarily in passing on the credibility

of a witness. Russell v. State, 749 S.W.2d 77, 79 (Tex. Crim. App. 1988); see also O’Connell v.

State, 17 S.W.3d 746, 748 (Tex. App.—Austin 2000, no pet.). In determining whether an

instruction is a comment on the weight of the evidence, we look to the probable effect of the

instruction on the jury in the context in which it was given. Russell, 749 S.W.2d at 79; see also

Vasquez, 390 S.W.3d at 366 (noting that, on examining charge for possible error, we review charge

as a whole instead of a series of isolated and unrelated statements).

       Here, the phrase “in this phase of the trial” was in the trial court’s instruction to the jury

that Ramirez had an absolute right not to testify and the jury could not hold his failure to do so

against him. The instruction was neutral on its face and a correct statement of the law. The

instruction did not discuss the facts, sum up the testimony, express an opinion regarding the

credibility of any witness, or attempt to arouse the jury’s sympathy or excite its passion.

       Further, the jury had been informed during voir dire about the three phases of trial—voir

dire, guilt, and punishment. It had also been told that it might be required to decide Ramirez’s

punishment. Therefore, before it received the guilt-phase charge, the jury knew the trial consisted

of more than one phase and that Ramirez had not testified during the guilt phase. The inclusion of

the phrase “in this phase of the trial” did not suggest to the jury that the trial court expected the

                                                 –4–
trial to continue to the punishment phase or that Ramirez might testify if there was a punishment

phase.

         On this record, we cannot conclude the inclusion of the phrase “in this phase of the trial”

in the guilt-phase charge constituted an improper comment on the weight of the evidence by the

trial court or, in the context it was given, had the effect of misleading the jury. Accordingly, there

was no error in the jury charge.

                                              No Harm

         Further, even if there had been error, it would have been harmless. The degree of harm

necessary for reversal depends upon whether the error was preserved in the trial court. Marshall

v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g). If, as in this case, the defendant preserved error by

objecting at trial, we reverse if the error caused “some harm.” Rogers v. State, 550 S.W.3d 190,

191 (Tex. Crim. App. 2018); Almanza, 686 S.W.2d at 171. “Some harm” means actual harm and

not merely a theoretical complaint.” Braughton v. State, No. PD-0907-17, 2018 WL 6626621, at

*15 (Tex. Crim. App. Dec. 19, 2018). In conducting the harm analysis, we consider the entire jury

charge, the state of the evidence, the jury arguments, and any other relevant information as revealed

by the record as a whole.     French v. State, 563 S.W.3d 228, 235–36 (Tex. Crim. App. 2018);

Almanza, 686 S.W.2d at 171.

         Under the first factor of the harm analysis, we review the entire jury charge to determine

whether anything, other than the erroneous instruction, either exacerbated or ameliorated the error.

French, 563 S.W.3d at 236. Here, the trial court instructed the jurors on the definitions of murder

and manslaughter; that they were required to find beyond a reasonable doubt that Ramirez was

guilty of murder; if they had a reasonable doubt that Ramirez was guilty of murder, they were

required to consider whether he was guilty of manslaughter; and if they had a reasonable doubt of

                                                 –5–
Ramirez’s guilt, they were required to find him not guilty. The jurors were told that the burden of

proof was on the State to prove each element of the offense beyond a reasonable doubt and that

Ramirez was presumed to be innocent, and could not be convicted, unless the State met its burden.

Finally, the jurors were specifically instructed that, in reaching their verdict, they could not

consider Ramirez’s election not to testify. We conclude these instructions ameliorated any error

by the trial court in referring to “this phase of the trial.” Accordingly, this factor weighs against a

finding of some harm.

       As to the state of the evidence, the jurors heard Ramirez’s confession in which he admitted

he shot Ramos, but claimed he did so because he was in a rage over her “using” him for money

and seeing another man. Ramirez, however, also admitted that he was at his home exchanging

text messages with Ramos when he became enraged. He was required to look for his gun because

he did not remember where he had stored it. After he found the gun, he loaded it, drove to Ramos’s

business, asked Ramos to prepare him a Herbalife shake, and shot her after she refused to do so.

Based on the strong evidence of Ramirez’s guilt, we cannot conclude the inclusion of the phrase

“in this phase of the trial” impacted the jury’s decision. See Elizondo v. State, 487 S.W.3d 185,

209 (Tex. Crim. App. 2016) (considering, in conducting harm analysis, whether evidence of guilt

was so overwhelming as to render erroneous instruction harmless). Therefore, this factor also

weighs against a finding of some harm.

       The third factor of the analysis is the argument of counsel. Neither the prosecutor nor

defense counsel mentioned Ramirez’s failure to testify or a possible punishment phase of the trial

during their closing arguments in the guilt phase of the trial. The prosecutor argued the evidence

established beyond a reasonable doubt that Ramirez murdered Ramos. In his argument, defense

counsel primarily focused on Ramirez’s mental state. Defense counsel repeatedly argued that,

although Ramirez shot Ramos and was “not innocent,” the State failed to prove Ramirez was guilty

                                                 –6–
of murder. Defense counsel specifically argued that, if Ramirez was “guilty of anything, he’s

guilty of manslaughter” and urged the jury to “enter the appropriate verdict.” Given counsel’s

focus on Ramirez’s mental state as the primary issue, this factor weighs against a finding of some

harm. See Braughton, 2018 WL 6626621, at *18 (“Given counsel’s focus on self-defense as the

primary issue in the case, the arguments of counsel also weigh against a finding of harm here.”).

       Finally, other relevant informtion in the record shows the various phases of the trial were

discussed with the jury from the beginning of voir dire. The jurors were informed of a potential

punishment phase during voir dire and that they might be required to assess punishment. Further,

there is nothing in the record reflecting the inclusion of the phrase “in this phase of the trial”

affected the jury’s decision on Ramirez’s guilt. Accordingly, this factor also weighs against a

finding of harm.

       Ramirez argues he was harmed because the inclusion of the phrase “in this phase of the

trial” in the guilt-phase charge (1) “creates an implicit-type bias pushing the subconscious mind to

expect a further phase,” which would require a guilty verdict and (2) might lead a juror to create

another phase of the trial by finding Ramirez guilty with the expectation Ramirez would “speak

up to mitigate or explain” his conduct in that subsequent phase. However, where the record reflects

a “risk of harm that is so small that it may properly be characterized as not ‘remotely significant’”

or that the risk of harm is “almost infinitesimal,” any harm resulting from the error in the charge

is only theoretical harm. French, 563 S.W.3d at 239 (quoting Owings v. State, 541 S.W.3d 144,

152–53 (Tex. Crim. App. 2017); Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006)).

After considering the relevant factors, we conclude the record fails to show that Ramirez suffered

actual, as opposed to theoretical harm, from the inclusion of the phrase “in this phase of the trial”

in the guilt-phase charge. See id.

       We resolve Ramirez’s first issue against him.

                                                –7–
                                          Jury Argument

       In his second issue, Ramirez complains that, during closing arguments in both the guilt and

punishment phases of the trial, the prosecutor improperly urged the jury to return its verdict

“quickly.” Ramirez acknowledges he did not object to either argument, but raises the issue in his

brief in order to preserve it “for potential further review.”

       When a defendant fails to object to jury argument, he forfeits his right to raise the issue on

appeal. Hernandez v. State, 538 S.W.3d 619, 622–23 (Tex. Crim. App. 2018); Wead v. State, 129

S.W.3d 126, 130 (Tex. Crim. App. 2004) (“At the outset, the court of appeals erred in even

considering appellant’s argument that the prosecutor’s comment [during closing argument]

amounted to a comment on appellant’s failure to testify, since appellant made no such argument

in the trial court.”). Because Ramirez failed to object to the prosecutor’s argument at trial, he has

waived his right to raise the issue on appeal. We resolve Ramirez’s second issue against him.

       We affirm the trial court’s judgment.




                                                    /Ken Molberg/
                                                    KEN MOLBERG
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
180122F.U05




                                                 –8–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

 ARNULFO RAMIREZ, Appellant                       On Appeal from the Criminal District Court
                                                  No. 1, Dallas County, Texas
 No. 05-18-00122-CR       V.                      Trial Court Cause No. F-1675752-H.
                                                  Opinion delivered by Justice Molberg.
 THE STATE OF TEXAS, Appellee                     Justices Whitehill and Reichek
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 13, 2019




                                            –9–
