      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00041-CR
                                      NO. 03-05-00042-CR




                          Juan Roberto Ramos Rodriguez, Appellant

                                                 v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
    NOS. CR21,051 & CR21,052, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING



                                          OPINION


               In the first of these causes, a jury found appellant Juan Roberto Ramos Rodriguez

guilty of murder and assessed punishment at forty years’ imprisonment and a $10,000 fine. See Tex.

Pen. Code Ann. § 19.02 (West 2003). In the second cause, the same jury found appellant guilty of

attempted murder and assessed punishment at twenty years’ imprisonment and a $10,000 fine. See

id. § 15.01. In a single point of error, appellant contends that the jury charge did not afford him a

unanimous verdict on the issue of self-defense. We will overrule this contention and affirm the

convictions.

               On the night of June 3, 2004, appellant shot Alejandro Romero six times, killing him.

He then shot Baldemar Arzola three times. The shootings culminated an evening that began with

appellant and Romero drinking beer together at the home of Juan Moncivais. Later, the drinking
continued in the yard outside Romero’s and Arzola’s neighboring residences on the farm where all

four men were employed. During the course of the evening, Romero told appellant that, on another

occasion, Arzola had said that he wanted to kill appellant. This upset appellant, who confronted

Arzola about what he had said. Arzola and Romero assured appellant that Arzola had been drunk

when he made the statement and had not meant it. This did not satisfy appellant, who eventually

pulled a pistol from his pants and fired two shots into the ground at Romero’s feet. When Romero

stepped forward, appellant shot him and then shot Arzola.

                Appellant testified that he believed that Romero and Arzola were armed with knives

and about to attack him. He acknowledged, however, that neither man displayed a weapon. During

earlier statements to the police, appellant said that he had meant to shoot Arzola, but did

not mean to shoot Romero.

                In its charge, the trial court instructed the jury on the use of deadly force in self-

defense. See id. §§ 9.31, 9.32. The court qualified appellant’s right of self-defense by telling the

jury that the use of force against another is not justified if the actor provoked the other’s use or

attempted use of force, or if the actor sought an explanation from or discussion with the other person

concerning their differences while the actor was unlawfully carrying a weapon.

See id § 9.31(b)(4), (5). In applying the law to the facts, the court instructed the jurors to find against

appellant on the issue of self-defense if they believed beyond a reasonable doubt that he had

provoked the difficulty or had sought out Romero and Arzola while unlawfully armed.

                Appellant asserts that in qualifying his right of self-defense, the trial court erred by

failing to require the jurors to agree unanimously as to whether he provoked the difficulty, or



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unlawfully armed himself before seeking out Romero and Arzola, or both. He also draws our

attention to the prosecutor’s jury argument, where he said:


               The twelve of you don’t have to agree on which one you think happened. Six
       of you could think well, he was carrying a gun seeking the discussion and therefore
       there’s no self-defense and six of you—or four of you could say well, he provoked
       the difficulty, therefore he gets no self-defense and the other two could say, well, I
       think he did both so he doesn’t get self-defense.

               So, you don’t all have to agree that he was carrying the gun or he provoked
       the difficulty or you don’t all have to agree that it was both. You just all have to say
       I don’t believe he was defending himself and you can choose which of those two you
       believe, that he was carrying the gun or he provoked the difficulty or both.


Appellant did not object to the charge or to the argument.

               The right to a unanimous jury verdict in a felony case is constitutionally and

statutorily guaranteed. See U.S. Const. amends. VI, XIV; Tex. Const. art. V, § 13; Tex. Code Crim.

Proc. Ann. art. 36.29(a) (West Supp. 2006). The unanimity requirement ensures that each juror is

convinced beyond a reasonable doubt that the prosecution has proved each essential element of the

offense. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (quoting State v. Johnson,

243 Wis.2d 365, 627 N.W.2d 455, 459-60 (2001)). But while jury unanimity is required as to the

essential elements of the offense, if the statute in question establishes different modes or means by

which the offense may be committed, unanimity is generally not required as to the alternate modes

or means of commission. Id. Ordinarily, then, the first step in a unanimity challenge is an

examination of the statutory language to determine the elements of the crime and whether the

legislature has created a single offense with multiple or alternate modes of commission. Id.




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                Self-defense is not a crime, of course, but a justification for conduct that would

otherwise be criminal. Tex. Pen. Code Ann. § 9.02 (West 2003). When the issue is raised by the

evidence, the State bears the burden of proving beyond a reasonable doubt that the defendant’s

conduct was not justified by self-defense. Id. § 2.03(d). To meet this burden, the State is not

required to produce evidence to disprove the raised defense, but only to prove its case beyond a

reasonable doubt. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State,

804 S.W.2d 910, 914 (Tex. Crim. App. 1991). In other words, the State must present evidence

sufficient to support a finding beyond a reasonable doubt that the defendant committed each of the

essential elements of the crime and did not act in self-defense. Saxton, 804 S.W.2d at 914.

                To ensure that the State’s burden of proof is met, the jurors must unanimously agree

that the defendant’s conduct was not justified by self-defense. It is not necessary, however, that they

unanimously agree as to why. The various prerequisites and qualifications contained in sections 9.31

and 9.32 are simply the “modes or means” by which the defense is raised by the defendant and, when

raised, disproved by the State. Under the law of self-defense as it applies to the facts of this case and

was set out in the court’s charge, the jurors could have concluded that appellant’s use of deadly force

against Romero and Arzola was not justified because: (1) appellant did not reasonably believe that

the use of deadly force was immediately necessary to protect himself from Romero’s and Arzola’s

use or attempted use of unlawful deadly force (Tex. Pen. Code Ann. § 9.32(a)(3)(A)); or (2) a

reasonable person in appellant’s position would have retreated (id. § 9.32(a)(2)); or (3) appellant

provoked Romero’s and Arzola’s use or attempted use of unlawful force (id. § 9.31(b)(4)); or

(4) appellant sought an explanation or discussion with Romero and Arzola while unlawfully carrying



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a firearm (id. § 9.31(b)(5)). Each of these reasons for rejecting appellant’s self-defense claim results

in the same conclusion: appellant was not justified in using deadly force under the circumstances and

therefore guilty of murder and attempted murder. See Jefferson, 189 S.W.3d 313-14.

               The trial court did not err by failing to require a unanimous jury finding regarding the

section 9.31(b) limitations on the right of self-defense. The point of error is overruled and the

judgments of conviction are affirmed.




                                               ___________________________________________

                                               David Puryear, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: November 8, 2006

Publish




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