      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00529-CR



                                Juan Antonio Ramirez, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
         NO. 2030230, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant, Juan Antonio Ramirez, guilty of the offense of murder. See

Tex. Pen. Code Ann. § 19.02(b)(1) (West 2003). Ramirez asserts that the evidence is factually

insufficient to support his conviction. He also contends that the district court erred by failing to

clarify its charge on the issue of voluntary intoxication during the guilt-innocence phase of the trial

and by not instructing the jury on voluntary intoxication during the punishment phase of the trial.

We will affirm the judgment of the district court.


                                         BACKGROUND

               On the evening of January 16, 2003, Officer Eric Bilson of the Austin Police

Department responded to a “nature unknown” call at 7508 Providence Avenue. The call indicated

that someone may have been injured. Upon arriving at the location, Bilson noticed a blood trail
leading away from the opened front door of the residence. When other officers arrived at the scene,

Bilson entered the duplex, where he observed blood on the living room floor and on the couch. After

determining that there was no one inside, Bilson began to rope off the area.

               Another officer, Jeffrey Page, arrived at the crime scene immediately after Bilson.

He first noticed a body lying on the ground across the street and went over to examine it. He

observed that the person appeared dead and that his shirt was cut and bloody. Page left another

officer to take care of the body, and then went inside the duplex to assist Bilson. The first thing he

noticed inside was a large butcher knife on the couch in the living room. A second knife was found

in the yard outside the duplex.

               As Bilson returned to his patrol car after securing the crime scene, a pickup truck

drove up to him. The two men inside, Antonio Martinez and Ildiberto Vargas, told Bilson that they

were witnesses to the crime. Bilson noticed that there was blood on the driver’s side of the vehicle,

so he roped off the truck as part of the crime scene and detained the witnesses. Martinez and Vargas

told the police that Juan Ramirez was the perpetrator, and the police began looking for him.

               Officer Andrew Waters found Ramirez later that night. Waters was driving to the

crime scene and noticed a person matching Ramirez’s description walking along St. John’s Avenue.

Waters drove past him, stopped, and then waited until Ramirez walked up to him. Waters asked

Ramirez some questions, determined that he might be intoxicated, and arrested him for public

intoxication. Ramirez was taken to Brackenridge Hospital where he was treated for cuts on his right

hand; he had no other injuries.

               At approximately 1:30 a.m., less than 90 minutes after the incident allegedly occurred,

Detective Douglas Skolaut arrived at the crime scene to investigate the physical evidence. The first

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piece of evidence he examined was the pickup truck, and he documented the various spots on the

truck where there were blood drops and blood smears. He also documented blood smears on and

around a nearby van. Skolaut next approached the victim and observed that he had been stabbed

multiple times in the chest area. Skolaut also investigated the duplex and, based on the blood

evidence inside, determined that a violent incident had begun on the couch in the living room. He

also noticed evidence that the occupants of the duplex had been drinking alcohol, including a shot

glass and a half empty bottle of brandy.

               The victim was later identified as Domingo Salgado. An autopsy conducted on

Salgado revealed a total of thirty-seven different stab wounds on his face, chest, extremities, and

abdomen that had come from several directions—front to back, downward, upward, to the left, and

to the right. Several of the stab wounds went through his heart and one of his lungs. Toxicology

tests were also conducted on Salgado, and they revealed that his blood alcohol level was .24, which,

according to the testimony of medical examiner Dr. Elizabeth Peacock, meant that Salgado was

“quite intoxicated” at the time of his death. No other drugs were present in his system. A medical

examiner testified that the multiple stab wounds caused Salgado’s death.

               On March 26, 2003, Ramirez was charged with Salgado’s murder. A jury found

Ramirez guilty and the district court assessed his punishment at 60 years’ confinement. This appeal

followed.


                                           DISCUSSION

               In four issues on appeal, Ramirez asserts that: (1) the evidence is factually insufficient

to support his conviction; (2) the district court failed to supplement the jury charge during guilt-


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innocence to clarify the issue of voluntary intoxication; and (3) and (4) the district court erred in

failing to instruct or inform the jury during punishment on the issue of voluntary intoxication.


Factual sufficiency

    Standard of review

               When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.

Crim. App. 2004). In a factual sufficiency review, we consider all the evidence equally, including

the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836

S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). We consider all the evidence, rightly or

wrongly admitted. See Camarillo v. State, 82 S.W.3d 529, 537 (Tex. App.—Austin 2002, no pet.).

Although due deference still must be accorded the fact-finder’s determinations, particularly those

concerning the weight and credibility of the evidence, we may disagree with the result to prevent a

manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). We will deem the

evidence factually insufficient to sustain the conviction if the proof of guilt is too weak or the

contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, 144

S.W.3d at 484-85.


    Application

               To prove Ramirez guilty of murder, the State was required to prove beyond a

reasonable doubt that Ramirez intentionally or knowingly caused the death of Salgado. Tex. Pen.

Code Ann. § 19.02(b)(1) (West 2003).

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               Two witnesses, Martinez and Vargas, both testified to seeing Ramirez attack, chase,

and stab Salgado multiple times with a knife. Ramirez contends, however, that “the physical

evidence does not conform to the testimony of the [S]tate’s witnesses.” Specifically, Ramirez asserts

that there are inconsistencies in the testimony of Martinez and Vargas and that his own testimony,

suggesting that he stabbed the victim in self-defense, is more consistent with the physical evidence.


         The testimony of Martinez and Vargas

               Martinez and Vargas testified that on the night of the offense, they were socializing

at a duplex with three co-workers: Ramirez, Salgado, and a man named Tomas. All but Vargas

lived together in the duplex and would often socialize and drink there after work. On this particular

evening, Ramirez, Salgado, and Tomas were drinking brandy. Salgado and Tomas were mixing the

brandy with cola, but Ramirez was drinking it “straight.”

               Around midnight, the men were in the living room and still drinking. Ramirez,

Salgado, and Tomas began having a discussion about who could drink the most. The disagreement

escalated into a fight. Salgado challenged Ramirez to drink more, but Ramirez repeatedly refused.

Salgado eventually stood up and kicked Ramirez in the foot. Ramirez responded by “jumping”

Salgado and hitting him with his fist. Martinez grabbed Ramirez and Vargas grabbed Salgado,

separating the two. Salgado sat down on the couch while Ramirez went into the kitchen, where he

retrieved two knives. He emerged from the kitchen with a knife in each hand. Vargas tried to calm

him down, but Ramirez attempted to stab Vargas, who then ran outside and sought safety in his

truck. Tomas also ran outside. Ramirez then lunged at Salgado and stabbed him in the chest several




                                                 5
times. Martinez yelled at Ramirez to stop and yelled at Salgado to run. Salgado was able to run out

of the duplex, but Ramirez chased after him with at least one knife still in his hand.

               Martinez then ran outside and watched as Ramirez continued to chase Salgado, who

was running around the parking lot trying to escape. Martinez continued to yell at Ramirez to stop,

but to no avail. At one point, Salgado attempted to get in the truck with Vargas, but he didn’t have

enough time because Ramirez was too close behind him. As he was chasing Salgado around

Vargas’s truck, Ramirez tried to stab at Vargas through the window. Ramirez then began to chase

Martinez, but Martinez jumped in the bed of Vargas’s truck, which was still parked outside the

duplex.

               Ramirez resumed his pursuit of Salgado, and eventually caught him. Salgado

collapsed on the ground and Ramirez knelt in front of him, stabbing him repeatedly. Every time

Salgado would try to get up, Ramirez would knock or kick him down and start stabbing him again.

Finally, Ramirez kicked Salgado “with everything he had” and Salgado did not get up. At this point

Martinez and Vargas drove away. They returned when the police arrived.

               Ramirez asserts that there are some inconsistencies in the testimony of Martinez and

Vargas. First, both Martinez and Vargas testified that Ramirez was holding more than one knife

when he was chasing Salgado outside the duplex. However, the police found only one knife outside

the duplex; the police found the other knife on the couch in the living room. This fact suggests the

possibility that Ramirez was holding only one knife when he was chasing Salgado. Another

inconsistency related to how the police were notified about the crime—Vargas testified to using his

cellular phone to call the police, while Martinez testified that he called his wife from a Home Depot

so that she could call the owner of the duplex, who would call the police. A third inconsistency is


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the sequence in which Vargas and Martinez ran out of the duplex. Martinez testified that he was the

last person to leave, while Vargas testified that Martinez ran out immediately after him.

               We conclude, however, that a rational jury could find that these inconsistencies had

no bearing on the ultimate issue of whether Ramirez murdered Salgado. Martinez and Vargas were

consistent on the facts that were essential to the State’s charge—both testified to seeing Ramirez

attack, chase, and stab Salgado multiple times with a knife.

               Furthermore, the version of the facts presented by Martinez and Vargas was consistent

with the physical evidence obtained at the crime scene. Martinez and Vargas testified that Ramirez

chased Salgado around Vargas’s truck and other vehicles; blood was found around Vargas’s truck

and other vehicles. Martinez and Vargas testified that Salgado ran to a grassy area where Ramirez

proceeded to stab him multiple times; the police found Salgado’s body on the ground in the area they

described. Also, the blood evidence found in the duplex was consistent with their testimony that

Ramirez’s attack on Salgado began on the couch. Finally, a medical examiner testified that Salgado

was stabbed multiple times from various directions, which is consistent with their description of

Ramirez’s repeated stabbings of Salgado.


         The testimony of Ramirez

               Ramirez testified in his own defense, and presented a different version of the events.

According to Ramirez, the incident began when Salgado slapped Tomas in the face. Before Salgado

and Tomas could start fighting each other, Vargas, Martinez and Ramirez separated the two. After

everyone had settled down, Tomas began provoking Salgado. Vargas, Martinez, and Ramirez again

attempted to defuse the situation. Salgado, however, got up to fight Tomas, and Ramirez had to grab



                                                 7
him to prevent another altercation. After this, according to Ramirez, Tomas went to the bathroom

and Salgado went to the kitchen.

               Salgado then returned to the living room with his hands behind his back.

Unbeknownst to Ramirez, Salgado was holding a knife. Ramirez testified that Salgado attempted

to stab him in the back, but the knife only grazed him. Ramirez then fell to the floor, and Salgado

attempted to stab him again. Ramirez put his hands out to defend himself, and Salgado cut

Ramirez’s hand. Salgado then fell onto the couch and Ramirez lunged at him and struggled with him

for the knife. While Salgado was still holding the knife, Ramirez turned it toward Salgado and

stabbed him in the stomach. Ramirez then saw Martinez and Vargas run out of the duplex, but

Ramirez never saw Tomas leave the bathroom. Ramirez testified that he then left the duplex and

walked for several blocks. He walked aimlessly in different directions and at one point sat down on

a park bench to calm himself down. He did not know how long he was sitting there. He eventually

resumed walking, at which time he encountered Officer Waters.

               On cross-examination, Ramirez testified that he only stabbed Salgado twice, both

times in self-defense, and he speculated that Tomas murdered Salgado after Ramirez and the others

were gone. Ramirez also asserts in his brief that Tomas had a motive to “finish off” the victim,

presumably because Salgado was provoking Tomas in the same way he was provoking Ramirez.

However, other than Ramirez’s testimony, there is no evidence in the record suggesting that Tomas

had anything to do with Salgado’s murder. Martinez even testified that Tomas ignored Salgado and

told him that “I drink what I can drink.”

               Ramirez claims that his version of the events more accurately conforms to the

physical evidence. We disagree. The only pieces of evidence that could possibly support his theory


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of self-defense are State’s Exhibits 110 and 111, which show cuts to Ramirez’s hand. However, the

cuts on Ramirez’s hand were just as consistent with the State’s theory that Ramirez’s hand slipped

onto the blade of the knife as he stabbed Salgado. The exhibits establish only that appellant was

injured during the incident—they do not establish how he was injured. Much of the other physical

evidence—the blood trail leading away from the duplex, the blood found around Vargas’s truck and

the surrounding vehicles, the location of Salgado’s body, and the multiple stab wounds from

different directions in different locations on Salgado’s body—does not support the version of events

described by Ramirez.

                It is the exclusive province of the jury to determine whether Ramirez’s version of the

events is more or less credible than the version presented by Martinez and Vargas. See Johnson v.

State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.

App. 1981). There is nothing in the record to suggest that it was irrational for the jury to reject the

testimony of Ramirez and accept the testimony of Martinez and Vargas.

                Considering all the evidence in a neutral light, the jury was rationally justified in

finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484 We overrule Ramirez’s first

issue.


Instruction on voluntary intoxication in guilt-innocence phase

                In his second issue, Ramirez asserts that during the guilt-innocence phase of trial the

district court erred in failing to supplement the jury charge to clarify an alleged inconsistency in the

instructions.




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                The jury was apparently confused about whether it could consider voluntary

intoxication when determining Ramirez’s culpability. The charge stated in relevant part: “You are

further instructed that voluntary intoxication does not constitute a defense to the commission of a

crime.    ‘Intoxication’ means disturbance of mental or physical capacity resulting from the

introduction of any substance into the body.” It also instructed the jury regarding culpability: “A

person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware

that his conduct is reasonably certain to cause the result.”

                During its deliberations, the jury sent a note to the court containing the following

question:


         There is evidence suggesting the defendant’s intoxication, perhaps to the point of the
         defendant being unaware of consequences of his actions. Yet we’re unable to
         consider voluntary intoxication as a defense. This seems contradiction to some and
         we have the question how do we consider possible awareness impairment and at the
         same time not consider it (because of its being caused by voluntary intoxication)?
         [sic]


The jury received the following answer: “The Court refers you to the Charge, which contains all of

the law the Court can legally provide to you in this case. You are bound by the instructions that are

contained in the Court’s Charge.” Ramirez asserts in his brief that it was error for the court not to

clarify the “inherent inconsistency” in the charge.

                Ramirez failed to preserve this complaint. At trial, he neither sought clarification of

the portion of the court’s charge addressing voluntary intoxication, nor did he object to the court’s

instruction in response. We will, therefore, reverse the judgment only if the charge was incorrect

and resulted in egregious harm. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005);

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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App 1984). The charge accurately tracks the

language of the penal code, see Tex. Pen. Code Ann. § 8.04(a) (West 2003), and there is nothing in

the record to support a finding that, in this case, tracking the language of the penal code was

insufficient. We overrule Ramirez’s second issue.


Instruction on voluntary intoxication during punishment phase

               In his third and fourth issues, Ramirez asserts that the district court erred in failing

to instruct or inform the jury regarding voluntary intoxication during the punishment phase of trial.

               During the charge conference at the punishment phase of the trial, Ramirez requested

an instruction on voluntary intoxication pursuant to section 8.04(b) of the penal code, which provides

that “evidence of temporary insanity caused by intoxication may be introduced by the actor in

mitigation of the penalty attached to the offense for which he is being tried.” Id. § 8.04(b). The

district court denied Ramirez’s request, but informed him that he was free to argue that “intoxication

may be mitigation” in his closing argument.

               When temporary insanity is relied upon as a defense and the evidence tends to show

that such insanity was caused by intoxication, the court shall charge the jury accordingly. Id. at

§ 8.04(c). To be entitled to such an instruction, however, the evidence must show that the

intoxication rendered the defendant temporarily insane in that (1) he did not know his conduct was

wrong or (2) he was incapable of conforming his conduct to the law. Cordova v. State, 733 S.W.2d

175, 190 (Tex. Crim. App. 1987); Shelton v. State, 41 S.W.3d 208, 213 (Tex. App.—Austin 2001,

pet. ref’d). Evidence that the defendant was intoxicated at the time of the offense does not




                                                 11
automatically entitle him to a mitigation instruction at punishment. Miniel v. State, 831 S.W.2d 310,

320 (Tex. Crim. App. 1992); Shelton, 41 S.W.3d at 213.

                To prove temporary insanity by intoxication, a defendant has to show more than

intoxication; he has to present evidence that either the intoxication made him unaware that what he

was doing was wrong, or it made him incapable of conforming his conduct to the law. See Cordova,

733 S.W.2d at 190. Ramirez presented evidence of intoxication,1 but he failed to present evidence

that, because of his intoxication, he did not know his conduct was wrong or he was incapable of

conforming his conduct to the law.2 Because he failed to present evidence of temporary insanity,

       1
         Ramirez, Martinez, and Vargas all testified that Ramirez had been drinking that night.
Also, Officer Waters testified that Ramirez appeared intoxicated when he arrested him.
       2
         The only evidence in the record even suggesting that Ramirez might have been “crazy”
came in during the cross-examination of Vargas:

           Q: One of the things that in talking about this incident that you told the police
              was that when you saw Juan stab Domingo in the room, you saw that he
              continued to stab him, you told the police that you saw that you thought like
              [Ramirez] had gone crazy.

           A: Well, yeah. I would talk to him, and how do I say it, he wouldn’t pay
              attention to anybody.

           Q: He didn’t respond to anybody?

           A: No.

           Q: And you thought that, you know, he was going to try to kill all of you?

           A: Well, yeah.

However, evidence that Ramirez may have been “crazy drunk” at the time of the offense does not
entitle him to an instruction on temporary insanity. See Cordova v. State, 733 S.W.2d 175, 190 (Tex.
Crim. App. 1987). Ramirez needed to present evidence that he did not know his conduct was wrong
or that he was incapable of conforming his conduct to the law. Id. He failed to do so.

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Ramirez was not entitled to a mitigating instruction on voluntary intoxication during punishment.

We overrule Ramirez’s third and fourth issues.


                                          CONCLUSION

                  Having overruled all of Ramirez’s issues on appeal, we affirm the judgment of the

district court.




                                               Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: April 21, 2006

Do Not Publish




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