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Ramirez v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 18, 2005
No. 05-04-00251-CR (Tex. App. Aug. 18, 2005)

Summary

concluding jury necessarily made deadly weapon finding by finding defendant guilty of murder as party or principal

Summary of this case from Dao Minh Truong v. State

Opinion

No. 05-04-00251-CR

Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-49647-VK. Affirmed.

Before Justices BRIDGES, O'NEILL, and MAZZANT.


OPINION


Julian Ramirez appeals his murder conviction. A jury convicted appellant and sentenced him to forty-five years' confinement. In two issues, appellant argues the trial court erred in entering in the judgment the finding that appellant used a deadly weapon during the commission of the offense and the jury charge was fundamentally erroneous in failing to require the jury to find that appellant committed the offense of murder. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. Appellant testified that, on February 21, 2002, Arturo Zamano called him and told him to come to his apartment and translate for him. Zamano said there were two men in his apartment, and he thought they had a gun. When appellant got to the apartment, he saw someone he recognized as "Mosca" there with Zamano and a man appellant did not recognize, Andrew Garcia. Appellant translated Garcia's demand for money and drugs and Zamano's response that he had no money or drugs. Zamano told Garcia to leave, and Garcia became very upset and refused. Garcia said "something was going to happen there." Appellant started dialing his cell phone, and Garcia grabbed him by the neck and threatened to kill appellant. Garcia produced some scissors and cut Appellant's neck. The two struggled, breaking a glass coffee table. Appellant called for Zamano's help, and Zamano came over and "wanted to pick [appellant] up." Appellant stood and realized he had been cut. Appellant started walking away "like trying to show [Garcia] that [appellant] didn't want any problems." Zamano went toward the kitchen, and appellant went toward a bedroom. Garcia ran toward Zamano, but appellant went into a bathroom to look at his cut. Appellant heard Garcia and Zamano fighting in the kitchen and went back out toward the kitchen. When appellant came back out, he saw Zamano had the scissors in his hand and was grabbing a cut on his stomach. Appellant hit Garcia in the back, and he turned to fight with appellant. Appellant continued hitting Garcia, and Zamano hit Garcia with "a jar or something" and continued hitting him in the back. Garcia fell to his hands and knees, and appellant and Zamano stopped hitting him. Garcia crawled away, and Zamano told Mosca to take Garcia away. Mosca helped Garcia out of the apartment but soon returned, saying Garcia was not breathing. Mosca, Zamano, and appellant began cleaning up the blood that was on the floor using a roll of paper towels. Zamano told the others to leave and called his brothers to pick up Zamano and appellant. Later, Zamano's uncle took appellant to the hospital where he lied about his injury. The State presented evidence that Garcia was stabbed ten times and had multiple incised wounds on his face and hands. The wounds were consistent with being inflicted by both scissors and a second weapon, a knife. Brandon Curtis, who shared a jail cell with appellant, testified appellant described the fight with his friend and a "dude." Curtis testified appellant admitted stabbing the "dude" but maintained the "dead guy stabbed him," and appellant acted in self defense. At the conclusion of guilt/innocence, the trial court's charge authorized the jury to convict appellant of murder either individually or as a party. The jury found appellant guilty and sentenced him to forty-five years' confinement. This appeal followed. In his first issue, appellant argues the trial court erred in including a deadly weapon finding in its judgment. The charge authorized the jury to convict appellant either as a principal or as a party to the offense. Because the jury did not make an affirmative finding that appellant either used a weapon or knew a weapon would be used in the commission of the offense, appellant contends the trial court was not authorized to enter an affirmative finding of a deadly weapon in the judgment. This same issue has been previously addressed. See Sarmiento v. State, 93 S.W.3d 566, 567 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In Sarmiento, the court held that, where the use of a deadly weapon is an element of the offense, the State automatically carries the burden of proving the defendant knew a weapon would be used or exhibited in the commission of the offense. Id. at 570. The offense in Sarmiento was aggravated robbery, and the use of a deadly weapon was alleged in the indictment as an element of the offense. Id. Here, the offense charged was murder, and the indictment alleged two deadly weapons, a knife and scissors, were used to murder the victim. Thus, in this case the offense actually resulted in death and did not involve mere use of a deadly weapon during the commission of a robbery. Further, even as a party, appellant could not be convicted unless his participation was accompanied with the intent to promote or assist the commission of the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Before jurors were authorized to find appellant guilty, even as a party, they first had to believe beyond a reasonable doubt that appellant knew a deadly weapon would be used in the commission of the offense. Sarmiento, 93 S.W.3d at 570. By its verdict, the jury necessarily made the factual finding to support the entry of an affirmative finding of the use of a deadly weapon upon the judgment. See id. We overrule appellant's first issue. In his second issue, appellant argues the application paragraph which instructed the jury on his guilt as a principal did not require the jury to find that appellant caused Garcia's death by cutting or stabbing with a knife or scissors. Appellant did not raise this objection at trial. As a result, appellant's conviction will be reversed only if the record shows that the error was so egregiously harmful that appellant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Fails v. State, 999 S.W.2d 144, 148 (Tex.App.-Dallas 1999, pet. ref'd). The application paragraph of which appellant complains is as follows:

Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about the 21st day of February, 2003, in Dallas County, Texas, the defendant, JULIAN RAMIREZ, acting alone, did intentionally or knowingly cause the death of ANDREW GARCIA, or did intend to cause serious bodily injury to ANDREW GARCIA by committing an act clearly dangerous to human life, by stabbing or cutting ANDREW GARCIA, with a knife, a deadly weapon, or scissors, a deadly weapon, and did thereby commit an act clearly dangerous to human life by causing the death of ANDREW GARCIA, then you will find the defendant, JULIAN RAMIREZ, guilty of Murder, as alleged in the indictment.
Contrary to appellant's argument, our reading of this paragraph leads us to the conclusion that the jury was required to find that appellant caused Garcia's death by cutting or stabbing with a knife or scissors. We conclude this record does not show appellant was egregiously harmed by the inclusion in the charge of the above-quoted paragraph. See Almanza, 686 S.W.2d at 171. We overrule appellant's second issue. We affirm the trial court's judgment.


Summaries of

Ramirez v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 18, 2005
No. 05-04-00251-CR (Tex. App. Aug. 18, 2005)

concluding jury necessarily made deadly weapon finding by finding defendant guilty of murder as party or principal

Summary of this case from Dao Minh Truong v. State
Case details for

Ramirez v. State

Case Details

Full title:JULIAN RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 18, 2005

Citations

No. 05-04-00251-CR (Tex. App. Aug. 18, 2005)

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