### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00529- CR

Jua n An to nio Ra m ir e z , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 390TH JUDICIAL DISTRICT NO. 20302 30, H ONO RAB LE JULIE H. K OCUREK , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant, J uan Antonio Ramirez, g uilty of the off ense of murder. See Tex. P en. Code Ann. § 19.02( b)(1) (West 2003). Ramir e z ass ert s that th e e vid e nc e is f a c tua lly ins uf fi c ie nt t o s up po rt

his c on vic tio n. He a lso c on te nd s th a t th e dis trict cou rt erre d b y fa ili ngto clar ify its charg e on the issue of

voluntary intox ication during the g uilt-innocence phase of the trial

and by no t in str uc tin g the jur

y on vo luntary in toxic a tio n d

ur ingthe punis hme nt p ha se of the tr ia l. We w ill a ff

ir m th e jud g me nt o f t

he dis tr ic t c ourt
. BACK GR OUND On the eve ning of

J anuar y 16, 2003, Offic er Er ic B ilson of the Au s t in Poli ce Depa rtment responde d to a “nature unknown” call at 7508 Providenc e Ave nue. The call indicate d that so me on e may

have be e n in

jur e d. Up on

arr ivi ng at th e lo catio n, B ils on no tic e d a blo od tr a il2

leadingawa

y from the ope ned fr ont door of the r esidenc e. When other of fice rs arrived at the sce ne, Bilson enter ed the duplex, where he obser ved blood on the living room floor and on the c ouch. Af

ter deter mining that ther e wa s no one inside, B ilson beg an to rope off the a rea . A n o th e r o f f ic e r , Je f f r e y Pa g e , ar r iv e d a t t h e c r im e s c e n e im me d iate ly a f te r B ilson. He f irst noticed a body

ly ing on the g round across the stree t and went ove r to examine it. He observe d that the per son appea red d ea d an d that his shirt was cut and bloody . Pag e lef t another office r to take ca

re of the body , and then we nt inside the duplex to assist Bilson. The first thing he noticed inside wa s a l arg e butcher kni fe on the couch in the l iving room. A s econd knife was found in th e y ar d o u ts id e th e d

u p le x. As Bi lson returne d to his patrol car afte r sec uring the cr ime scene , a pickup truc k drove up to him. The two men inside, A ntonio Martinez and I ldiberto Var g as, told Bilson that they

wer e witnesses to the c rime. B ilson noti ced that the re was blood on the driver’ s side of the ve hicle, so he roped off the truck a s part of the crime sc ene a nd detained the witnesses. Mar tinez and Varg as tol d th e po lic e that Juan Ra mir e z wa s th e pe rp e tr a tor , a nd the po lic e be g an lo ok ingfo r h im. Offic er A ndrewWaters found Ra m irez later that nig ht. Waters was drivingto the crime sc ene a

nd noticed a pe rson matching Ramirez’s descr iption wa lking a long St. J ohn’s Avenue

. Waters drove p ast him, stopped, and then wa ited until R amirez walke d up to him. W ater s asked Ramir e z som e qu e sti on s, de te rm in ed that he mig ht b e int oxic a te d, and arr e ste d h im f

or pu bli c intox ication. Ramirez was take n to Bra ckenr idge Hospital where he wa s treate d for c uts on his right ha nd ; he ha d n o o the r i nju

ri e s. At approximately

1:30 a. m . , l es s t h an 9 0 m i n u t es af t er t h e i n ci d en tal l ege dly

occur red, De te c tiv e Do ug la s Sk ola

ut a rr ive d at th e c ri me sc e ne to i nv e sti g a te the ph y sic a l e vid e nc e . T he fi rs t3

piece o f evidenc e he e x amined wa s the pickup truck, a nd he docume nted the var ious spots on t he tr u c k w h e r e th e r e w e r e b lo o d dr o p s an d b lo o d s me ar s . H e a ls o d o c u me n te d b lo o d s me ar s on and around a n ea rb y

van. Skolaut next approache d the victim and observe d that he had be en stabbe d multipl e times in the che st area
. S kolaut also investigated the duplex and, based on the blood evidenc e inside, dete rmined that a violent incide nt had begun on the couc h in the living room. He also noticed e vidence that the occ upants of the duplex had been drinking alcohol, including a shot g l a s s an d a h a l f e mp t y b o t t l e o f

b r an dy. The victim was late r identi fi ed as Domingo Salg ado. An a utopsy conducte d on Salga do reve aled a

total of thirty -se v en differ ent stab wounds on his fac e, che st, ex tremities, and abdomen that ha d come f

rom sever al direc tions—front to back, downwar d, upwar d, to the left, and t o t h e r i gh t
. S ev er al o f t h e s t ab wo u n d s we n tt h ro u g h h i s h ea rt an d o n e o f h i s l u n gs . T o x i co l o gy tests were also conduc ted on Salg ado, and the y reve aled that his bl ood alcohol leve l was .24, which,

acc ording to th e t es t imony of medica l examiner Dr. Elizabeth Peac ock, mea nt that Salga do was “quite intox icated” at the time of his death. No other drug s were prese nt in his sy stem. A medica l examiner testified that the multiple stab wounds ca used Salg ado’s de ath. On Mar ch 2 6 , 2 003, Ramirez was cha rg ed with Salg ado’s murde r. A jury found Ramirez guilty and the district c ourt assessed his punishment at 60 y ear s’ confine ment. This appea l followed.

DI SCU SSIO N

I n four issues on a

ppeal, Ramire z asserts that: (1) the e vidence is factua lly in s u f f ic ient to s up po rt

his c on vic tio n; ( 2) the dis tr ic t c ourt fa il ed to su pp leme nt t

he jur y c ha rg e duri ngg uil t-4

in no cence to clari fy

the iss ue of

vo lun tary

int oxic a tio n; a

nd (3 ) a nd (4 ) t he dis tr ic t c ourt

e rr e d in failing to instruct or inform the jury during punishment on the issue of voluntary intox ication.

F actual suf

fi ciency Stan dard of rev iew

When there is a challeng e to the suff iciency of the e vidence to sustain a criminal conviction, the question presented is whether a rational trier of fac t could have f

ound the essential elements of the offe nse beyond a re asonable doubt. Zun iga v . S tat e , 1 4 4 S. W. 3 d

4 7 7 , 4 8 4 ( T e x. Crim. App. 2004) . I n a fa ctual suff iciency revie w, we c onsider all the e vidence equally , including the testimony of defe nse witnesses and the exis tence of alter native hy potheses. Or on a v . S

tat e , 836 S.W .2d 319, 3 2 1 (Tex. App.—Austin 1992, no pet.). We consider a ll the evidence , rig htly or wrong ly admitted. Se e Cam ar ill o v . S tat e , 82 S.W .3d 529, 537 (Tex. App.—Austin 2002, no pet.). Al tho ug h d ue defe re nc e sti ll mus t be a c c or de d th e fa c t- fi nd e r’ s d e te rm inatio ns , p art ic ula rl y tho se
c on c e rn ingthe we ig ht a

nd c re dib ili ty

of the e vid e nc e , we may

dis a g re e wi th t

he re su lt t o p re ve nt a manifest injustice. J

oh ns on v . S

tat e , 23 S.W .3d 1, 9 (Tex. Crim. App. 2000). We will deem the evidenc e fa ctually

insufficient t o s u s t ain t he convic tion if the proof of guilt is too weak or the contra ry evidenc e is too strong to support a finding of g uilt bey ond a re asonable doubt. Zuniga , 144 S.W .3d at 484-85. Application

To prove Ramirez guilty of murder , the S tate wa s require d to prove be y ond a

rea sonable doubt that Ramirez intentionally or knowing ly cause d the death of Salg ado. Te x . Pen. Code Ann. § 19.02(b) (1) ( West 2003).5 Two witnesses, Ma

rtinez and Var g as, both testified to se eing Ramirez attack, c hase,

an d s ta b Sa lg a d o mu lt ip le ti me s w it h a kn if e . Ra mi r e z c o n te n d s , h o w e v e r , th a t “ th e p h y sical

e vid e nc e do e s n ot c on fo rm to t he te sti mony

of the [S ]t a t e ’s wi tne sse s. ” Spe c if

ic a lly , Ra mir e z as se rt s t h a tt h e r e ar e i n c o n s i s t e n c i e s i n t h e t e s t i m o n y o f M art i n e z an d

V ar g a s a n d t h a th i s o w nt e s t i m o n y, sug g esting that he stabbe d the vi ctim in self-de fense , is more consistent with the phy sical evide nce. The testimony of Martinez and Vargas Martinez and Va

rg as testified that on the nig ht of the off ense, they wer e socia liz ing at a duplex with three c o-worke rs: Ramirez, Salga do, and a m an n am ed Tomas. All but Varg as lived toge ther in the duplex and would often socia liz e and dr ink there a fter w ork. On this particula r evening , Ramirez, Salga do, and Tomas we re dr inking br andy . Salga do and Tomas we re mixi ng the brandy with cola, but Ramirez was drinkingit “straig ht.” A r o u n d mi dn ig h t, th e me nw e r e in th e li v in g r o o m a

n d s ti ll dr in k in g . Ra

mir e z, Salga do, and Tomas beg an having a discussion about who could drink the m ost. The disag ree ment

esca lated into a fight. Salga do challeng ed R amirez to drink more, but Ramirez repe atedly ref used. S al gad o ev en tu a l l y s t o o d u p an d k i ck edR am i re z i nt h e f

o o t
. R am i re z re s p o n d edb y “j u mp i n g” Salga do and hi t t i n g h i m with his fist. Martinez gra bbed Ramirez and Va

rg as g rabbe d Salga do, separ ating the two. Salg ado sat down on the couch w hile Ramirez went into the kitchen, whe re he

re tr ie ve d tw o k

niv e s. He e me rg e d f

ro m th e kit c he n w itha

kn if e in e a c h h and . Varg a s tr ie d to c a lm him do wn , b ut Rami rez att e mpt e d to sta b V arg a s, wh o th e n r an o uts ide and so ug ht s a fe ty

in h is truck. Tomas a lso ran outside. Ramirez the n lunge d at Salga do and stabbed him in the chest seve ral6

times. Martinez y elled at Ramire z to s top and y elled at Salga do to run. S alg ado wa s able to run out of the duplex, but Ramirez chased af ter him with at least one knif e still in hi s hand. Martinez then ran outside and watc hed as Ramire z continued to chase Salg ado, who was runningaround the parkinglot try ing to e scape . Martinez continued to y ell at Ramirez to stop, but to no avail. At one point, Salga do attempted to get in the t ruck with Var g as, but he didn’t have enoug h time beca

use Ramirez was too close behind him. As he wa s chasing S alg ado ar ound Va rg a s’ s tr uc k, Ramir e z tr ie d to sta

b at Varg a s thr ou g h the wi nd ow . Ramir e z the n be g an to c ha se Martinez, but Martinez jumped in the bed of Va rg as’s truc k, whi ch wa s still parke d outside the duplex. Ramirez resumed his pursuit of Salga do, and eve ntually caug ht him. S alg ado

c oll a ps e d o n th e g ro un d a

nd Ramir e z kn e lt i n f

ro nt o f h im, sta

bb inghim repe ate dly . E ve ry tim e Salga do would try

to ge t up, Ramirez would knock or ki ck him down and start s tabbing him ag ain. Finally , Ramirez kicked Salg ado “w ith every thing he had” a

nd Salga do did not ge t up. At this point Martinez and Va

rg as drove awa

y . They returne d when the police arr ived. Ramirez asserts that there ar e some inconsistenc ies in the testimony of Mar tinez and Var g as. F irst, b o t h Martinez and Va rg as testified that Ramire z was holding more than one knife when he was c hasing Salga do outside the duplex. Howeve r, the police found only one knife outside the duplex; t he police f

ound the other knife on the couc h in the living room. This f act sug g ests the possibili ty

that Ramirez was holding only one knife when h e wa s chasing Salg ado. Another inc on sis te nc y

re la te d to how the po lic e we re no tif ie d a bo ut t he c ri me —V arg a s te sti fi e d to us inghis cellular phone to call the police, while Martinez testified t hat he called his wife from a Home Depot

so that sh e c ou ld c a ll the ow ne r of the du ple x, wh o wo uld c a ll the po lic e . A thi rd inc on sis te nc y is7

the seque nce in whic h Var g as and Ma rtinez ran out of the duplex . Martinez testified that he wa s the la st p e rs on

to l e a ve , w hil e Va

rg a s te sti fi e d th a t Ma

rt ine z ra n o ut i mme diate ly

a ft e r h im. We conclude, how ever , that a rational jury could find that these inc onsistencies had no bear ing on the ultimate issue of whether Ramirez murder ed Salg ado. Mar tinez and Varg as we re consist en t on the fa cts that wer e esse ntial to the State’s char g e—both testified to see ing Ramirez attack, c hase, a

nd stab Salg ado multiple times with a knife. Fur thermore , the ver sion of

th e f a c ts p r e s e nte d

b y M a r ti n e z a n d Var g as wa s consistent with the phy sical evide nce obta ined at the crime scene . Martinez and Var g as testified that Ramirez chase d Salga do around Var g as’s truck and other vehicles; blood wa s found ar ound Var g as’s truc k and other vehicles. Martinez and Var g as testified that Salga do ran to a g rassy are a whe re Ramire z proce eded to sta

b him multiple times; the police found Salga do’s body on the g round in the are a they descr ibed. Also, the blood evidenc e fo und in the duplex was consistent with their testimony that Ramirez’s attack on Salga do beg an on the couch. Finally , a medica l examiner testified that Salg ado was stabbe d multipl e t i m es from var ious directions, which is consistent with their desc ription of Ramirez’s repe ated stabbing s of Salg ado. The testimony of Ramirez Ramir e z te sti fi e d in his own de fe ns e , a

nd pr e se nte d a

dif fe re nt v e rs ion

of the e ve nts
. Acc ording to Ramirez, the i ncident bega n when Salgado slapped Tomas in t he fa ce. B efor e Salg ado and Tomas c ould start fig hting e ach othe r, Va rg as, Mar tinez and Ramirez separated the two. Af ter

e ve ryon e ha d settle d dow n, To ma s beg an pro vo kin g Sa lg a do

. Va rg a s, Ma rt ine z, and

Ramir e z ag a in attempted to def

use the situation. Salga do, howeve r, g ot up to fight Tomas, and Ramirez had to g rab8

him to prevent anothe r alter cation. After this, accor ding to Ramire z, Tomas went to the bathroom and Salg ado we nt to the kitchen.

Salga do then ret u rn ed to the living r oom with his hands behind his back. Unbeknownst to Ramirez, Salg ado was holding a knife . Ramirez testified that Salga do attempted to stab him in t he bac k, but the knife only g razed him

. Ramirez then fell to the floor, and Salga do attempted to stab him ag ain. Ramirez put his hands out to defend himself, a n d S al gado cut Ramir e z’s ha

nd . Sa lg a do the n fe ll ont o the c ou c h a nd Ramir e z lun g e d at hi m and str ug g le d w ithhim for the knif

e. While Salgad o wa s s t i l l h olding the knif e, Ramirez turned it towar d Salga do and sta b b e d h im in th e s to ma c h

. Ra mi r e z th e n s aw M a

rti n e z an d V ar g a s r

u n o u t o f th e d

uplex, but Ramirez never

saw Tomas l ea v e t he bathr oom. Ramirez testified that he then lef t the duplex and walked for sever al blocks. He wa lked aimlessly in differ ent direc tions and at one point sat down on

a pa rk be nc h to c a lm hims e lf do wn . He did no t kn owho w l on g he wa s si tti ngthe re . H e e ve ntu a lly

re su me d w a lki ng , at w hic h ti me he e nc ounte re d O ff ic e r Wate rs . On cros s- e xami natio n, Ramir e z te sti fi e d th a t he on ly sta bb e d Sa lg a do tw ic e , b oth times in self-de fense , and he speculated that Tomas murdere d Salga do afte r Ramirez and the othe rs
we re g one. Ra mi rez als o ass e rt s in his br ie f t

hat T oma s h a d a

mot ive to “ fi nis h o ff

” the vic tim , p r e s u ma b l y b e c a u s e S a l g a d o w a s p r o v o k i n g T o m a s i nt h e s a m e w ay h e w a s p r o v o k i n g R a m i r e z. Howeve r, other tha

n Ramirez’s testimony , there is no evidenc e in the re cord sug g esting that Tomas had any thing to do with Salg ado’s murde r. Martinez even testified that Tomas ig nored Salg ado and told him t hat “I

drink what I

can dr ink.” Ramirez claims that his version of the e vents more acc u ra t el y confor ms to the phy sical evide nce. We disa g ree . The only piece s of evidenc e that could possibly support his theory9

of self- defe nse ar e State’s Exhibit s 110 and 111, which show c uts to Ramirez’s hand. Howeve r, the cuts on Ramirez’s hand we re just as c onsistent with the St ate’ s theory that Ramirez’s hand slipped onto the blade of

the kni fe a s he stabbed Salg ado. The exhibi ts establish only that appellant wa s injured duringthe incident—they do not establish how he wa s injured. Much of the other phy sical evidenc e—the blood tra il leading awa y from the duplex, the blood f ound around Var g as’s truck a nd the surroundingvehicles, the location of Salg ad o ’s body , and the multiple stab wounds from dif fe re nt d ir e c tio ns in d if

fe re nt l oc a tio ns on Sa lg a do ’s bo dy —d oe s not sup po rt

the ve rs ion

of e ve nts d e s c r ib e d b y Ra mi r e z. I t is the ex clusive province of the jury to determine w hether Ramirez’s version of the events is more or less cre dible than the version prese nted by Martinez and Va

rg as. See J

ohnson v. Sta te , 23 S.W. 3d

1, 9 ( Te x. Cr im. Ap p. 20 00 ); Pe nagrap h v . S tat e , 6 23 S.W. 2d

34 1, 34 3 ( Te x. Cr im. App. 1981). The re is nothing in the record to sug g est that it was irrational for the jury to rejec t the te sti mony of Ramir e z an d a c c e pt t

he te sti mony

of Ma rt ine z an d V arg a s. Con sid e ri nga ll the e vid e nc e in a ne utr a l li g ht, the jur

y wa s rati ona lly

jus tif ie d in finding g uilt bey ond a re asonable doubt. Zuniga , 1 44 S.W. 3d a t 484 We ove rr ule Ramir e z’s fi rs t issue.

Ins tr uc ti on o n vo lunt ar y in to xic at ion in g uilt -i nnoc e nc e phas e

I n his second issue, R amirez asser ts that during the g uilt-innocence phase of trial the district court er

red in fa iling to supplement the jury char g e to clar ify

an alleg ed inconsistency

in the ins tr uc tio ns .10 The jury was a ppare ntly confuse d about w h et her it could c onsider voluntary intox ication when de termining Ramirez’s culpability

. The char g e stated in r eleva nt pa rt: “You a re further instructed that voluntary in t o x ication does not constitute a de fense to the commission of a crime

. ‘ I n to xic a ti o n ’ me an s d is tu r b an c e o f me n ta l o r p h y s ic a l c a p a c it y r e s u lt in g from the introduction of any

substance into the body .” I t also instructed the jury reg ardingculpa b i l i t y : “A person a cts knowing ly , or with knowledg e, with respe ct to a re sult of his conduct when he is awar e that his conduct is rea sonably cer tain to cause the re sult.” Du r in g it s d e li b e r a ti o n s , th e ju r y s e n t a n o te to th e c o u rt c o n ta in in g the following question:
There is evidence sug g esting the defe ndant’s intox ication, perha ps to the point of the defe nd ant b e ingun awa

re of c on se qu e nc e s o f h is a c tio ns . Y e t w e ’r e un a ble to consider voluntar

y intox ication as a

defe nse. This seems c ontradiction t o some and we ha ve the que stion how do we consider possible awar eness impairme nt and at the same time not consider

it (becau s e o f its being cause d by voluntary

intox ication)? [si c] The jury rec eived the following answe r: “The Court refe rs y ou to the Charg e, which c ontains all of the law the Court c an leg ally provide to you in this case . You are bound by the instructions that are

c on ta ine d in the Court ’s Cha rg e .” Ramir e z a sse rt s in his bri e f t hat it wa s e rr or fo r t he c ourt no t to clar ify the “inher ent inconsistency” in the cha rg e. Ramirez failed to pre serve this complaint. At trial, he neither soug ht clarific ation of the portion of the c ourt’s cha rg e addre ssing voluntary intox ication, nor did he obje ct to the cour t’s instruct i o n i n response. We will, t here fore , reve rse the judg ment only if the cha rg e wa s incorre ct and re sulted in eg reg ious harm. Pi c k e ns v . S tat e , 1 6 5 S. W. 3 d 6 7 5 , 6 8 0 ( T e x. Cr im. App. 2005);11

Al ma nz a v . S

tat e , 686 S.W .2d 157, 1 7 1 (Tex. Crim. App 1984). The cha rg e ac curately

trac ks the lang uag e of the penal c ode, see Te x. Pe n. Cod e Ann. § 8 .0 4( a ) ( Wes t 20 03 ), and the re is n oth ingin the re cord to supp o rt a finding that, in this case, tra cking the lang uag e of the penal c ode wa s insufficient. We over

rule Ramire z’s second issue.

Ins tr uc ti on o n vo lunt ar y in to xic at ion dur ing punis hm e nt phas e

I n his third and fourth issues, Ramirez asser ts that the district c ourt err ed in fa iling to i ns tr uc t or inf or m the jur y re g ard ing vo lun tary int oxic a tio n dur ing the punis hme nt p ha se of tr ia l. During the cha

rg e conf ere nce at the punishment phase of the t rial, Ramirez reque sted an instruction on voluntary intox ication pursuant to sec tion 8.04(b) of the pe nal cod e , wh ic h p rovides that “ e vid e nc e of

te mpo ra ry ins anit y c a us e d b y int oxic a tio n m ay be in trod uc e d b y the a c tor in mitigation of the pe nalt y at t ac h ed to the offe nse for which he is be ing tr ied.” Id . § 8.04(b). The district court denie d Ramirez’s reque st, but infor med him that he was f

ree to argue that “intoxication

may be mit ig a tio n” in h is c los ingargume nt.

When temporary

insanity is relied upon as a

defe nse and the evidenc e tends to show that such insanit y wa s ca u s ed by intox ication, the cour

t shall charg e the jury

acc ording ly

. Id . at § 8.04(c). To be e ntitled to such an instruction, howeve r, the e vidence must show that the intox ication re ndere d the def endant tempor arily

insane in that (1) he did not know hi s conduct wa s wrongor (2) he was incapa ble of confor

ming his conduct to the l aw. Cordova v. State, 733 S.W .2d 17 5, 19 0 ( Te x. Cr im. Ap p. 19 87 ); Sh e lto n v . S tat e , 41 S.W .3d 208, 213 (Tex. App.—Austin 2001, pet
. re f’ d ). Evidence that the def endant wa s intox icated at the time of the off ense doe s notRamir e z, Ma rt ine z, and

Va rg a s a ll t e sti fi e d th a t Ramir e z ha d b e e n d ri nk ing th at ni g ht. 1 Al so , O ff ic e r Wate rs te sti fi e d th a t Ramir e z ap pe are d intoxic a te d w he n h e arr e ste d h im. T h e o n l y e v i d e n c e i n t h e r e c o r d e v e n s u g g e s t i n g t h a t R a m i r e z m i g h t h a v e b e e n “ c r a z y” 2 c a me in d ur ingthe c ro ss- e xami natio n o f V arg a s: Q: One of the things that in talking a bout this i ncident that y ou told the police was that whe n y ou saw Juan stab Domingo i n t h e ro o m, y ou saw that he continued to stab him, you told the police that y ou saw that y ou thought like [ R a m i r e z ] h a d

g o n e c r a z y. A: Well, y eah. I

would talk to him, and how do I s ay i t , he wouldn’t pa y a t t e n t i o nt o a

n yb o dy. Q : H e d i dn ’ tr e s p o n d

t o an yb o dy? A: No. Q: And y ou thought that, you know, he wa s g oing to try to kill all of y ou? A: Well, y eah. Howeve r, evide nce that Ramirez may have been “cra zy drunk” at the t ime of the off ense doe s not entitle him to an instruction on tempora ry insanity

. Se e Cor

do v a v . S tat e , 7 3 3 S. W. 2 d 1 7 5 , 1 9 0 ( T e x. Crim. App. 1987). Ramirez ne eded to pr esent evidenc e that he did not know his c onduct was wr ong or that he w as inca

pable of confor ming his conduc t to the law. Id . He f ailed to do so. 12 automatically entitle him to a mitigation inst ruction at punishment. Mi nie l v . S tat e , 831 S.W .2d 310, 32 0 ( Te x. Cr im. Ap p. 19 92 ); Shelton , 41 S.W .3d at 213.

To prove te mporary

insanity by intox ication, a d ef

en dant has to show more than intox ication; he has to prese nt evidenc e that either the intox ication made him unaw are that what he was doing was wr ong , or it made him incapa ble of confor

ming his conduct to the law

. See Cordova , 733 S.W .2d at 190. Ramirez prese nted evidence of intox ication, but he failed to prese nt evidence 1 that, beca u s e of his intox ication, he did not know his conduc t was wrongor he w as inca pable of

c o n f o r m i n g h i s c o n d

u c tt o t h e l a w . B e c a

u s e h e f a i l e d t o p r e s e n te v i d e n c e o f

t e mp o r ar y i n s a n i t y, 213

Ramir e z wa s n ot e nti tle d to a mit ig a tin g ins tr uc tio n on volu

nta ry int oxic a tio n dur ingpunis hme nt. We o ve rr ule Ramir e z’s thi rd

and fo ur th i ssu e s.
CO NC LU SION Havingoverr

uled all of Ramire z’s issues on appeal, we aff irm the judg ment of the dis tr ic t c ourt
.

Bob Pembe rton, J ustice Be fore J ustices B . A. Smith, P ury ear and Pember

ton Affir med Filed: Apr il 21, 2006 Do No t Pu

bli sh