COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

 Appellant,

v.

LUIS RAMOS,

 Appellee.

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No. 08-13-00279-CR

Appeal from the

409th Judicial District Court

of El Paso County, Texas

(TC# 20110D01868)

O P I N I O N

The State of Texas seeks reversal of the trial court’s order granting a new trial to Luis 

Ramos, who was acquitted of murder but convicted of aggravated assault arising out of a 

stabbing incident. Ramos’ only defense at trial was self-defense. In one issue, the State 

contends that rendition of these apparently inconsistent verdicts is not proof that the jury 

believed Ramos’ self-defense claim, and that verdict inconsistency does not justify acquittal or a 

new trial grant on the aggravated assault charge when the evidence underpinning that charge was 

legally sufficient. We agree, and reverse and reinstate Ramos’ conviction. 

BACKGROUND

Factual History

On November 20, 2009, Ramos, his wife Jessica, their children, and Ramos’ friend 
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Manny Rodriguez attended a party hosted by Jessica’s friend Fernanda Anguiano at her home on 

5012 Sagittarius Avenue in Northeast El Paso. Anguiano’s then-boyfriend Samuel Reynosa was 

also present at the house with his cousin Angel Garcia and his brothers Jose “Tudie” Reynosa 

and Adrian Reynosa.

Samuel Reynosa testified that about fifteen people showed up to the party. He admitted 

to smoking marijuana and drinking alcohol with others at the get-together. About an hour after 

the Ramos’ arrival, Samuel and Anguiano began asking people to leave because Fernanda had 

been drinking and felt bad. Samuel then left to pick up items at a nearby 7-11. He testified that 

as he entered the house while Ramos was leaving, he told Ramos to watch out. Ramos accused 

Samuel of trying to “punk him.” Ramos’ friend Manuel Rodriguez testified that Samuel had 

pushed Ramos as he passed and swore at him, and that Ramos sarcastically replied “excuse me.” 

Rodriguez further testified that exchange prompted expletive responses from Samuel and Adrian, 

with Adrian throwing a punch at Rodriguez. Adrian Reynosa testified that Manny Rodriguez 

threw the first punch after the argument started, striking him in the jaw. This exchange between 

Adrian Reynosa and Manny Rodriguez set off a fistfight with the Reynosa brothers and Garcia 

on one side and Ramos and Rodriguez on the other. Garcia and Adrian Reynosa fought Manny 

Rodriguez, and Samuel and Jose Reynosa fought Ramos. During this fight, no one used any 

weapons.

The fight briefly died down, but within a short period of time, a second fight broke out in 

the street outside the yard. The evidence is disputed as to who started the second fight. Samuel 

Reynosa testified that Ramos started the fight by punching him above the left eye as Samuel tried 

to shepherd everyone back toward the house. Ramos’ wife Jessica testified that one of the 

Reynosas started the second fight by hitting Rodriguez.
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The evidence is also disputed as to whether Ramos was the only person carrying a knife 

or a weapon. Jessica Ramos maintained at trial that she saw Samuel Reynosa swinging a knife at 

her husband during the fight. Samuel Reynosa testified that he did not grab a steak knife until 

after the fight had finished, and that all he did with it was throw it at Ramos’ truck as he fled 

after the fight. Manuel Rodriguez testified that Angel Garcia also had a kitchen knife as he 

moved toward Ramos. Adrian Reynosa admitted that he was carrying a blue Azteca vodka bottle 

when he came back from the store and the first fight started, but denied using it as a weapon. He 

also testified he only threw another bottle with a yellow cap at Ramos’ truck. Rodriguez stated 

that Adrian Reynosa used a bottle to hit Ramos during the second fight. Samuel Reynosa 

initially testified that it was Rodriguez who broke a bottle and used it as a weapon, but admitted 

on cross-examination that he had not seen either Ramos or Rodriguez use a bottle as a weapon. 

Adrian Reynosa testified that as the second fight got underway, three men pushed Ramos 

away from his truck and his family and into the intersection. Adrian attacked Ramos when he 

saw Ramos moving behind the truck toward Garcia. Ramos struck Adrian, who fell. Eventually, 

Ramos and Garcia were the only two combatants left fighting in the street.

Samuel Reynosa testified that as Ramos and Garcia fought, Ramos swung an object in his 

hand twice at Garcia. Garcia then ran toward Samuel, bleeding from his neck and saying that he 

had been stabbed. Adrian and Jose Reynosa confirmed that they saw Garcia had been stabbed 

after fighting one-on-one with Ramos. Jessica Ramos testified that as soon as the fight ended, 

her husband ran in the house to get their child, buckled her into her seat in the truck, and they all 

returned back to their apartment. Police later found the knife used in the stabbing at Ramos’ 

apartment.

Garcia died of a transectional cut across the trachea. El Paso County Chief Medical 
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Examiner Dr. Juan Contin testified that a toxicology screening showed a .145 blood-alcohol 

concentration and marijuana metabolites in Garcia’s blood, with another screening done at 

William Beaumont Army Medical Center showing a blood-alcohol concentration of .21.

Procedural History

The State indicted Ramos on one count of murder. Ramos requested and received jury 

instructions on the law of self-defense, defense of third parties, and duty to retreat. Before the 

trial court submitted the case to the jury, the State also received, over objection, a lesser-included 

offense instruction on aggravated assault by threat.

The jury returned verdicts of not guilty on the murder count, but guilty on the aggravated 

assault count, assessing punishment at 15 years’ in prison. Ramos moved for a new trial and to 

arrest the verdict. See TEX.R.APP.P. 22.1. The trial court initially denied Ramos’ request for a 

new trial. However, it later reconsidered its ruling sua sponte, granting Ramos’ new trial request 

and entering a judgment of acquittal.1 The State appealed.

DISCUSSION

The State maintains that the trial court abused its discretion in granting a new trial when 

it had no legal justification for doing so. Ramos counters that the trial court could have granted a 

new trial when the jury returned inconsistent verdicts that showed it believed his self-defense 

argument, but erroneously convicted him of aggravated assault anyway. Ramos also asserts that 

we can uphold the trial court’s new trial grant on the basis that the lower court erred in 

submitting a State-requested lesser-included offense instruction. We find no serious flaws that 

 

1 The trial court sentenced Ramos on June 28, 2013. It initially denied Ramos’ motion for new trial on September 9, 

2013, before rescinding its prior decision and ordering a new trial on September 11, 2013. Trial courts possess the 

plenary power to “rescind a prior order granting or denying a new trial for up to seventy-five days after sentencing.” 

State v. Barron, No. 08-12-00245-CR, 2014 WL 505497, at *2 (Tex.App.--El Paso Feb. 7, 2014, pet. ref’d)(not 

designated for publication). Here, the trial court’s plenary power expired on September 12, 2013—the seventy-sixth 

day after sentencing.
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would justify the new trial grant.

Standard of Review

We review the trial court’s new trial ruling for abuse of discretion. State v. Herndon, 215 

S.W.3d 901, 906 (Tex.Crim.App. 2007). A trial judge “cannot grant a new trial on mere 

sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is 

innocent or received a raw deal.” Id. at 907 [Internal quotation marks omitted]. Instead, even 

where a defendant urges a new trial on interest of justice grounds, “[a] motion for a new trial, 

whether for guilt or punishment, requires a valid legal claim.” State v. Thomas, 428 S.W.3d 99, 

107 (Tex.Crim.App. 2014). “To grant a new trial for a non-legal or legally invalid reason is an 

abuse of discretion.” Herndon, 215 S.W.3d at 907.

The trial court must grant the defendant a new trial for any of the reasons articulated in 

TEX.R.APP.P. 21.3, including “when the verdict is contrary to the law and the evidence.” 

TEX.R.APP.P. 21.3(h). “The trial court retains the discretionary power to grant a new trial for 

any legal reason not listed in TEX.R.APP.P. 21.3.” State v. Vigil, No. 08-13-00273-CR, 2015 WL 

2353507, at *3 (Tex.App.--El Paso May 15, 2015, no pet. h.)(not designated for publication). 

While “[t]he defendant need not establish reversible error as a matter of law before the trial court 

may exercise its discretion in granting a motion for new trial[,] . . . trial courts do not have the 

discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously 

flawed and that the flaws adversely affected his substantial rights to a fair trial.” Herndon, 215 

S.W.3d at 909. The Court of Criminal Appeals has declined to set bright-line rules for the 

appellate courts to use in assessing the trial court’s exercise of discretion on a ground not 

enumerated in TEX.R.APP.P. 21.3, but the Court has suggested that “a trial court would not 

generally abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a 
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valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the 

trial record that substantiated his legal claim; and (3) showed prejudice to his substantial rights 

under the standards in Rule 44.2 of the Texas Rules of Appellate Procedure.” Herndon, 215 

S.W.3d at 909.

Analysis

Ramos’ defense of the new trial grant on appeal rests heavily on Alonzo v. State, 353 

S.W.3d 778 (Tex.Crim.App. 2011). Ramos argues that Alonzo stands for the proposition that 

when a defendant pleads self-defense and the jury believes his self-defense claim, it cannot 

acquit the defendant of murder but still convict him of aggravated assault. As such, the trial 

court was justified in ordering a new trial here in light of inconsistent verdicts that indicated the 

jury believed his self-defense argument.

In Alonzo, the defendant was charged with murder arising out of a stabbing incident in a 

prison. The defendant claimed self-defense, and the jury charge included instructions on the 

lesser-included offenses of manslaughter and aggravated assault. Id. at 779-80. During 

deliberations, the jury, by note, asked the trial court two questions: (1) “If we find ‘not guilty’ of 

count 1 murder by reason of self-defense does that preclude us from considering the 2 lesser 

offenses in count 1?;” and (2) “Can self-defense be applied to all 3 offenses in count 1? i.e. can 

‘self-defense’ be used as a reason for finding ‘not guilty’ to the 2 lesser included offenses in 

count 1?” Id. at 780. In response, the trial court stated that if the jury believed self-defense as to 

the murder charge, they could still consider convicting on the lesser-included offenses of 

manslaughter and aggravated assault. Specifically, the trial court responded: “In response to 

your question: Self–Defense does apply to Murder. Self–Defense does not apply to 

Manslaughter. Self–Defense does not apply to Aggravated Assault if the jury finds the 
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defendant committed Aggravated Assault recklessly.” Alonzo, 353 S.W.3d 780. [Emphasis in 

original]. The jury convicted the defendant on manslaughter, but acquitted on murder. The 

Corpus Christi Court of Appeals affirmed his conviction. Id. 

On discretionary review, the Court of Criminal Appeals held that the trial court should 

have instructed that jury that if it believed the defendant’s self-defense claim, it should acquit 

him on the lesser-included offense as well, since the defendant presented a justification defense 

that was applicable to offenses generally, and not merely those requiring a knowing or 

intentional mens rea. Id. at 783.

Ramos correctly states the legal precept handed down in Alonzo: if the jury believes the 

defendant’s self-defense argument, then his actions were justified as to both murder and 

aggravated assault. However, the issue here is whether Ramos’ acquittal for murder indicated 

that the jury made an implicit finding he acted in self-defense. Ramos maintains that such a 

conclusion is inescapable under these facts, since his entire defense rested on admitting to the 

charged conduct, but arguing his actions were justified. See Stoltz v. State, No. 08-10-00048-CR, 

2011 WL 3199337, at *4 (Tex.App.--El Paso July 27, 2011, pet. ref’d)(not designated for 

publication); Meadows v. State, No. 08-05-00394-CR, 2007 WL 1651324, at *10 (Tex.App.--El 

Paso June 7, 2007, no pet.)(not designated for publication)(cases stating that self-defense is a 

justification defense predicated on a tacit admission to otherwise criminal conduct). As such, the 

only logical way for the jury to acquit him for murder would be to find he acted in self-defense, 

and that self-defense finding should have collaterally estopped an inconsistent conviction on the 

lesser-included offense of aggravated assault per Alonzo.

The State points us to a contravening line of federal authority holding that appellate 

courts should not read implicit special findings into conflicting, logically irreconcilable general 
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verdicts in criminal trials and then use those implicit findings to issue-preclude acquittals on 

other counts. In those cases, the Supreme Court acknowledged that even where inconsistencies 

in a verdict suggested the jury made a mistake or engaged in “compromise,” appellate courts 

should not overturn the jury’s decision based on speculation over what the jury’s general verdict 

truly meant. United States v. Agofsky, 516 F.3d 280, 283-84 (5th Cir. 2008)(summarizing history 

of U.S. Supreme Court cases Dunn v. United States2and United States v. Powell3dealing with 

inconsistent verdicts). Instead, the appellate court should review each charge individually for 

legal sufficiency and affirm if the evidence supporting the charge is sufficient. Id. The rationale 

articulated for this rule is that it is impossible to speculate on whether the windfall from an 

inconsistent verdict helped the government or the defendant; while the jury may have thought the 

prosecution overreached but convicted because they thought the defendant was guilty of 

something, it could also be that the jury exercised lenity and the prosecution is precluded from 

seeking review of an erroneous acquittal. Powell, 468 U.S. at 65, 105 S.Ct. at 477. Inability to 

determine what happened in the jury room from the face of a general verdict, coupled with 

evidentiary rules prohibiting inquiry into the jury’s thought processes, make consistent review of 

inconsistent verdicts unworkable. Id. Consequently, an appellate court should limit itself to 

reviewing the conviction standing alone under the ordinary legal sufficiency standard. Id. at 67, 

105 S.Ct. at 478.

We note that this approach has met with resistance over the years in the federal courts of 

appeals, see Agofsky, 516 F.3d at 283-84 (noting that Powell reaffirmed the Dunn rule because 

courts of appeal tried to erode its application), and with criticism from the academy. See 

generally Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent 

 

2

284 U.S. 390, 391-92, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932)

3

469 U.S. 57, 69, 105 S.Ct. 471, 479, 83 L.Ed.2d. 461 (1984)
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Verdicts, 111 HARV.L.REV. 771, 794-820 (1998)(criticizing the lenity, equity, and state inability 

to appeal rationales underpinning Powell). We also note that the United States Supreme Court’s 

holding in Powell was non-constitutional and rested on the high court’s “supervisory powers 

over the federal criminal process,” meaning that Powell’s holding is not binding on the states. 

See Powell, 469 U.S. at 65, 105 S.Ct. at 477. Although a large majority of states follow the 

federal approach to this issue, a minority of states have read their state law as providing 

defendants more protection against such inconsistent verdicts than that under federal criminal 

process. See, e.g., Travis v. State, 98 A.3d 281, 303 (Md. 2014); People v. Muhammad, 959 

N.E.2d 463, 467-68 (N.Y. 2011); State v. Halstead, 791 N.W.2d 805, 814 (Iowa 2010); Brown v. 

State, 959 So.2d 218, 220-221 (Fla. 2007); DeSacia v. State, 469 P.2d 369, 375, 378 (Alaska 

1970)(pre-Powell).

Neither side offers any authority from the Texas Court of Criminal Appeals on how 

Texas courts should approach this issue, nor could we find any Court of Criminal Appeals cases 

directly on point in our research. The Court of Criminal Appeals has cited Powell only one time 

in passing in Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004), overruled by Watson 

v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006). There, the State complained that “the Court of 

Appeals should not have used any purported inconsistency in the jury’s verdicts as support for its 

holding that the evidence of appellant’s guilt was factually insufficient.” Zuniga, 144 S.W.3d at 

481. The Court of Criminal Appeals did not discuss Powell in depth and instead only reviewed 

the trial evidence under the now-abrogated factual sufficiency standard. Id. at 485-87. 

However, this Court previously followed the federal approach in Viera v. State, No. 08-

10-00332-CR, 2012 WL 4101904 (Tex.App.--El Paso Sept. 19, 2012, pet. ref’d)(not designated 

for publication), cert. denied 134 S.Ct. 267, 187 L.Ed.2d 150 (2013). We did not expound upon 
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our rationale for following the federal approach in Viera, but absent further guidance from the 

high court on this issue, we will follow our previous approach—and that of our sister courts—

and look to see only if there was sufficient evidence to support an aggravated assault conviction. 

See Williams v. State, No. 03-11-00598-CR, 2013 WL 6921489, at *6 (Tex.App.--Austin 

Dec. 31, 2013, pet. ref’d)(mem. op., not designated for publication), cert. denied 135 S.Ct. 103, 

190 L.Ed.2d 83 (2014); Moore v. State, No. 04-12-00490-CR, 2013 WL 3148650, at *1 

(Tex.App.--San Antonio June 19, 2013, pet. ref’d)(mem. op., not designated for publication); 

Dulaney v. State, No. 10-08-00152-CR, 2010 WL 486742, *1 (Tex.App.--Waco Feb. 10, 2010, 

pet. ref’d)(mem. op., not designated for publication); Green v. State, 233 S.W.3d 72, 84 

(Tex.App.--Houston [14th Dist.] 2007, pet. ref’d); Ward v. State, 113 S.W.3d 518, 522-23

(Tex.App.--Houston [1st Dist.] 2003, pet. ref’d); Jackson v. State, 3 S.W.3d 58, 60-62 

(Tex.App.--Dallas 1999, no pet.); Ward v. State, 938 S.W.2d 525, 528 (Tex.App.--Texarkana 

1997, pet. ref’d); Ruiz v. State, 641 S.W.2d 364, 366 (Tex.App.--Corpus Christi 1982, no pet.).

We acknowledge that this case is arguably distinguishable because unlike other 

inconsistency cases, in which a jury viewing a shared set of facts could chose to convict for some 

crimes and not others based on its lenity powers, this case involves an affirmative defense that 

would justify all the crimes charged and not merely murder. That being said, we still cannot say 

for certain whether the jury’s verdict actually rested on an implicit self-defense finding, even 

under the unique circumstances presented. It would seem anomalous to us that a jury would 

convict on one charge and not another when a defendant essentially admits to the conduct but 

claims self-defense. Then again, it is possible the jury believed the State proved the elements of 

aggravated assault by threat, but not murder. It is also conceivable that the jury could have 

disbelieved Ramos’ self-defense claim and found that legally sufficient evidence underpinned 
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both the murder and aggravated assault charges, but then chose the nullify the murder conviction. 

Powell suggests that such an act of lenity is a permissible jury function that should be insulated 

from appellate review. See Powell, 469 U.S. at 58, 105 S.Ct. at 473 (noting that courts 

recognized the jury’s traditional role as a check on executive power and stating that “[t]he fact 

that the inconsistency may be the result of lenity, coupled with the Government’s inability to 

invoke review, suggests that inconsistent verdicts should not be reviewable . . .”); Jackson, 3 

S.W.3d 61 (noting that verdict inconsistency may be evidence fact finder is “exercising its desire 

to be lenient, or executing its own brand of executive clemency”). Or it is possible that the jury 

otherwise made some mistake or reached an illegal compromise. In any event, we cannot 

definitively say what went through the jurors’ minds in reaching their decision, and even the 

Texas Rules of Evidence largely prohibit inquiry into deliberations. See TEX.R.EVID. 606(b). 

Jury error may have occurred, but even if it did, “it is unclear whose ox has been gored.” 

Powell, 469 U.S. at 65, 105 S.Ct. at 477.

We are mindful of the jury’s role as voice of the community, and of our role in not 

overturning the jury’s verdicts without just cause. Had the jury made a special finding that 

Ramos acted in self-defense, we would likely have had to enter judgments of acquittal on all 

included charges in the spectrum, per Alonzo, because the jury made a justification finding that 

superseded any conclusions to the contrary. But see TEX.CODE CRIM.PROC.ANN. art. 37.07, 

§ 1(a)(“The verdict in every criminal action must be general.”). However, because we are faced 

with a general verdict, we cannot speculate and jump to conclusions about the jury’s decisionmaking process, and are forced to look only at the guilty verdict’s legal sufficiency. Indeed, on 

remand in Alonzo, the Corpus Christi Court of Appeals reversed the appellant’s conviction for 

the jury charge error, but noted in its harm analysis that it could not determine whether the jury 
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believed Alonzo’s self-defense claim, or whether it convicted him on manslaughter because they 

believed he did not possess the requisite intent for murder. See Alonzo v. State, No. 13-09-

00395-CR, 2012 WL 4758061, at *5-*6 (Tex.App.--Corpus Christi Oct. 4, 2012, no pet.)(mem. 

op. on remand, not designated for publication). Here, we find ourselves in the same 

predicament.

In sum, the mere existence of inconsistent verdicts is not enough to raise the specter of 

jury misconduct and justify the trial court’s exercise of discretionary power in granting a new 

trial. Verdict inconsistency is also not enough to entitle Ramos to acquittal on the aggravated 

assault charge simply because he pleaded self-defense. We must assess the legal sufficiency of 

the aggravated assault conviction on its own merits. Because Ramos does not dispute that the 

evidence underpinning that conviction was legally sufficient, and because in our independent 

review we confirm legal sufficiency, the trial court’s new trial order could not have properly 

rested on legal sufficiency or jury misconduct grounds.

Ramos alternatively argues that the trial court could have granted a new trial because it 

erred in granting the State’s instruction on the lesser-included offense of aggravated assault. We 

disagree. The trial court properly grants the State’s request for a lesser-included offense 

instruction where proof of “the lesser-included offense [is] included within the proof necessary 

to establish the offense charged[.]” Quintanilla v. State, No. 08-07-00220-CR, 2011 WL 

809995, at *1 (Tex.App.--El Paso Mar. 9, 2011, no pet.)(not designated for publication). 

Although in reviewing State-requested instructions such as this one, Texas appellate courts 

previously had to also determine whether there was “some evidence in the record that would 

permit a jury to rationally determine that if the defendant is guilty, he is guilty only of the lesser 

offense[,]” the Court of Criminal Appeals abrogated this requirement. Id. Now, under Texas 
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jurisprudence, State requests for lesser-included offense instructions are analyzed under the same 

framework as defense-requested instructions. Quintanilla, 2011 WL 809995, at *1.

Here, the proof necessary to establish aggravated assault was also necessary to prove 

murder. Because of this overlap, the State could properly request and obtain the lesser-included 

offense instruction. The trial court’s new trial grant could not rest on that ground.

CONCLUSION

The State has shown that the trial court lacked legal grounds for issuing its new trial 

order. Issue One is sustained. We reverse the trial court’s order and reinstate Ramos’ 

conviction.

July 15, 2015

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)