Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00240-CR
Nabor Marquiz RAMOS, Appellant
v.
The STATE of Texas, Appellee
From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2019CR1644 Honorable Ron Rangel, Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Sitting: Lori Massey Brissette, Justice Adrian A. Spears II, Justice Velia A. Meza, Justice
Delivered and Filed: March 5, 2025
AFFIRMED
Appellant Nabor Marquiz Ramos challenges his conviction for the 2018 murder of Xavier
Avila. 1 Specifically, he asserts the trial court erred by: (1) improperly admitting certain exhibits as
1 This is our second opinion addressing Marquiz Ramos’s case. During our initial consideration of his appeal, court- appointed counsel filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967); Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). Having conducted an independent review of the record, we concluded there was an arguable ground for appeal, namely the record did not show the trial court complied with the statutory requirement to conduct an inquiry on the record regarding his ability to pay court costs. TEX. CODE CRIM. PROC. art. 42.15(a-1). As a result, we granted counsel’s motion to withdraw, abated the appeal, and remanded 04-22-00240-CR
evidence, (2) charging the jury so as to render the verdict not unanimous, (3) denying his motion
for mistrial, and (4) assessing costs and restitution without holding an article 42.15(a-1) inquiry.
He also contends the evidence was insufficient to support his conviction. We affirm.
BACKGROUND
On November 25, 2018, Marquiz Ramos and his brother went to the Red Dragon Sports
Bar to meet their friend Angelica Castillo Salazar. Castillo Salazar was there with her friend Ruby
Martinez, Ms. Martinez’s brother-in-law Leonard Martinez, and Xavier Avila. When Marquiz
Ramos and his brother arrived, Mr. Martinez introduced them to Avila. After getting into a verbal
altercation with another individual at the bar, Marquiz Ramos and his brother were escorted out
by the bouncer.
Around 2:30 am, Marquiz Ramos and his brother confronted Avila in the parking lot. A
fight ensued, and then Marquiz Ramos shot Avila eight times, including fatal shots to the chest,
abdomen, and back. Marquiz Ramos and his brother then fled in their vehicle, and Avila died at
the scene.
Marquiz Ramos was indicted on February 14, 2019 for murder with a repeat offender
enhancement allegation. 2 After a five-day trial consisting of twenty witnesses and over 150
exhibits, the jury convicted Marquiz Ramos of first-degree murder. The trial court sentenced him
to sixty years with the Texas Department of Criminal Justice—Institutional Division and assessed
restitution of $6,500 and court costs of $370. This appeal followed.
the cause to the trial court for the appointment of new appellate counsel. See Ramos v. State, No. 04-22-00240-CR, 2024 WL 172585, at *1 (Tex. App.—San Antonio Jan. 17, 2024, no pet.). After new briefing was filed by Marquiz Ramos’s new counsel and the State, we submitted this case on September 13, 2024 before Justice Beth Watkins, Justice Liza A. Rodriguez, and Justice Lori Massey Brissette. On January 6, 2025, we notified the parties the panel had changed to the current panel of justices. 2 Marquiz Ramos pleaded true to the repeat offender status.
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ADMISSION OF EVIDENCE
During San Antonio Police Department (SAPD) crime scene investigator Jolie Imler’s
testimony, the State offered into evidence a series of crime scene photographs as exhibits 38 to 61.
Marquiz Ramos specifically objected to exhibits 38, 39, 40, 44, 45, 52, 53, 55, 56, and 59,
contending “[t]hese photos . . . are cumulative. The State is offering multiple angles of the same
images, and so I believe they should pick and choose which photos they are using. They are in
pairs. I can read the numbers if you’d like.” The trial court then proceeded to “conduct a [Rule]
403 analysis on each . . . photograph” and overruled the objections to exhibits 38, 39, 44, 45, 52,
53, 55, and 59. 3
Exhibits 38 and 59 show the victim’s body from a distance, covered above the shoes by a
yellow tarp, with a small part of an arm visible and one sneaker off the foot. The body is almost
entirely inside a safety perimeter created by yellow bollards surrounding a large ice vendor.
Multiple, numbered evidence markers are visible on the ground, including numbers 1, 2, 4–9, and
11. Exhibit 39 is similar but closer, with evidence markers 2 and 6–8 no longer visible. Exhibits
44 and 45 depict a number 3 evidence marker over a bullet shell casing; exhibit 44 also shows a
vehicle’s rear license plate. Exhibit 52 shows a number 10 evidence marker next to a bullet shell
casing and a yellow tarp. Exhibit 53 is a closer view of exhibit 52. Exhibit 55 shows a bullet with
a red tip on the ground, surrounded by blood and a black and maroon piece of clothing.
On appeal, Marquiz Ramos argues that the trial court should have excluded these exhibits
because they were too graphic, more prejudicial than probative, intended to inflame the jury, and
were cumulative of Investigator Imler’s testimony. Because Marquiz Ramos did not object at trial
on these grounds to the photographic evidence, his point of error is not preserved on those bases.
3 The trial court also clarified the other photographic exhibits were admitted as unobjected to. Marquiz Ramos’s counsel did not object thereafter.
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See TEX. R. APP. P. 33.1; Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020). The
State also contends the issue of the admission of the exhibits is not preserved for appeal because
Marquiz Ramos did not object when the photographs were admitted during testimony. This is
incorrect as a matter of law. Marquiz Ramos objected to these photographs as cumulative and the
trial court, in a bench conference, admitted them over defense counsel’s objection. Nothing further
was needed for preservation. See Tex. R. Evid. 103(b) (“When the court hears a party’s objections
outside the presence of the jury and rules that evidence is admissible, a party need not renew an
objection to preserve a claim of error for appeal.”); see, e.g., Valadez v. State, 663 S.W.3d 133,
140 (Tex. Crim. App. 2022) (same).
A. Standard of Review and Law
We review a trial court’s admission of images for an abuse of discretion. Pawlak v. State,
420 S.W.3d 807, 810 (Tex. Crim. App. 2013); see Brumfield v. State, 641 S.W.3d 568, 576 (Tex.
App.—Tyler 2022, pet. ref’d). “As long as the trial court’s ruling was at least within the zone of
reasonable disagreement, the appellate court will not intercede.” Brumfield, 641 S.W.3d at 576.
Evidence is relevant and therefore admissible “if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” TEX. R. EVID. 401. Rule 403 of the Texas Rules of Evidence provides
“[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, or needlessly presenting cumulative evidence.” Id. R. 403 (emphasis added).
For non-constitutional error such as the admission of evidence, reversal is only required if
the error “affect[s] an appellant’s substantial rights—i.e., when they have a substantial and
injurious effect or influence in determining the jury’s verdict.” Cook v. State, 665 S.W.3d 595, 600
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(Tex. Crim. App. 2023); see, e.g., Valadez v. State, 663 S.W.3d 133, 147–48 (Tex. Crim. App.
2022). We make this determination by applying certain “nonexclusive factors”: (1) the character
of the error and its connection to the other evidence; (2) “the nature of the evidence supporting the
verdict”; (3) “the existence and degree of additional evidence indicating guilt”; (4) “whether the
State emphasized the complained-of error”; (5) “the trial court’s instructions”; (5) “the theory of
the case”; and (6) “relevant voir dire.” Cook, 665 S.W.3d at 599.
B. Analysis
The only objection to be considered on appeal is that exhibits 38, 39, 44, 45, 52, 53, 55,
and 59 are cumulative of other evidence. But, needlessly presenting cumulative evidence is “self-
explanatory” and “concern[s] the efficiency of the trial proceeding rather than the threat of an
inaccurate decision.” Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006); see,
e.g., Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) (stating same, quoting
Giglioblanco). We therefore cannot conclude the admission of these exhibits constituted a threat
to an inaccurate decision.
Moreover, even if exhibits 38, 39, 44, 45, 52, 53, and 59 were inadmissible on other
grounds, in our harmless error analysis we must also consider whether “substantially-similar”
evidence was admitted “without objection, either before or after the complained-of ruling.” Cook,
665 S.W.3d at 600 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)) (internal
quotation marks omitted). Here, the admission of exhibits 38, 39, 44, 45, 52, 53, and 59 is harmless
because the later-admitted video exhibit 99 shows substantially the same evidence and was
admitted without objection. See Cook, 665 S.W.3d at 600. Furthermore, exhibits 14, 24, and 25
were admitted without objection prior to the exhibits at issue here, and exhibits 14, 24, and 25 are
nearly identical to exhibits 38 and 59. See id.
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Marquiz Ramos also objected to exhibits 39 and 40 and separately to 55 and 56 as “pair[s]”
and therefore cumulative. The trial court sustained Marquiz Ramos’s objection and did not admit
exhibits 40 and 56. Because Ramos did not lodge an additional objection as to exhibits 39 and 55,
there is nothing for our review as to those exhibits. See, e.g., Adams v. State, 685 S.W.2d 661, 670
(Tex. Crim. App. 1985) (“Appellant received all the relief requested. Nothing is presented for
review.”); Westmoreland v. State, 174 S.W.3d 282, 290 (Tex. App.—Tyler 2005, pet. ref’d)
(same); see also TEX. R. APP. P. 33.1.
Accordingly, we overrule this point of error.
JURY CHARGE
Marquiz Ramos argues the jury verdict was not clearly unanimous because the State
identified more than one mens rea in its murder charge, and the trial court’s jury charge reflected
the same language. 4 The jury charge included as follows: “Our law provides that a person commits
the offense of murder if he intentionally or knowingly causes the death of an individual or if he
intends to cause serious bodily injury and commits an act clearly dangerous to human life that
causes the death of an individual.”
There is no question a jury verdict in a criminal case must be unanimous. See Cosio v.
State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). “Simply put, every juror must agree that ‘the
defendant committed the same, single, specific criminal act.’” Diko v. State, 488 S.W.3d 855, 858
(Tex. App.—Fort Worth 2016, pet. ref’d) (quoting Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim.
App. 2005)). “Jurors, however, need not be unanimous about the specific manner and means of
how an offense was committed.” Id. Nor is the jury unanimity requirement “violated . . . when the
4 “[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Further, no harm analysis is required if no error is found to have occurred with regard to how the jury was charged. See Diko v. State, 488 S.W.3d 855, 858 (Tex. App.—Fort Worth 2016, pet. ref’d).
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jury disagrees on alternate theories of the defendant’s mens rea at the time of the offense.” Davis
v. State, 268 S.W.3d 683, 711 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Martinez v. State,
129 S.W.3d 101, 103 (Tex. Crim. App. 2004)).
A person commits the offense of first-degree murder if the person: (1) “intentionally or
knowingly causes the death of an individual” or (2) “intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.” 5 TEX.
PENAL CODE § 19.02(b)(1)–(2). Section 19.01(b)(1) and (b)(2) “do not describe different offenses;
rather, they set forth alternative methods of committing the same offense.” Diko, 488 S.W.3d at
859 (quoting Lozano v. State, 359 S.W.3d 790, 821–22 (Tex. App.—Fort Worth 2012, pet. ref’d)).
Moreover, the argument that a jury charge is not clearly unanimous because it identifies
more than one mens rea for murder has been rejected. See Lopez v. State, 672 S.W.3d 915, 925–
26 (Tex. App.—Corpus Christi-Edinburg 2023, pet. ref’d); Davis, 268 S.W.3d at 711. For
example, in Lopez, the Corpus Christi Court of Appeals rejected the appellant’s contention that the
jury was not unanimous because the mens rea differed between the three theories of murder
charged in the indictment. See Lopez, 672 S.W.3d at 925. The court explained that if “the
legislature has specified that any of several different mental states will satisfy the intent or mens
rea element of a particular crime, unanimity is not required on the specific alternate mental state
as long as the jury unanimously agrees that the State has proved the intent element beyond a
reasonable doubt.” Id. (quoting Davis v. State, 268 S.W.3d 683, 712 (Tex. App.—Fort Worth 2008,
pet. ref’d)); see, e.g., Gilbert v. State, 575 S.W.3d 848, 868 (Tex. App.—Texarkana 2019, pet.
ref’d) (providing 19.02(b)(1)–(3) alternative methods of committing same offense of murder, not
5 Section 19.02(b) provides additional manner and means for the commission of murder. See TEX. PENAL CODE § 19.02(b)(3)–(4).
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separate offenses). Because the indictment and jury charge indicate that the only offense involved
in this case was murder by one of two methods set forth in the Penal Code, the jury’s verdict that
Marquiz Ramos is guilty of murder was unanimous even if the jury did not agree unanimously as
to the mens rea Marquiz Ramos employed in committing the offense. Smith v. State, 436 S.W.3d
353, 378 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Regardless of whether the jury
determined that Marquiz Ramos intentionally or knowingly caused Avila’s death, or that he caused
Avila’s death by committing an act clearly dangerous to human life with the intent to cause serious
bodily injury, “there was only one single crime of murder.” Garcia v. State, 246 S.W.3d 121, 141
(Tex. App.—San Antonio 2007, pet. ref’d). Consequently, the jury was appropriately unanimous
in rendering Marquiz Ramos’s guilty verdict. See id. Accordingly, this issue is overruled.
MISTRIAL
Marquiz Ramos argues the trial court abused its discretion by denying his motion for
mistrial after the State made an improper jury argument during closing. Specifically, he contends
the State sought to inflame and confuse the jury by suggesting Leonard Martinez was arrested and
led away in handcuffs after testifying—a fact not in evidence.
A. The Record
During trial, Mr. Martinez testified he used his identical twin brother’s name when
speaking with investigators because he had a warrant for his arrest. On cross-examination, he
confirmed this and admitted the warrant was still active. The State objected to discussing the nature
of the charges underlying the warrant. After Marquiz Ramos’s counsel clarified he only wanted to
establish the warrant provided Mr. Martinez a motive to testify for the State, the trial court allowed
the line of questioning without delving into the specific charges.
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When questioning resumed, Marquiz Ramos’s counsel re-confirmed Mr. Martinez had an
active warrant and then asked if he came to testify knowing he might be arrested because of his
warrant. Mr. Martinez responded he did not think about it and was there for Avila. Mr. Martinez
further testified he had not been promised anything in exchange for his testimony. He also testified
he had not been arrested when he met with the prosecutor and an investigator at the district
attorney’s office. Mr. Martinez further testified he understood lying about his identification while
subject to a warrant was a criminal offense. Later, Marquiz Ramos’s counsel asked Mr. Martinez
to confirm he “had to feel pretty confident” he would not be arrested if he had already met with
the DA’s office multiple times and had not been arrested already. Mr. Martinez explained “[i]f I
get arrested, I get arrested.”
During closing arguments, the State mentioned Mr. Martinez testified despite the risk of
arrest due to his pending warrant, seeking justice for his brother, Xavier Avila. Marquiz Ramos
did not object. During the defense’s closing, Marquiz Ramos’s counsel twice raised Mr. Martinez’s
warrant and pointed out it was a criminal offense to lie about one’s identity with a pending warrant.
Then, during the State’s second closing it explained Mr. Martinez testified “knowing the risk [of
testifying with a pending warrant] because we didn’t promise him anything. And, in fact, he left
in handcuffs.” Marquiz Ramos’s counsel then objected to the facts not in evidence.
The trial court instructed the jury: “The jury will remember the facts that came out in this
case and the evidence that came out.” Marquiz Ramos’s counsel then asked whether the trial court
was overruling the objection. The court responded: “I’ll be honest with you, I don’t even recall
whether . . . the jury are the ones that are going to know which evidence they will consider to be
true and correct, so it’s up to them to make that determination.” Marquiz Ramos’s counsel then
requested a mistrial, to which the trial court responded: “[o]verruled and denied.” The trial court
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then instructed the jury again: “it’s not my role to tell you the evidence that came out in this case.
Only you know the evidence to consider.” A few minutes later during a bench conference, the trial
court explained it now understood the objection and “I’ve already instructed the jury that they have
seen all the evidence. If you want, I can specifically zero in on that and sustain it and tell them to
completely disregard it, and then you can make your motion after that. I’m going to leave it up to
you.” Marquiz Ramos’s counsel responded, “We will leave it as is, Judge.”
B. Standard of Review
We review a trial court’s denial of a mistrial for an abuse of discretion. See, e.g., Becerra
v. State, 685 S.W.3d 120, 127 (Tex. Crim. App. 2024). Under this standard, “we do not substitute
our judgment for that of the trial court.” Id. Instead, “we decide whether the trial court’s decision
was arbitrary or unreasonable.” Id. A trial judge’s decision is arbitrary or unreasonable if “no
reasonable view of the record” could support the decision. Id.
C. Closing Argument
Closing argument facilitates the jury’s proper analysis of the evidence presented at trial so
that it may reach a just and reasonable conclusion. See Milton v. State, 572 S.W.3d 234, 239 (Tex.
Crim. App. 2019). In general, “the bounds of proper closing argument are left to the sound
discretion of the trial court.” Id. at 240. Typically, jury argument falls within four permissible
areas: “(1) a summation of the evidence; (2) a reasonable deduction drawn from that evidence;
(3) an answer to opposing counsel’s argument; and (4) a plea for law enforcement.” Gonzalez v.
State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020). Closing arguments must address “matters that
are in evidence or inferable from the evidence.” Milton, 572 S.W.3d at 241. They may not be
“abusive or inflammatory.” Id. (quoting Grant v. State, 472 S.W.2d 531, 534 (Tex. Crim. App.
1971)) (internal quotation marks omitted).
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Both Marquiz Ramos and the State raised the potential for Mr. Martinez’s arrest due to an
active warrant. The State’s claim that Mr. Martinez was led away in handcuffs after testifying was
not in evidence. However, the suggestion he could be led away in handcuffs was a reasonable
inference, as Mr. Martinez admitted he could be arrested, a point repeatedly elicited by Marquiz
Ramos himself. See Gonzalez, 616 S.W.3d at 594; Milton, 572 S.W.3d at 240–41. The State’s
contention was also a response to Marquiz Ramos’s argument Mr. Martinez only testified because
he had a deal and knew he would not be arrested. See Gonzalez, 616 S.W.3d at 594. Given the
testimony about his live warrant and that he could be arrested at any time, the State’s closing was
also not especially abusive or inflammatory. See Milton, 572 S.W.3d at 241.
D. Denial of Mistrial
We review the denial of a mistrial for improper jury argument by examining three factors:
(1) the severity of the harm caused by the misconduct; (2) curative measures; and (3) the certainty
of conviction without the misconduct. See Gonzalez, 616 S.W.3d at 594. Turning to the second
factor, the trial court does not abuse its discretion by denying a mistrial “if a curative instruction
would have sufficed.” Lee v. State, 549 S.W.3d 138, 145 (Tex. Crim. App. 2018); Ocon v. State,
284 S.W.3d 880, 885 (Tex. Crim. App. 2009) (providing requesting lesser remedies is not
prerequisite to mistrial, but if movant does not request lesser remedy, we will not reverse if
problem could have been cured by less drastic alternative). A curative instruction is “generally
considered sufficient to cure improprieties” during trial. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009); Crayton v. State, 463 S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (providing, in general, prompt instruction to disregard will cure error associated
with improper closing argument, unless it appears argument was so clearly calculated to inflame
jury minds of or of such damning character as to suggest it would be impossible to remove harmful
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impression from jury minds). We “presume that a jury will follow the judge’s instructions.”
Gamboa, 296 S.W.3d at 580. “Only in extreme circumstances, where the prejudice is incurable,
will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). “But if
an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a
motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal.”
Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004); see, e.g., Hernandez v. State, 538
S.W.3d 619, 623 (Tex. Crim. App. 2018) (same, quoting Young).
Even assuming the State’s arguments constituted error, we cannot conclude it had a
substantial and injurious effect or influence in determining the jury’s verdict. See TEX. R. APP. P.
44.2(b); Cook v. State, 665 S.W.3d 595, 600 (Tex. Crim. App. 2023). Regarding the severity of
the harm, the State’s claim that Mr. Martinez left in handcuffs was a single, offhand remark in
twelve pages of the State’s closing. Both parties repeatedly mentioned his live warrant and
potential arrest without objection. See Gonzalez, 616 S.W.3d at 594. Moreover, the trial court twice
offered a prompt curative instruction as to the jury determining what facts were in evidence. See
id. A few minutes later, the trial court offered an even stronger curative instruction, which Marquiz
Ramos’s counsel declined. See Lee, 549 S.W.3d at 145; Gamboa, 296 S.W.3d at 580; Ocon, 284
S.W.3d at 885.
E. Conclusion
Considering everything we learned about Mr. Martinez, his live warrant, and his potential
arrest, the handcuff remark was not particularly inflammatory or so damning as to be impossible
to remove the harmful impression. See Gonzalez, 616 S.W.3d at 594. Nor is there any reason to
believe the handcuff remark would undermine the certainty of Marquiz Ramos’s conviction
because it did not undermine any evidence of his guilt. See id.
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Because we conclude the State’s remark was a reasonable deduction inferable from the
evidence and cannot conclude the State’s argument had a substantial and injurious effect or
influence in determining the jury’s verdict, we cannot conclude the trial court abused its discretion
in denying the mistrial motion.
SUFFICIENCY OF THE EVIDENCE
Marquiz Ramos argues that the evidence was insufficient to support his conviction. In
cursory fashion, he cites the indictment and the murder statute and makes the following one-
sentence argument: “A scintilla of evidence was not introduced by the State that the Appellant (1)
intentionally and knowingly cause the death of Xavier Avila; or (2) with intent to cause serious
bodily injury to Xavier Avila committed an act clearly dangerous to human life that caused the
death of Xavier Avila.” 6
A. The Trial
The evidence presented at trial, including multiple eyewitnesses, video surveillance, and
forensic evidence, established the following: Marquiz Ramos and his brother went to the Dragon
Sports Bar on the evening of November 25, 2018, invited by their friend Angelica Castillo Salazar.
Castillo Salazar was with her friend Ruby Martinez, Ms. Martinez’s brother-in-law Leonard
Martinez, and the victim, Xavier Avila. When Marquiz Ramos and his brother arrived, Mr.
Martinez, who knew Marquiz Ramos but not personally, introduced them to Avila. Ms. Martinez
had met Marquiz Ramos twice before. Later that evening, Marquiz Ramos got into a verbal
altercation. Ms. Martinez testified Avila and Mr. Martinez were involved in the altercation, but
6 Marquiz Ramos also argues the evidence is factually insufficient, but we no longer review the sufficiency of the evidence for factual sufficiency. See generally Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (concluding no meaningful distinction between legal and factual sufficiency exists in a criminal case and “decid[ing] that the Jackson v. Virginia[, 443 U.S. 307 (1979)] legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient”).
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Avila de-escalated it. However, Mr. Martinez testified the dispute was between Marquiz Ramos
and another bar regular, with Avila merely standing nearby. The altercation ended, Marquiz Ramos
and his brother finished their beers, and they were escorted out by the bouncer, Darin Boykins,
who thanked them for not fighting.
During the early morning hours of November 26, Avila, Ms. Martinez, and Mr. Martinez
left the bar and got into Ms. Martinez’s car. Ms. Martinez testified they saw flashing headlights as
they were about to leave the parking lot. Mr. Martinez testified they left the parking lot and
returned because someone had called Ms. Martinez asking her to return to the bar.
Avila, Mr. Martinez, and Ms. Martinez then approached Marquiz Ramos and his brother
near a parking lot ice vendor. Avila swung at Marquiz Ramos, who stepped back, then Marquiz
Ramos’s brother lunged at Avila, and they began fighting. Marquiz Ramos’s brother was smaller
than Avila, but both men suffered minor abrasions.
After Marquiz Ramos stepped back, he drew a handgun and tried to fire it at Avila while
Avila fought with his brother, but the gun jammed. Marquiz Ramos repeatedly attempted to render
the gun operational. Mr. Martinez moved towards Marquiz Ramos, saying, “no guns.” Eventually
Marquiz Ramos’s brother stepped away from Avila, and Marquiz Ramos managed to fire the
handgun, shooting Avila eight times, including fatal shots to the chest, abdomen, and back. 7 An
investigation found eight bullet shell casings and an unfired, red-tipped bullet. Avila died next to
the ice vendor, and no one else was found to be armed.
Marquiz Ramos then fled the scene with his brother in a black Saab. Later, Jacob Evans, a
driver on Culebra Road, saw a black vehicle cut him off and attempt to throw an object into a flood
control channel, which landed on the sidewalk. He then witnessed the vehicle get pulled over by
7 Ms. Martinez identified Marquiz Ramos as the shooter, but she conceded she failed to identify him in a police lineup.
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SAPD. He returned to locate the object, found a handgun, and directed police to its location. The
traffic stop involved Marquiz Ramos and his brother, and based on dispatch identifying them as
suspects in the shooting, the patrol officer arrested them. Police later concluded Marquiz Ramos’s
brother was not involved in Avila’s death, and he was released.
The firearm recovered by police was a Taurus DA/SA US compact .40 caliber. A search
of the Saab recovered Winchester 0.40 caliber Smith & Wesson rounds including one with a red
tip. Firearms examiner David Pendleton testified the shell casings recovered from the scene were
fired by the same gun. Gun shot residue tests showed Avila and Marquiz Ramos may have
discharged a firearm or were in close proximity to the discharge of a firearm. A gray hoodie
recovered as evidence from the Saab also tested positive for gunshot residue.
While in Bexar County Jail, Marquiz Ramos made a phone call to an unidentified
individual stating, among other things, “it is what it is,” he “didn’t do” anything, he was in jail “for
no reason,” and “I know I [expletive] up and everything, but you can’t take it back now.”
When reviewing a jury’s verdict in the context of a sufficiency challenge, the question is
whether, “after viewing the evidence in the light most favorable to the verdict, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Nisbett v.
State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (internal quotation marks omitted). The jury is charged with resolving conflicts within
the testimony, determining the credibility of witnesses, as well as weighing the evidence. See
Nisbett, 552 S.W.3d at 262. Our role is simply to guard against the “rare occurrence when the
factfinder does not act rationally.” Id.
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Further, it is not necessary the evidence directly prove each element, as circumstantial
evidence alone can be sufficient to establish guilt. See id. Each fact does not need to “point directly
and independently to guilt if the cumulative force of all incriminating circumstances is sufficient
to support the conviction.” Id. (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
The jury can draw reasonable inferences from the evidence “as long as each inference is supported
by the evidence presented at trial.” Carter v. State, 620 S.W.3d 147, 150 (Tex. Crim. App. 2021)
(quoting Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)) (internal quotation marks
omitted). But “juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions.” Hooper, 214 S.W.3d at 15. 8 Furthermore, in
determining their verdict, the jury is entitled to consider the events that took place “before, during,
and after the commission of the crime.” See Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App.
2012).
C. Law & Analysis
The sufficiency of the evidence is measured against the elements of the offense as defined
by a “hypothetically correct jury charge.” Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.
2011); TEX. PENAL CODE § 19.02(c). A hypothetically correct jury charge correctly “sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense.” Baltimore v. State, 689 S.W.3d 331, 341–42 (Tex. Crim. App. 2024). The law authorized
by the indictment “includes the statutory elements of the offense and those elements as modified
8 An inference by a factfinder “is a conclusion reached by considering other facts and deducing a logical consequence from them.” Id. at 16. By contrast, “[s]peculation is mere theorizing or guessing about the possible meaning of facts and evidence presented.” Id.
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by the indictment.” Lang v. State, 664 S.W.3d 155, 168–69 (Tex. Crim. App. 2022) (quoting
Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018)) (internal quotation marks omitted).
Section 19.02(b) of the Texas Penal Code provides a person commits murder if the person,
among other things, “intentionally or knowingly causes” an individual’s death or “intends to cause
serious bodily injury and commits an act clearly dangerous to human life” causing an individual’s
death. TEX. PENAL CODE § 19.02(b)(1)–(2); see, e.g., Adames v. State, 353 S.W.3d 854, 862 (Tex.
Crim. App. 2011). 9 And a “jury may infer the requisite mental state from (1) the acts, words, and
conduct of the defendant, (2) the extent of the injuries to the victim, (3) the method used to produce
the injuries, and (4) the relative size and strength of the parties.” Rhymes v. State, 536 S.W.3d 85,
95 (Tex. App.—Texarkana 2017, pet. ref’d) (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex.
Crim. App. 1995)).
The indictment tracks the language of 19.02(b)(1) and (2). Applying the murder statute as
alleged in the indictment, a hypothetically correct jury charge would ask whether Marquiz Ramos
intentionally or knowingly caused the death of Avila by shooting him with a firearm, or with the
intent to cause serious bodily injury to Avila, Marquiz Ramos committed an act clearly dangerous
to human life—shooting at Avila with a firearm—causing Avila’s death. See TEX. PENAL CODE
§ 19.02(b)(1)–(2); Adames, 353 S.W.3d at 862.
Applying our standard of review and measuring the evidence against the elements of the
offense as defined by a hypothetically correct jury charge shows a rational juror could have found
beyond a reasonable doubt the State proved Marquiz Ramos intentionally or knowingly caused the
death of Avila, or with the intent to cause serious bodily injury to Avila, Marquiz Ramos
9 A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. TEX. PENAL CODE § 6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).
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committed an act clearly dangerous to human life causing Avila’s death. See TEX. PENAL CODE
§ 19.02(b)(1)–(2); Adames, 353 S.W.3d at 862. Specifically, the jury could have found beyond a
reasonable doubt that Marquiz Ramos was angry about the bar altercation, blamed Avila,
confronted him, became angrier when Avila took a swing and fought with his brother, repeatedly
tried to shoot him with a jamming handgun, and eventually shot him eight times, including in the
back, intentionally or knowingly causing Avila’s death, or at the very least, intending to cause
serious bodily injury, shot him in an act clearly dangerous to human life, causing his death. The
evidence is therefore sufficient for a rational trier of fact to have found Marquiz Ramos guilty of
murder beyond a reasonable doubt. See TEX. PENAL CODE § 19.02(b)(1)–(2); Adames, 353 S.W.3d
at 862. Accordingly, Marquiz Ramos’s argument is overruled.
COSTS AND RESTITUTION
Marquiz Ramos states the trial court improperly assessed $370.00 in court costs and
$6,500.00 in restitution without the required article 42.15(a-1) hearing. He also argues that
omitting any information about article 42.15(a-1) potentially voids the trial court’s entire
judgment, requiring a new trial. The State responds that (1) Marquiz Ramos’s argument as to the
restitution argument is inadequately briefed, (2) Marquiz Ramos forfeited his costs argument at
trial, and (3) remanding on the issue of costs would be a waste of judicial resources.
A. Article 42.15(a-1)
Article 42.15(a-1) requires the trial court, at the time of sentencing, to hold a hearing on
the record regarding the defendant’s ability to pay any fine and costs:
Notwithstanding any other provision of this article, during or immediately after imposing a sentence in a case in which the defendant entered a plea in open court as provided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire on the record whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs.
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TEX. CODE CRIM. PROC. art. 42.15(a-1) (emphasis added). 10 There is nothing in the record to show
the trial court conducted such an inquiry on the record and, in fact, the State admits it did not.
However, the Court of Criminal Appeals recently held that an ability-to-pay inquiry is a forfeitable
right. Cruz v. State, 698 S.W.3d 265, 269 (Tex. Crim. App. 2024). Cruz reasoned that “because
the [Article 42.15(a-1)] inquiry is not fundamental to the functioning of our adjudicatory system,”
if the trial court does not conduct an ability-to-pay inquiry on the record, the defendant must timely
object to preserve a complaint for appellate review. Id. at 266; see TEX. R. APP. P. 33.1(a)(1);
Proenza v. State, 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) (noting “responsibility of asserting
forfeitable rights belongs to the litigants . . . not the trial judge [and] such rights will be unavailable
on appeal if not urged at trial”). Because Marquiz Ramos’s right to an ability-to-pay inquiry on
the record is forfeitable, and because he failed to timely object, he did not preserve his complaint
for appellate review. See Cruz, 698 S.W.3d at 269; Proenza, 541 S.W.3d at 797. Accordingly, we
overrule this issue.
B. Restitution
Finally, with regard to Marquiz Ramos’s contention that restitution was improperly
assessed without an article 42.15(a-1) hearing, the issue is inadequately briefed because it contains
no citations to authorities. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the record.”);
see, e.g., Bohannan v. State, 546 S.W.3d 166, 180 (Tex. Crim. App. 2017) (“It is incumbent upon
Appellant to cite specific legal authority and to provide legal arguments based upon that
authority.”).
10 On January 1, 2025, Article 42.15(a-1) was amended to revise subsection (2)’s statutory cross-references addressing the performance of community service as an alternative to the payment of fines and costs. See TEX. CODE CRIM. PROC. art. 42.15(a-1)(2).
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Even if it were adequately briefed, “to preserve an issue for appellate review, the
complaining party must first raise the issue in the trial court.” Garcia v. State, 663 S.W.3d 92, 95
(Tex. Crim. App. 2022); see TEX. R. APP. P. 33.1(a). “Specifically, the propriety of a restitution
order must be raised in the trial court.” Garcia, 663 S.W.3d at 95. Here, the trial court orally
pronounced restitution, and Marquiz Ramos did not object. Because Marquiz Ramos did not
object, he forfeited his complaint. See id.
We therefore overrule Marquiz Ramos’s issue regarding costs and restitution.
CONCLUSION
Accordingly, the trial court’s judgment is affirmed.
Lori Massey Brissette, Justice
Do Not Publish
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