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Court of Appeals of Texas, Corpus Christi-Edinburg.


NUMBER 13-16-00470-CR

Decided: December 01, 2017

Before Chief Justice Valdez and Justices Contreras and Benavides


The State charged, tried, and convicted appellant Ramon Alberto Gonzalez Quiroga a/k/a Ramon Alberto Quiroga Gonzalez (Quiroga) for the capital murder of Servando Betancourt Jr. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through 2017 1st C.S.). As a result of the conviction, the trial court assessed Quiroga's punishment at life imprisonment without parole. See id. § 12.31(a)(2) (West, Westlaw through 2017 1st C.S.).

By one issue, Quiroga asserts that the trial court committed reversible error by failing to include the lesser included offense of robbery in the jury charge. We affirm.


In August 2013, Brownsville police responded to a residence on Sandia Street to find 51-year-old Betancourt's lifeless body lying flat on the floor of his home, beaten and bloodied. Police observed that the home was in disarray, appeared ransacked, and showed what one detective labeled as a “violent crime scene.” In their investigation, police discovered that one of Betancourt's vehicles had recently crossed into Matamoros, Mexico. With the help of U.S. Immigration and Customs Enforcement, police identified the driver of Betancourt's vehicle as Federico Hernandez. Police met with Hernandez and Hernandez turned over Quiroga's name as an individual with knowledge of what happened to Betancourt.

Quiroga, age 19 in 2013, met with police days after the murder for a round of questioning that lasted approximately one-and-a-half hours. During the videotaped interview that was played to jurors, Quiroga waived his Miranda rights and admitted to police that he knew Betancourt 1 for approximately three years, but denied any involvement in his death. Later in the interview, Quiroga changed his story and told police that the day of the murder, Betancourt picked up Quiroga and his brother-in-law Ricardo Mendoza at their home and took them back to Betancourt's home.

According to Quiroga, Betancourt and Mendoza had pre-arranged to have a sexual encounter with each other at Betancourt's home. Quiroga denied that he ever took part in any sexual encounters with Betancourt, although he knew that Betancourt was homosexual. Quiroga testified that once they arrived at Betancourt's home on Sandia Street, the three drank alcohol and consumed illicit drugs. Quiroga told police that Betancourt and Mendoza began engaging in sexual intercourse in another room when Mendoza suddenly began choking Betancourt with an unknown object. Quiroga stated that he then heard lots of “bashing and smashing.” After the struggle with Betancourt ended, Quiroga helped Mendoza load a vehicle with some of Betancourt's belongings and drove the car away from Betancourt's home. Quiroga told police that he “knew” that Mendoza was going to kill Betancourt prior to going to Betancourt's home. Lastly, Quiroga told police that he later burned the clothes he wore that day and provided police with a buccal swab of his DNA.

Hernandez, age 22 at the time of trial, testified that he had known Quiroga and his family since his freshman year in high school. Hernandez told jurors that although he and the Quirogas were not related, they treated Hernandez like a member of the family, and he lived with the Quirogas while attending high school. At the time, Mendoza also lived with the Quirogas. Hernandez recalled a conversation that took place in August 2013 between Mendoza and Quiroga that Hernandez overheard. Hernandez stated that Mendoza and Quiroga discussed a plan to lure Betancourt into a sexual encounter, and while doing that, Mendoza would “get [Betancourt] from the back with the cord” and “choke him from the back.” Hernandez testified that they discussed making the scene look like an accident. According to Hernandez, Mendoza and Quiroga invited Hernandez to join them at Betancourt's home, but he declined.

Hernandez next recalled that Quiroga and Mendoza returned to their home later that evening in Betancourt's car, and Quiroga asked Hernandez to take the car across the border to Matamoros, Mexico. Hernandez complied with Quiroga's request, and when Hernandez returned to the United States on foot, Quiroga picked him up near the international bridge. Hernandez testified that after Quiroga picked him up, Quiroga repeatedly spoke to himself and asked God to forgive him. Hernandez stated that Quiroga later admitted to Hernandez that he and Mendoza had “messed [Betancourt] up pretty bad.” Later, Quiroga and Mendoza asked Hernandez to pawn a television that they had taken from Betancourt's home. Hernandez again complied with their request and pawned the television for $400. Of the $400, Quiroga and Mendoza gave Hernandez $100. Hernandez also aided Brownsville police in locating the site where Quiroga and Mendoza allegedly burned their clothes and shoes after Betancourt's murder.

Dr. Elizabeth J. Miller, who serves as Cameron County's forensic pathologist, testified that she performed the autopsy on Betancourt's body. Dr. Miller observed that Betancourt's body revealed an abrasion associated with a contusion on his top left shoulder, a “full thickness” laceration on the top portion of his scalp, and his neck had a ligature mark around it. Dr. Miller opined that Betancourt's cause of death was blunt-force trauma, sharp-force trauma, and ligature strangulation. Dr. Miller further opined that the manner of death was homicide.

The jury found Quiroga guilty as charged, and the trial court assessed punishment at life imprisonment without parole. See id. §§ 12.31(a)(2); 19.03(a)(2). This appeal followed.


By his sole issue, Quiroga asserts that the trial court committed reversible error by not including the lesser-included offense of robbery in the jury charge.

A. Standard of Review

Our first duty in analyzing a jury-charge issue is to determine whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we find error, we analyze it for harm. Id. The degree of harm necessary for reversal depends on whether the error was preserved by requesting the proposed jury instruction. See Oursbourn v. State, 259 S.W.3d 159, 168–69 (Tex. Crim. App. 2008) (“[T]he defense must request a jury instruction before any error can result.”). If the error was preserved by objection, we will reverse if we find “some harm” to the defendant's rights. “Some harm” means any harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc); see Atkinson v. State, 934 S.W.2d 896, 897 (Tex. App.—Fort Worth 1996, no pet.). Under a “some-harm” analysis, we are obligated to determine whether the error was “calculated to injure the rights of the defendant.” See Arline, 721 S.W.2d at 352. We consider the harmfulness in context of the entire record. Id. If no objection was made, we will reverse only if the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at 743.

B. Discussion

Quiroga argues that he was entitled to a jury charge on the lesser-included offense of robbery.

Upon the defendant's request, a lesser-included offense instruction shall be included in the jury charge if: (1) the requested charge is for a lesser-included offense of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). In conducting this two-step analysis, we first compare the elements of the charged offense with the elements of the lesser offense that might be added to the jury charge. Id. If that offense is a lesser-included offense of the charged offense, as it is modified by the indictment allegations, then the first prong of the test is met. Id. Next, we must determine whether at the close of the case, there is some evidence that would support a rational finding that the defendant is guilty only of the lesser included offense. Id. at 188–89. If both these prongs are met, a defendant is entitled to a charge on the lesser-included offense. Id. at 189.

In its briefing, the State concedes that robbery is a lesser-included offense of capital murder as charged in the indictment, and we likewise agree. See TEX. PENAL CODE ANN. § 19.03(a)(2) (elevating a charge of murder to capital murder if a person commits murder under penal code section 19.02(b)(1) and intentionally commits the murder in the course of committing or attempting to commit robbery); see also TEX. CODE CRIM. PROC. ANN. art. 37.09 (West, Westlaw through 1st C.S.) (defining when an offense is a lesser-included offense).

Thus, we move now to the second prong of the analysis and determine whether some evidence exists that would permit a jury rationally to find that Quiroga was guilty only of robbery. See Guzman, 188 S.W.3d at 188. Under this prong, anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). In other words, the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Id.

Three relevant pieces of evidence control this particular analysis: (1) Quiroga's videotaped confession to police, (2) Hernandez's testimony at trial, and (3) Quiroga's testimony at trial. We will examine each in turn. First, Quiroga confessed to police that prior to his arrival at Betancourt's home, he knew that Mendoza, his brother-in-law, had a plan to rob and kill Betancourt. Furthermore, Quiroga admitted to helping Mendoza take items from Betancourt's home after Betancourt's murder. Second, Hernandez testified that prior to Betancourt's murder, he overheard a conversation by Quiroga and Mendoza, in which they planned to rob Betancourt by luring Betancourt into thinking that he would have sexual intercourse with Mendoza, then choke Betancourt, and make his death “seem like an accident.” Third, Quiroga denied to the jury that he had a plan to kill or harm Betancourt, and justified his confession to police by stating that he “was confused ․ and pressured, and [he] didn't know what to say.” Quiroga told jurors that Betancourt was his “friend” and had no reason to harm him. Quiroga also testified that he did not “want to steal” from Betancourt, had no prior plan with Mendoza, did not help Mendoza while he physically assaulted Betancourt, and did not aid Mendoza in taking Betancourt's belongings.

The court of criminal appeals has held that if a defendant presents evidence that he committed no offense, or presents no evidence, and there is no evidence otherwise showing that the defendant is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (citing Bignall v. State, 887 S.W.3d 21, 24 (Tex. Crim. App. 1994) (en banc)). Quiroga's testimony at trial states that he had no prior knowledge of Mendoza's alleged plan to rob and kill Betancourt and did not aid Mendoza in any of his actions on the day of Betancourt's murder. In other words, Quiroga testified that he committed no offense in this case. However, the other relevant evidence—Quiroga's confession to police and Hernandez's testimony—shows that Quiroga and Mendoza's planned to rob and kill Betancourt prior to visiting Betancourt's home on the day of the murder.

Based on this record, we conclude that no evidence would permit a jury rationally to find that Quiroga was guilty only of robbery because nothing in the record establishes robbery as a valid, rational alternative to the charged offense. See Hall, 225 S.W.3d at 536; see also Lofton, 45 S.W.3d at 652. As a result, the trial court did not err by denying Quiroga's requested lesser-included offense instruction. We overrule Quiroga's first issue.


We affirm the trial court's judgment.


1.   Throughout the interview Quiroga refers to Betancourt as “Junior.”

Memorandum Opinion by Justice Benavides

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