Opinion
No. 06-11-00252-CR
11-27-2012
GUADALUPE RAMIREZ, III, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 26902
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Guadalupe Ramirez, III, was convicted by a jury of aggravated assault by use of a deadly weapon and was sentenced to ten years' imprisonment. Ramirez argues that the evidence was legally insufficient to support his conviction. We affirm the trial court's judgment because we find the evidence legally sufficient to establish that Ramirez committed aggravated assault by use of a deadly weapon.
In a separate point of error, Ramirez argues that the court erred in overruling his motion for directed verdict. In reviewing the denial of a directed verdict, we look to the legal sufficiency of the evidence. Williams v. State, 356 S.W.3d 508, 522-23 (Tex. App.—Texarkana 2011, pet. ref'd); Todd v. State, 242 S.W.3d 126, 136 (Tex. App.— Texarkana 2007, pet. ref'd).
Ramirez also appeals from the following convictions entered on the same date: aggravated assault against a public servant (cause number 06-11-00251-CR); aggravated assault of Joanna Brock with a deadly weapon (cause number 06-11-00253-CR); aggravated assault of Darlene Moffitt Robinson with a deadly weapon (cause number 06-11-00254-CR); and aggravated robbery with a deadly weapon (cause number 06-11-00255-CR). These cases were all consolidated for trial. Ramirez has filed a single brief challenging the legal sufficiency of the evidence supporting each conviction. The complete factual background giving rise to all of these convictions is the same, and is set forth in our opinion of this date in cause number 06-11-00255-CR. Therefore, this opinion only discusses the facts necessary to decide this opinion.
In evaluating legal sufficiency, we review all of the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found the essential elements of aggravated assault with a deadly weapon beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while keeping in mind that the credibility of witnesses is the sole province of the jury and that we "must give deference to 'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson 443 U.S. at 318–19); see Ehrhardt v. State, 334 S.W.3d 849, 857 (Tex. App.— Texarkana 2011, pet. ref'd).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "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 for which the defendant was tried." Id.
The indictment in this case alleged that Ramirez, individually and acting together with Darius Williams, intentionally or knowingly threatened Virginia Green with a firearm, a deadly weapon. Ramirez individually committed the offense of aggravated assault with a deadly weapon if (1) he (2) intentionally or knowingly (3) used or exhibited a deadly weapon (4) to threaten Green with imminent bodily injury. TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West 2011). A "deadly weapon" is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2012).
"A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." TEX. PENAL CODE ANN. § 7.01(a) (West 2011). "A person is criminally responsible for an offense committed by the conduct of another if[,] . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). Thus, Ramirez committed aggravated assault with a deadly weapon as a party if he acted with intent to promote or assist Williams in the commission of the offense by encouraging, aiding, or attempting to aid him in the aggravated assault of Green with a firearm.
The evidence was sufficient to convict Ramirez if he was physically present at the commission of the offense and encouraged its commission by words or other agreement. Hartsfield, 305 S.W.3d at 864 (citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh'g)).
Green was standing outside of Bonnie Lou's Game Room talking to her nephew on her cell phone when she "felt a push," "went flying through the door onto the floor[,] and slid across the carpet." She looked up and saw "three" "dark complected" men. They were all carrying guns and wearing bandanas and hoodies. In our opinion in cause number 06-11-00255-CR, we explained that the evidence was sufficient for the jury to find that Ramirez was one of three men who robbed the game room and that all three robbers, Ramirez, Williams, and Thomas, were acting together.
Green testified that the man who pushed her was wearing a multi-colored bandana and a gray hoodie. This suggests that Vincent Thomas was the one who assaulted her. The indictment does not include Thomas. There has been no complaint raising any issues that the evidence does not match the indictment. We analyze the evidence based on the hypothetically correct jury charge.
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Green told the jury that one gunman grabbed her cell phone and her purse and that all three were "all over the place" "yelling and screaming and saying, you know, we're in charge of this. If you move, we'll shoot you." She testified, "I thought I was going to die." Green had a carpet burn on her arm and a "big bruise" on her hip.
At a minimum, we find the evidence sufficient for the jury to have found that Ramirez intentionally or knowingly encouraged, aided, or attempted to aid his fellow perpetrator in causing bodily injury to Green while a deadly weapon was used or exhibited. Accordingly, we find the evidence sufficient to support Ramirez' conviction. This point of error is overruled. We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
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