Opinion
14-22-00733-CR
12-10-2024
HECTOR RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1677479.
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
MEMORANDUM OPINION
Kevin Jewell Justice
Appellant Hector Ramirez appeals his conviction for aggravated assault with a deadly weapon. Appellant argues that (1) there is insufficient evidence to support the conviction; (2) the trial court erred in failing to include a lesser-included offense in the jury charge; and (3) the trial court erred in denying appellant's motion for mistrial. We hold that sufficient evidence supports the jury's verdict and that the trial court did not err in either respect challenged by appellant. We affirm.
Background
Pasadena Police Department Sergeant Jesse Baum responded to a call for two stabbings at an apartment complex. Sergeant Baum went to the location of the second stabbing, while his backup went to the location of the first. Sergeant Baum found John Mares, who had two stab wounds that were "bleeding profusely." Mares's "health was declining fast [and] . . . [he] was slowly beginning to be unconscious due to blood loss." However, Mares was able to give Sergeant Baum a description of the assailants who stabbed Mares and the other victim. Mares described "two male suspects as an older and younger Hispanic male."
Mares survived and testified at trial. After returning home late at night, he walked over to the neighboring apartment building where his cousin Adrian lived. Adrian lived on the third floor, and, as Mares walked up the stairs, he saw a neighbor, David Ortega, sitting outside his second-floor apartment. Adrian was not home, so Mares went down to the second floor to speak to Ortega, with whom he was friendly.
Mares saw two men walk by him and Ortega. The two men then doubled back and started speaking to Ortega. According to Mares, "one was short and one was taller. . . . One was older and one was probably in his 20s." The younger of the two men held Ortega's arms behind his back and the older man "hit" Ortega. Then the older man "came straight" at Mares. Mares and the older man "tussled," and then Mares ran away down the stairs.
Mares returned to his apartment, where he discovered he had been stabbed twice. The blade from a knife was embedded in Mares's shoulder, and the handle had broken off. One of the stab wounds had punctured Mares's lung.
Mares identified appellant as his assailant, both in a pretrial photo array and at trial. Surveillance video from the apartment complex showed appellant and his son, Hector Ramirez, Jr., at the scene near the time of the stabbings. Mares had never met appellant.
Appellant testified. According to him, one of his other sons, Armando, had fought with someone at the apartment complex where Ortega and Mares lived.Armando had a broken jaw as a result of the fight. Appellant and Ramirez Jr. went to the apartment complex to find out who had injured Armando. Appellant texted Ramirez Jr., "I'm ready for destruction." Appellant admitted that he went to the apartment complex to "break [the] jaw" of the person who had injured Armando.
Appellant did not know the identity of the person who fought with Armando. A neighbor at the complex, Celeste, testified that her boyfriend-who is not Mares or Ortega-was the person who had fought with Armando.
Appellant and Ramirez Jr. came upon Ortega and Mares. According to appellant, "Everything just happened so fast. I guess David, he got up out of his chair. When he got up out of his chair I didn't know what he was going to do, so I pushed [him] really hard against the wall." Then appellant turned to Mares. Appellant tried to hit Mares but missed. Appellant and Ramirez Jr. then ran down the stairs and left the apartment complex. Appellant denied having a knife and did not know if his son had a knife.
Appellant deleted numerous text messages and phone calls to and from Ramirez Jr. around the time of the incident, including the one in which he said he was "ready for destruction." When asked why, appellant said he did not want his wife to know he had left home in the middle of the night.
Although Mares survived the attack, Ortega died as a result of stab wounds. The State charged appellant and his son with the murder of Ortega and charged appellant with the aggravated assault of Mares. After a trial, the jury acquitted appellant of Ortega's murder but found appellant guilty of aggravated assault against Mares. The trial court sentenced appellant to forty-five years' confinement in the Texas Department of Criminal Justice, Correctional Institutions Division.
Appellant timely appealed.
Analysis
A. Sufficiency of the Evidence
In his first issue, appellant challenges the sufficiency of the evidence to support the jury's verdict that he was guilty of aggravated assault.
1. Standard of review and statutory offense
In determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt, we apply the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under that standard, when assessing the sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The jury alone determines witness credibility, and we will not usurp this role by substituting our judgment for that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
A person commits an aggravated assault if the person commits assault as defined in the Penal Code, and the person uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code § 22.02(a)(2). A person commits an assault if the person intentionally or knowingly threatens another with imminent bodily injury. Id. § 22.01(a)(2).
2. Evidence
The evidence established that Mares was stabbed twice with a knife. Although he initially did not know he had been stabbed, he testified that the only person who was in proximity to him was appellant. Ramirez Jr. was standing near to, and holding the arms of, Ortega. Mares's positive identification of appellant as the only person who could have stabbed him is sufficient to support the jury's finding that appellant committed the offense of aggravated assault with a deadly weapon. See Ex parte Saenz, 491 S.W.3d 819, 830 (Tex. Crim. App. 2016) (an eyewitness's identification is direct evidence of a defendant's guilt). A crime victim's testimony identifying a defendant as the perpetrator, standing alone, is sufficient to support a conviction. Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd); Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (legally sufficient evidence to sustain aggravated robbery when complainant identified defendant as the person who beat and robbed her); see also Westbrook v. State, No. 12-09-00381-CR, 2011 WL 686396, at *3 (Tex. App.-Tyler Feb. 28, 2011, no pet.) (mem. op., not designated for publication) (complainant's identification of defendant as person who stabbed him sufficient to support conviction, despite defendant's testimony that he only punched complainant); Johnson v. State, 176 S.W.3d 74, 77 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (holding evidence legally sufficient to sustain aggravated robbery conviction where complainant testified appellant robbed her at knife-point, complainant identified appellant in photographic line-up, and complainant identified appellant in court).
Appellant argues the evidence is insufficient because there is no physical evidence linking him to the crime. Neither his DNA nor fingerprints were found on any weapons, no blood was found on his clothing, and no witnesses saw appellant stab Mares. According to appellant, "[i]t could have just as easily been another party that stabbed the complainant."
Direct, physical evidence is not required to establish identity. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) ("Evidence as to the identity of the perpetrator of an offense can be proved by direct or circumstantial evidence."); Carillo v. State, No. 05-09-00310-CR, 2010 WL 2951855, at *5 (Tex. App.- Dallas July 29, 2010, no pet.) (mem. op., not designated for publication) ("Although no physical evidence linked Carrillo to the offense, none was necessary."); see also Delacerda v. State, 425 S.W.3d 367, 382 (Tex. App.- Houston [1st Dist.] 2011, pet. ref'd) ("Sufficient evidence can support a murder conviction even in the absence of physical evidence such as DNA evidence, fingerprinting evidence, and the murder weapon; thus, such evidence is not required to obtain a conviction.").
We overrule appellant's first issue.
B. Lesser-Included Offense
In his second issue, appellant argues that the trial court erred in failing to include in the jury charge the lesser-included offense of assault. Appellant argues that there was ample evidence to show he had committed a simple assault against Mares, but the trial court's charge placed the jurors in a position wherein they had to find appellant guilty of the greater offense or "completely innocent."
1. Standard of review
We review the trial court's decision on the submission of a lesser-included offense for an abuse of discretion. See Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005); Davison v. State, 495 S.W.3d 309, 311 (Tex. App.- Houston [14th Dist.] 2016, no pet.). A defendant is entitled to submission of a lesser-included offense only if the following two-pronged test is satisfied: (1) the requested lesser offense is in fact a lesser-included offense of the charged offense; and (2) there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. State v. Ransier, 670 S.W.3d 646, 650 (Tex. Crim. App. 2023). In the first step, we decide whether the purported lesser-included offense falls within the proof necessary to establish the offense charged, which is a legal question. See Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. Crim. App. 2011).
The State contends that "it is unclear" whether appellant procedurally defaulted on his appellate issue. After initially requesting a lesser-included offense in the charge, appellant's counsel later stated "no objection" to the charge given, which omitted the offense of simple assault. We will assume arguendo that appellant did not waive his appellate issue.
2. Evidence
Simple assault is not always a lesser-included offense of aggravated assault. See Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005). Here, appellant requested a lesser-included offense instruction based on facts not required to establish the commission of the charged offense. In other words, the conduct constituting the requested lesser-included offense is different from the conduct which was alleged in the charging instrument for appellant's aggravated-assault charge. The indictment for the aggravated assault alleged that appellant committed aggravated assault against the victim by a single theory, namely, that appellant caused Mares serious bodily injury by stabbing him with a knife. At trial, appellant asked for an instruction for the lesser-included offense of simple assault based on hitting or punching Mares.
Because the conduct constituting the offense of simple assault for which appellant wanted a lesser-included instruction is not the same as the conduct charged in the indictment for aggravated assault, simple assault is not a lesser-included offense of aggravated assault in this case. The requested lesser-included offense fails to meet the requirements of the Code of Criminal Procedure because the same facts or less than the same facts required to prove the greater aggravated assault offense are not required to prove the simple assault offense. See Tex. Code Crim. Proc. art. 37.09. Proof that appellant punched Mares is not required to prove appellant committed aggravated assault by stabbing Mares. See Irving, 176 S.W.3d at 846 (proof that defendant committed simple assault by grabbing and falling on victim was not required to prove aggravated assault by hitting the victim with a bat). Assault by punching someone may be a lesser-included offense of aggravated assault in some instances, but not in this case. See Luna v. State, No. 08-13-00084-CR, 2015 WL 1949176, at *7 (Tex. App.-El Paso Apr. 29, 2015, pet. ref'd) (mem. op., not designated for publication) ("Because assault by kicking and punching Gomez is not a lesser-included offense of aggravated assault by stabbing Gomez with a knife, Appellant has not satisfied the first prong . . . .").
Appellant relies on Wade v. State, which he says is based on "a nearly identical set of facts." In that case, Wade bit off his ex-wife's boyfriend's earlobe and was charged with aggravated assault by causing serious bodily injury. Wade v. State, 663 S.W.3d 175, 178 (Tex. Crim. App. 2022). During his trial, Wade testified that, in his opinion, biting off a portion of the victim's ear did not cause serious bodily injury to the victim because it did not result in "serious permanent disfigurement." Id. at 180. Wade requested a jury instruction on the lesser-included offense of assault by causing bodily injury. Id. The trial court denied Wade's request, and the jury found Wade guilty of aggravated assault causing serious bodily injury. Id. The Court of Criminal Appeals held that Wade's testimony, combined with other evidence introduced at trial, provided the jury with a valid, rational alternative to the greater offense of aggravated assault. Id. at 189. Because there was more than a scintilla of evidence from which the jury could have rationally doubted that Wade caused serious permanent disfigurement by biting off the victim's earlobe, he was entitled to his requested instruction on the lesser-included offense of assault by causing bodily injury. Id. at 190.
We disagree that Wade controls. The issue here is not whether the evidence established "serious bodily injury" or merely "bodily injury," but whether the evidence that appellant committed simple assault (by punching Mares) fell within the proof needed to establish that appellant committed aggravated assault (by stabbing Mares with a knife).
We hold that the trial court did not abuse its discretion in denying appellant's request for a lesser-included offense, and we overrule appellant's second issue. See Irving, 176 S.W.3d at 846.
C. Mistrial
In his third issue, appellant argues that the trial court reversibly erred in denying his motion for a mistrial.
1. Standard of review
A mistrial is a device used to halt trial proceedings when error occurring during trial is so prejudicial that expenditure of further time and expense would be wasteful and futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). "A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A mistrial should be granted only when less drastic alternatives fail to cure the prejudice. Id. at 884-85. When a trial court instructs a jury to disregard an improper statement, the jury is presumed to have followed the instruction. Hawkins, 135 S.W.3d at 77. The determination of whether an error necessitates a mistrial must be made by examining the facts of each case. Ladd, 3 S.W.3d at 567. We review the denial of a motion for mistrial for an abuse of discretion, and we must uphold a trial court's ruling if it is within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
2. Challenged statement
During his trial testimony, one of the investigating law enforcement officers made a statement that he did not think this was a case of self-defense. Appellant's counsel objected, which the trial court sustained. The judge also instructed the jury to disregard the statement. However, the trial court denied appellant's request for a mistrial.
Appellant never contended that he acted in self-defense, nor was that theory presented to the jury at any point during the proceedings or in the charge. At most, the officer's statement is irrelevant, and we can see no possibility that the testimony prejudiced or inflamed the jury. Hebert v. State, No. 05-05-01319-CR, 2008 WL 541764, at *5 (Tex. App.-Dallas Feb. 29, 2008, pet. ref'd) (mem. op., not designated for publication) (self-defense theory not presented to jury; police officer's testimony that appellant was "bragging" about offense was not a basis for the jury to find appellant did not act in self-defense and thus testimony was not prejudicial).
It is well settled that even improper remarks can be rendered harmless by a judge's instruction to disregard, unless it appears they were so clearly calculated to inflame the minds of the jury or were of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Stoker v. State, 788 S.W.2d 1, 13 (Tex. Crim. App. 1989). Here, the officer's uninvited and unembellished reference to appellant not acting in self-defense was not so inflammatory as to undermine the efficacy of the judge's instruction to disregard. See Kemp, 846 S.W.2d at 308. We presume the jury followed the judge's instruction to disregard, and there is no evidence to the contrary in this case. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). The trial court did not abuse its discretion in denying the motion for mistrial.
We overrule appellant's third issue.
Conclusion
We affirm the trial court's judgment.