Affirmed and Opinion Filed July 31, 2017
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00649-CR
HARVEY RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 063511
MEMORANDUM OPINION Before Justices Bridges, Myers, and Boatright Opinion by Justice Bridges Harvey Ramirez appeals his conviction for making a false statement in an application for
a certified copy of a vital record. A jury convicted appellant, and the trial court sentenced him to
eight years’ confinement. In two issues, appellant argues the jury charge misapplied the mistake
of fact instruction, and the judgment inaccurately reflects a finding of true to the enhancement
paragraph. We affirm the trial court’s judgment.
In September 2013, appellant was indicted on a charge of intentionally or knowingly
making a false statement on an application for a certified copy of “a vital record, to-wit: a birth
certificate.” In October 2015, the indictment was amended to allege appellant:
PARAGRAPH I
intentionally or knowingly made a false statement, to-wit: that the defendant was born in Laredo, Texas, in connection with Texas Birth Certificate number 075462 and said statement was made on an application for a certified copy of a vital record, to-wit: a birth certificate,
PARAGRAPH II
intentionally or knowingly supply false information, to-wit: that the defendant was born in Laredo, Texas, or the defendant’s birth was connected to Texas Birth Certificate 075462, and this information was provided for use in the preparation of a certificate, record, report or amendment under Title 3 of the Health and Safety Code,
PARAGRAPH III
For the purpose of deception, intentionally or knowingly attempted to obtain, possess, or use a certificate, to-wit: a birth certificate or the certificate relates [sic] to the birth of another individual,
At trial, Steve Hamilton, an investigator with the Texas Health and Human Services
Commission, testified he was assigned to investigate allegations that appellant had submitted a
fraudulent birth record in connection with his application for a certified birth record. Along with
his application, appellant submitted his Texas identification card, his voter registration card1, his
social security card, and a birth certificate Hamilton determined was fraudulent. Specifically,
Hamilton identified a number on the birth certificate as belonging to another person born in
Dallas. Hamilton went to appellant’s house and left his contact information, and appellant called
him. Hamilton discussed with appellant his “concerns about the validity of that birth certificate
that he had attached as part of his application.” Hamilton invited appellant to meet and give
Hamilton the opportunity to look at the actual birth certificate rather than just the photocopy
appellant sent with his application. Appellant never showed Hamilton the birth certificate he
copied.
Appellant testified his grandmother raised him in Mexico, but she told him he was born
in Laredo, Texas. Appellant’s grandmother gave him a birth certificate when he was thirteen
1 Appellant testified he had been issued a Texas ID card since 1988, and he “got that Texas ID by showing them that birth certificate.” Appellant testified he then used his Texas ID to get a voter registration card. The voter registration card was valid from January 1, 2010 through December 31, 2010.
–2– years old, but border patrol took it away when he was deported in 1989. Appellant testified he
got married under the name Constancio Enriquez. Appellant “asked an individual that had went
back there to bring [him] a birth certificate, and he brought [appellant] a birth certificate with
Constancio Enriquez. Appellant did this because “the copy – the one that [he] had with [him],
they were not accepting that one,” and he needed a birth certificate to get a marriage license.
Neri Enriquez, appellant’s ex-wife, testified appellant used the names Harvey Ramirez
and Constancio Enriquez. The couple’s marriage license showed appellant’s name as
Constancio Enriquez. Enriquez testified appellant provided the information that he was born in
January 1958 in Mexico when they sought to obtain birth certificates for their daughters.
Enriquez testified she had “no clear idea” where appellant was born, but “South Texas” was “the
only thing” she and appellant ever discussed. At the conclusion of Enriquez’ testimony the State
introduced into evidence appellant’s stipulation that he was convicted of a felony offense in 2004
and signed his name as both Harvey Ramirez and Constancio Enriquez.
Lonzo Kerr, Deputy State Registrar for Vital Records, testified he assisted Hamilton with
his investigation. When Kerr saw appellant’s birth certificate, he noticed it said City of Laredo
and had a file number that was shorter than expected. Kerr testified appellant’s birth certificate
was an “abstracted” version, and such vital records never listed a city and only listed a county.
Following Kerr’s testimony, counsel for appellant and the prosecutor discussed with the
trial judge the possibility of including a mistake of fact instruction in the jury charge. The trial
judge asked whose testimony was going to indicate there was a mistake of fact, and appellant’s
counsel stated “perhaps” appellant’s testimony would show a mistake of fact.
The application portion of the jury charge provided, in part, the following:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of April, 2015 in Grayson County, Texas, the defendant Harvey Ramirez, did then and there intentionally or knowingly makes [sic] a false statement, to-wit: that the defendant was born in Laredo, Texas, in connection –3– with Texas Birth Certificate Number 75462 and said statement was made on an application for a certified copy of a vital record, to-wit: a birth certificate, then you will find the defendant guilty of False Record For/On Birth Certificate, as charged in the indictment.
Unless you so find the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, “Not Guilty.”
You are instructed that it is a defense to prosecution that a person through mistake of fact formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense.
A reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as the defendant.
Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of April, 2015 in Grayson County, Texas, the defendant Harvey Ramirez, did then and there intentionally or knowingly makes [sic] a false statement, to-wit: that the defendant was born in Laredo, Texas, in connection with Texas Birth Certificate Number 75462 and said statement was made on an application for a certified copy of a vital record, to-wit: a birth certificate, but you further find from the evidence, or have a reasonable doubt thereof, that at the time of such conduct by defendant, if any, that the defendant, through mistake formed a reasonable belief about a matter of fact, to-wit: that the birth certificate 75462 incorporated in the defendant’s application was authentic, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
Before the charge was submitted to the jury, appellant’s counsel sought to include after
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Affirmed and Opinion Filed July 31, 2017
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00649-CR
HARVEY RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 063511
MEMORANDUM OPINION Before Justices Bridges, Myers, and Boatright Opinion by Justice Bridges Harvey Ramirez appeals his conviction for making a false statement in an application for
a certified copy of a vital record. A jury convicted appellant, and the trial court sentenced him to
eight years’ confinement. In two issues, appellant argues the jury charge misapplied the mistake
of fact instruction, and the judgment inaccurately reflects a finding of true to the enhancement
paragraph. We affirm the trial court’s judgment.
In September 2013, appellant was indicted on a charge of intentionally or knowingly
making a false statement on an application for a certified copy of “a vital record, to-wit: a birth
certificate.” In October 2015, the indictment was amended to allege appellant:
PARAGRAPH I
intentionally or knowingly made a false statement, to-wit: that the defendant was born in Laredo, Texas, in connection with Texas Birth Certificate number 075462 and said statement was made on an application for a certified copy of a vital record, to-wit: a birth certificate,
PARAGRAPH II
intentionally or knowingly supply false information, to-wit: that the defendant was born in Laredo, Texas, or the defendant’s birth was connected to Texas Birth Certificate 075462, and this information was provided for use in the preparation of a certificate, record, report or amendment under Title 3 of the Health and Safety Code,
PARAGRAPH III
For the purpose of deception, intentionally or knowingly attempted to obtain, possess, or use a certificate, to-wit: a birth certificate or the certificate relates [sic] to the birth of another individual,
At trial, Steve Hamilton, an investigator with the Texas Health and Human Services
Commission, testified he was assigned to investigate allegations that appellant had submitted a
fraudulent birth record in connection with his application for a certified birth record. Along with
his application, appellant submitted his Texas identification card, his voter registration card1, his
social security card, and a birth certificate Hamilton determined was fraudulent. Specifically,
Hamilton identified a number on the birth certificate as belonging to another person born in
Dallas. Hamilton went to appellant’s house and left his contact information, and appellant called
him. Hamilton discussed with appellant his “concerns about the validity of that birth certificate
that he had attached as part of his application.” Hamilton invited appellant to meet and give
Hamilton the opportunity to look at the actual birth certificate rather than just the photocopy
appellant sent with his application. Appellant never showed Hamilton the birth certificate he
copied.
Appellant testified his grandmother raised him in Mexico, but she told him he was born
in Laredo, Texas. Appellant’s grandmother gave him a birth certificate when he was thirteen
1 Appellant testified he had been issued a Texas ID card since 1988, and he “got that Texas ID by showing them that birth certificate.” Appellant testified he then used his Texas ID to get a voter registration card. The voter registration card was valid from January 1, 2010 through December 31, 2010.
–2– years old, but border patrol took it away when he was deported in 1989. Appellant testified he
got married under the name Constancio Enriquez. Appellant “asked an individual that had went
back there to bring [him] a birth certificate, and he brought [appellant] a birth certificate with
Constancio Enriquez. Appellant did this because “the copy – the one that [he] had with [him],
they were not accepting that one,” and he needed a birth certificate to get a marriage license.
Neri Enriquez, appellant’s ex-wife, testified appellant used the names Harvey Ramirez
and Constancio Enriquez. The couple’s marriage license showed appellant’s name as
Constancio Enriquez. Enriquez testified appellant provided the information that he was born in
January 1958 in Mexico when they sought to obtain birth certificates for their daughters.
Enriquez testified she had “no clear idea” where appellant was born, but “South Texas” was “the
only thing” she and appellant ever discussed. At the conclusion of Enriquez’ testimony the State
introduced into evidence appellant’s stipulation that he was convicted of a felony offense in 2004
and signed his name as both Harvey Ramirez and Constancio Enriquez.
Lonzo Kerr, Deputy State Registrar for Vital Records, testified he assisted Hamilton with
his investigation. When Kerr saw appellant’s birth certificate, he noticed it said City of Laredo
and had a file number that was shorter than expected. Kerr testified appellant’s birth certificate
was an “abstracted” version, and such vital records never listed a city and only listed a county.
Following Kerr’s testimony, counsel for appellant and the prosecutor discussed with the
trial judge the possibility of including a mistake of fact instruction in the jury charge. The trial
judge asked whose testimony was going to indicate there was a mistake of fact, and appellant’s
counsel stated “perhaps” appellant’s testimony would show a mistake of fact.
The application portion of the jury charge provided, in part, the following:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of April, 2015 in Grayson County, Texas, the defendant Harvey Ramirez, did then and there intentionally or knowingly makes [sic] a false statement, to-wit: that the defendant was born in Laredo, Texas, in connection –3– with Texas Birth Certificate Number 75462 and said statement was made on an application for a certified copy of a vital record, to-wit: a birth certificate, then you will find the defendant guilty of False Record For/On Birth Certificate, as charged in the indictment.
Unless you so find the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, “Not Guilty.”
You are instructed that it is a defense to prosecution that a person through mistake of fact formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense.
A reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as the defendant.
Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of April, 2015 in Grayson County, Texas, the defendant Harvey Ramirez, did then and there intentionally or knowingly makes [sic] a false statement, to-wit: that the defendant was born in Laredo, Texas, in connection with Texas Birth Certificate Number 75462 and said statement was made on an application for a certified copy of a vital record, to-wit: a birth certificate, but you further find from the evidence, or have a reasonable doubt thereof, that at the time of such conduct by defendant, if any, that the defendant, through mistake formed a reasonable belief about a matter of fact, to-wit: that the birth certificate 75462 incorporated in the defendant’s application was authentic, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
Before the charge was submitted to the jury, appellant’s counsel sought to include after
the language “that the birth certificate 75462 incorporated in the defendant’s application was
authentic” additional language “that [appellant] was told by his grandmother that he was born in
Laredo, Texas. Or that he believed his grandmother’s statement that he was born in Laredo,
Texas.” The trial court asked “if his grandmother told him and he believed that, that he was still
allowed to submit other documents that were not authentic or genuine?” or that “somehow the
fact that his grandmother told him that, that allowed him to submit false documents?”
Appellant’s counsel responded that appellant was not charged with submitting a false document
but was charged with intentionally and knowingly making a false statement that he was born in
Laredo, Texas. The prosecutor responded that the indictment was amended, and “the language is
that [appellant] was born in Laredo, Texas . . . In connection with Texas Birth Certificate –4– 75462.” The trial court denied appellant’s request. The jury convicted appellant of making a
false statement in an application for a certified copy of a vital record. The trial court sentenced
appellant to eight years’ confinement, and this appeal followed.
In his first issue, appellant argues the court’s charge misapplied the mistake of fact
instruction. Specifically, he argues the trial court erred in refusing to include his requested
addition to the mistake of fact application paragraph, and this exclusion “gave greater weight to
the State’s theory and overshadowed the nature of the conduct of which appellant was charged--
making a false statement about his place of birth.”
Appellate review of claims of jury-charge error first involves a determination of whether
the charge was erroneous and, if it was, then second, an appellate court conducts a harm analysis,
with the standard of review for harm being dependent on whether error was preserved for appeal.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Because we conclude that the
charge was not erroneous in this case, we do not conduct a harm analysis.
The purpose of the trial court’s jury charge is to instruct the jurors on all of the law
applicable to the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The application paragraph is the portion of the
jury charge that applies the pertinent penal law, abstract definitions, and general legal principles
to the particular facts and the indictment allegations. Vasquez, 389 S.W.3d at 366. Therefore, a
jury charge with an application paragraph that incorrectly applies the pertinent penal law to the
facts of a given case is erroneous. See Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App.
2004).
A defendant is entitled to an instruction on any defensive issue raised by the evidence,
whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how
the trial court views the credibility of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex.
–5– Crim. App. 2008). The statute governing the mistake-of-fact defense provides that it is “a
defense to prosecution that the actor through mistake formed a reasonable belief about a matter
of fact if his mistaken belief negated the kind of culpability required for commission of the
offense.” TEX. PENAL CODE ANN. § 8.02(a) (West 2011). When he raises evidence of a
mistaken belief as to the culpable mental state of the offense, a defendant is entitled to an
instruction on mistake of fact upon request. Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim.
App. 2013). “By ‘kind of culpability’ is meant ‘culpable mental state.’” Id. (quoting Beggs v.
State, 597 S.W.2d 375, 378 (Tex. Crim. App. 1980)).
As the prosecutor argued at trial, the indictment alleged appellant intentionally or
knowingly made a false statement in connection with Texas Birth Certificate Number 75462 and
said statement was made on an application for a certified copy of a vital record, to-wit: a birth
certificate. Whether or not appellant believed his grandmother’s statement that he was born in
Laredo, this belief was only exculpatory if it led appellant to believe further that the birth
certificate he submitted with his application was authentic. This was the issue submitted to the
jury. If appellant did not believe the birth certificate was authentic, then his belief that he was
born in Laredo did not change the fact that he submitted a fraudulent birth certificate falsely
stating that he was born in Laredo. We overrule appellant’s first issue.
In his second issue, appellant argues the judgment incorrectly reflects a finding of true to
the enhancement paragraph alleging a prior possession of a controlled substance conviction. In
making this argument, appellant concedes he pleaded true to the enhancement, but he argues
there is nothing in the record to indicate that the trial court found the enhancement true because
the trial court made no explicit pronouncement that it was true and the trial court’s sentence was
within the range of a third-degree felony.
–6– Prior to sentencing, the trial judge asked if there were “any enhancements in the
indictment that I didn’t ask [appellant] to plead to?” The prosecutor stated there was a notice of
enhancement, and it was her understanding “that the defendant is pleading true to it today.” The
trial judge asked appellant how he pled to the allegation he had a prior conviction for possession
of a controlled substance, and appellant answered, “True.” The trial judge did not orally
pronounce a finding that appellant pled true to the enhancement.
A trial court is not required to make an oral pronouncement of its findings on
enhancements when it assesses punishment. See Meineke v. State, 171 S.W.3d 551, 557 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d) (trial court not required to make oral
pronouncement of its findings on enhancements). Although the better practice is for the trial
court to announce orally its enhancement findings before sentencing, the failure to do so does not
amount to error as long as the record reflects that the court found the enhancements true and
sentenced the defendant accordingly. See id.; Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d). A trial court makes an implied finding of true to an
enhancement allegation when the record establishes the truth of that allegation. Torres v. State,
391 S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
Although the trial judge did not orally pronounce a finding of true to the enhancement
paragraph, the judgment correctly states a finding of true. Because the trial court had no duty to
make an oral finding of true or not true on the enhancement paragraph, we conclude the finding
of true recited in the written judgment of conviction is not inconsistent with the trial court's oral
silence concerning the finding. See Seeker, 186 S.W.3d at 39. We overrule appellant’s second
issue.
–7– We affirm the trial court’s judgment.
/David L. Bridges/ DAVID L. BRIDGES JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
160649F.U05
–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
HARVEY RAMIREZ, Appellant On Appeal from the 397th Judicial District Court, Grayson County, Texas No. 05-16-00649-CR V. Trial Court Cause No. 063511. Opinion delivered by Justice Bridges. THE STATE OF TEXAS, Appellee Justices Myers and Boatright participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 31, 2017.
–9–