Ramirez v. State

967 S.W.2d 919, 1998 Tex. App. LEXIS 2384, 1998 WL 195509
CourtCourt of Appeals of Texas
DecidedApril 22, 1998
Docket09-97-187 CR
StatusPublished
Cited by37 cases

This text of 967 S.W.2d 919 (Ramirez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramirez v. State, 967 S.W.2d 919, 1998 Tex. App. LEXIS 2384, 1998 WL 195509 (Tex. Ct. App. 1998).

Opinions

OPINION

WALKER, Chief Justice.

A jury convicted Rickie Ramirez, who is also known as Richie Ramirez, of indecency with a child. The jury assessed punishment at 20 years confinement in the Texas Department of Criminal Justice, Institutional Division, and a $2,500 fine. Ramirez presents five points of error in his appeal.

The first two points of error, presented in a single argument, challenge the legal and factual sufficiency of the evidence to support the jury’s verdict of guilt. The standard of review is the same for both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). We [921]*921measure the sufficiency of the evidence against a hypothetically correct charge which “accurately 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 .... regardless of the specific wording of the jury charge actually given.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

In reviewing the legal sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573 (1979).

In determining the factual sufficiency of the evidence, we review all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996). Defense evidence and alternate reasonable hypotheses may be considered. Id. at 134. We review the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compare it to the evidence which tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). We may reverse a judgment for factual insufficiency even if probative evidence exists which supports the verdict, but cannot substitute our own judgment for that of the fact finder. Id.; Clewis, 922 S.W.2d at 133. We “must defer to jury findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice.” Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). If the verdict is so against the great weight and preponderance of the evidence presented at trial so as to be clearly wrong and unjust, we will reverse the judgment and remand to the trial court for a new trial. Clewis, 922 S.W.2d at 135.

First, Ramirez contends the victim, J.B., had difficulty identifying him at trial. She was twelve years old at the time of the offense and 15 years of age at trial. When asked to identify her attacker, J.B. stated “I don’t really recognize him, because I haven’t seen him in a long time.” Later in her testimony, J.B. positively identified Ramirez as the person who touched her genitals. She also identified him as one of Betty Sue Ramirez Gates’s children. J.B. thought he was 19 at the time of the offense. Gates testified her children were a nine-year-old son, six and thirteen-year-old daughters, and the defendant, who was about 20 years of age at the time of the offense. Other testimony by Gates established J.B. made outcry against Ramirez the night the offense occurred. We find the jury could have found beyond a reasonable doubt that Ramirez was the person who fondled J.B. No evidence suggested a different person may have been the actor. Other than J.B.’s initial inability to positively identify Ramirez, the appellant identifies no evidence which tends to disprove identity. We hold the evidence of identify to be factually sufficient.

Both the indictment and the jury charge included the allegation Ramirez.engaged in sexual contact with J.B. by touching J.B.’s genitals with his “finger and hand.” Ramirez concedes evidence in the record establishes he touched J.B. with his hand, but argues the evidence does not prove he touched J.B. with his finger. J.B. testified Ramirez touched her vagina with his hand. She did not specify which part of his hand he used to affect the touch. As Ramirez recognizes in his brief, under Malik we measure the evidence against a hypothetically correct charge. Where the State indicts alleging indecency by touching with “hand and finger,” a hypothetically correct jury charge would provide “hand or finger.” We find the evidence to be both legally and factually sufficient to support the jury verdict. Points of error one and two are overruled.

Point of error three contends the trial court erred in allowing Betty Sue Ramirez Gates, the appellant’s mother, to testify as an outcry witness about statements made to her by the complainant. Conceding Gates was the first adult person J.B. spoke to after the offense, Ramirez argues J.B. did not describe the event in sufficient detail for her state[922]*922ment to Gates to qualify as outcry. Hearsay testimony may be admitted in the prosecution of an offense committed against a twelve-year-old child, provided the witness was the first person age eighteen or older to whom that child made a statement about the offense. Tex.Code Crim. Proo. Ann. art. 38.072 (Vernon Pamph.1998). “Statement about the offense” means the child gave more than a general allusion of sexual abuse, describing the alleged offense in some discernible manner. Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990).

On voir dire, Gates testified J.B. told her Ramirez “was touching her in places that he shouldn’t.” Gates was awakened at 3:00 a.m. by J.B. who told Gates that Ramirez “was messing with- her” by trying to touch J.B.’s “top,” or breasts. At trial, J.B. testified she told Gates that Ramirez had touched J.B. on her privates. J.B. described to Gates what is unmistakably an act of indecency with a child. We hold the trial court did not abuse its discretion in ruling J.B.’s statement to Gates qualified as an outcry statement under article 38.072. Point of error three is overruled.

The fourth point of error urges the trial court erred in overruling the appellant’s objections to the jury charge on guilt/innocence. Defense counsel objected to the inclusion of a definition of “sexual contact” and asked that the entire paragraph be stricken from the charge because the State had elected to proceed on a theory of touching the genitals of J.B. with the defendant’s hand and finger.

On appeal, Ramirez argues the State was allowed to proceed on a theory not alleged in the indictment: touching the anus, breast, or any part of the genitals. The State concedes it is error to refer to a theory of law in the abstract portion of the . charge and not to apply the law or refer to that law in the application paragraph of the jury charge, but contends no harm resulted from the inclusion of the entire statutory definition of “sexual contact.”

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Bluebook (online)
967 S.W.2d 919, 1998 Tex. App. LEXIS 2384, 1998 WL 195509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-state-texapp-1998.