PD-1097-15 PD-1097-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/24/2015 12:00:00 AM Accepted 8/25/2015 5:00:08 PM TEXAS COURT OF CRIMINAL APPEALS ABEL ACOSTA CLERK _______________________________________________________
ANDY TORRES RAMOS APPELLANT VS.
THE STATE OF TEXAS APPELLEE _______________________________________________________
Appealed from the 36th Judicial District Court
San Patricio County, Texas
Tr.Ct.No. S-13-3236-CR
APPELLATE CASE NO. 13-14-00199-CR
13TH COURT OF APPEALS OF CORPUS CHRISTI, TEXAS _______________________________________________________
APPELLANT'S BRIEF _______________________________________________________
RANDALL E. PRETZER, PLLC
State Bar No. 16279300
P.O. Box 18993
Corpus Christi, Texas 78480
BUS: (361) 883-0499
FAX: (361) 883-2290
E-Mail: repretzer@gmail.com
ATTORNEY FOR APPELLANT
August 25, 2015 IDENTITY OF PARTIES AND COUNSEL
JUDGE PRESIDING
THE HONORABLE RON CARR
36H JUDICIAL DISTRICT COURT
SAN PARTRICIO COUNTY COURTHOUSE
SINTON, TEXAS 78387
COUNSEL FOR THE STATE
MR.SAMUEL SMITH
ASSISTANT DISTRICT ATTORNEY
P.O. BOX 1393
APPELLANT
MR. ANDY TORRES RAMOS
P.O. BOX 83
PORTLAND, TEXAS 78374
APPELLANT'S COUNSEL
MR. RANDALL E. PRETZER, PLLC
i TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . iii-iv
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . v
PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 1-2
STATEMENT OF THE CASE . . . . . . . . . . . . . . 2-4
STATEMENT OF FACTS . . . . . . . . . . . . . . . . 3-13
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 13
SOLE GROUND FOR REVIEW . . . . . . . . . . . . . . 14
SOLE GROUND FOR REVIEW
THE APPELLATE COURT ERRED WHEN IT FAILED TO FIND THAT
THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND
LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION
FOR AGGRAVATED ASSAULT, ALL INVIOLATION OF THE 5TH AND
14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
ii ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 14-20
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 21
CERTIFICATE OF COMPLIANCE, RULE 9.4(i), T.R.A.P. 21
APPENDIX . . . . . . . . . . . . . . . . . . . . 22
iii INDEX OF AUTHORITIES
Cases: Page
Hightower v. State, 389 S.W.2d 674 (Tex.Crim.
App.1965) . . . . . . . . . . . . . . . . . . . . 15
Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978) 15
Moore v. State, 531 S.W.2d 140 (Tex.Crim.App.1978 . 15
Houston v. State, 663 S.W.2d 455 (Tex Crim.App.1984) 15
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,61
L. Ed.2d 560 (1979) . . . . . . . . . . . . . . . . 15
Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.
[Panel Op] 1982) . . . . . . . . . . . . . . . . . 15
Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1985). 16
iv STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument.
v TEXAS COURT OF CRIMINAL APPEALS _______________________________________________________
THE STATE OF TEXAS APPELLEE _______________________________________________________
13TH COURT OF APPEALS OF CORPUS CHRISTI, TEXAS _______________________________________________________
APPELLANT'S BRIEF _______________________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
PROCEDURAL HISTORY ANDY T. RAMOS, hereinafter referred to as Appellant,
respectfully petitions the Court of Criminal Appeals to
review the judgment of the 13th Court of Appeals which
had affirmed his conviction as per that judgment in Cause
No. 13-14-00199-CR as set forth in the Appendix, attached
1 hereto and incorporated by reference herein for any
purpose.
STATEMENT OF THE CASE
On January 27, 2014, a jury was selected in this
case. On January 28, 2014 the Appellant pled NOT guilty
to charge of Aggravated Assault, a second degree felony,
under Cause No. S-13-3236-CR, entitled The State of Texas
v. Andy Torres Ramos. (RR, Vol. 3, pp. 14-15).
Subsequently, the state presented to the jury its
evidence through testimony and exhibits. Appellant did
testify and presented to the jury his evidence through
testimony. Thereafter, the state and Appellant rested.
After deliberation, the jury returned with a unanimous
verdict of guilty to the charge of Aggravated Assault.
(RR, Vol. 4, page 34). On January 29, 2014, the court
again convened to hear evidence during the punishment
phase of this trial. The state after it rested and
closed, presented argument to the court regarding
sentencing. The Appellant presented his evidence through
2 two witnesses’ testimony. Thereafter, Appellant rested,
closed, and presented argument regarding sentencing. The
jury sentenced Appellant to three (3) years in prison,
but recommended to the court that the sentence be
probated. The jury did not asses a fine. (Vol. 5, pp. 27-
28).
Appellant perfected his appeal by filing with the
District Clerk of San Patricio County, Texas, in writing
his Notice of Appeal, on January 29, 2014. (CR, Vol. 1,
page 65).
STATEMENT OF FACTS
Again, On January 27, 2014, a jury was selected in
this case. On January 28, 2014 the Appellant pled NOT
guilty to the charge of Aggravated Assault, a second
degree felony, under Cause No. S-13-3236-CR, entitled The
State of Texas v. Andy Torres Ramos. (RR, Vol. 3, pp. 14-
15). Subsequently, the state presented to the jury its
3 testify and presented to the jury his evidence through
testimony.
During the trial on the merits, the state called
several witnesses to testify regarding the charge of
Aggravated Assault as set forth in the indictment to
which Appellant had pled NOT guilty.
The first witness called by the state was Deputy
Sheriff Jay Daniel Hinojosa, who testified as follows:
that on or about July 14, 2013, he was dispatched to
County Road 61 regarding an alleged vehicular assault
involving Victoria Renee Martinez (hereinafter generally
referred to as the victim); that he interviewed the
victim and took pictures of her injuries allegedly
inflicted on her person as a result of the alleged
assault; that four of these pictures were offered and
received into evidence; that she had redness on her
throat, her neck and the palms of her hands; that she had
some pain in her feet; that there was a picture of her
purse and six or seven Hydrocodone pills found in that
same purse belonging to the victim; that the victim
4 admitted to the deputy that the Hydrocodone pills
belonged to her; [all subsequent emphases are
Appellant’s]; that the purse was found in the car driven
by Appellant and was not at the place where the victim
was found but subsequently delivered to the deputy; that
due to the injuries that the victim sustained, an
ambulance was dispatched to the scene and transported the
victim to the hospital; that the deputy did not, however,
see any car hit the victim, nor was there anything in his
report that any other witness saw Appellant’s car hit the
victim; that the victim’s Hydrocodone pills could cause
intoxication; that the victim told him that the car had
driven over her back; that he was not aware that the
Appellant’s Ford Mustang weighed a little less than 3,400
pounds, but he was aware that the car was heavy. (RR,
Vol. 3, pp. 24-46).
The next witness called by the state was Sergeant
Steven Loving, who testified as follows: that he prepared
the offense report that would be submitted to the
District Attorney for review and possible prosecution;
5 that the victim did bring her purse to his office to
demonstrate cuts and rips (teeth marks?); that he had no
idea of the condition of the purse prior to the alleged
assault; that the victim related to him that she felt the
back TIRE of Appellant’s car on her back; that he was
informed that the victim was taken to the hospital,
treated and released that SAME DAY; and, that there were
no torn or ripped clothing, or any other articles with
tire-tracks, belonging to the victim that were tagged and
prepared as evidence in this case. (RR, Vol. 3, 46-67).
The next witness called by the state was the alleged
victim, Victoria Renee Martinez, who testified as
follows: that on the day of the incident Appellant had
picked her up at her home, they had driven to Corpus
Christi, Texas, and then Appellant had driven her back
to her home; that while in Appellant’s car and in front
of her home he had asked her to have sex with him; that,
though they had had intimate relations in the past, she
had refused and an argument ensued wherein Appellant had
accused her of seeing someone else; that Appellant left
6 with her still in the car; that Appellant wanted to see
her cell phone to see who she had been calling; that
while he was driving around the neighborhood he was
trying to keep her in the car by pulling on her arms and
purse straps; that she was screaming for him to “Let me
out”; that Appellant was driving recklessly; that he
finally stopped and pushed her out of the car on the
passenger side, where she fell under the car with her
feet next to the rear tire on the driver’s side of the
car; that this driver’s side rear tire went over her
back; that she was in pain; that the rear tire had not
made any marks on her back; that she DENIED that she told
Deputy Hinojosa that the Hydrocodone pills had belonged
to her; that she had in the past been addicted to
Hydrocodone; that she was admitted and released from the
hospital the same day; that there was no evidence that
she had lacerations, broken bones or ruptured organs such
as her lungs, spleen, pancreas, liver, stomach or
intestines; and, that she had no follow-up examination
with a physician. (RR, Vol. 3, pp. 68-1120).
7 Thereafter, the state called Gracie Orta, who
testified as follows: that on the day of this incident
she heard screaming coming from a car which would stop
and start again; that it was a white car with a red
stripe; that a lady was screaming, kicking and trying to
get out of the car; that the car finally left; that she
had no idea what the argument may have been; and, that
she did not see the car strike anyone. (RR, Vol. 3, pp.
114-117).
The next witness called by the state was Israel
Flores, who testified as follows: that on the day of the
incident he and Ms. Orta where in his front yard when he
heard a lady screaming; that he and his sister ran over
to the area where the screams came from and saw a young
lady being pulled into a car with arms and one leg still
hanging out; that Mr. Flores got into his car and pursued
the fleeing vehicle which was white with a red stripe;
that he found the lady by the side of the road about a
mile from his house; that he had no idea what the argument
was about and he had no idea what the victim’s
8 relationship had been with the driver; and, that he did
not see the vehicle strike anyone. (RR, Vol. 3, pp. 118-
123).
Thereafter, the state called Randall Hatton, who
testified as follows: that on the day of the incident a
white car with a red stripe with the passenger door open,
pulled up near the place where he and his son were working
on a car; that a lady in the car was screaming for help;
that he and his son attempted to render assistance but
the car left; that he did not see the car strike anyone;
and, that he had no idea what the argument may have been
about. (RR, Vol. 3, pp. 124-128).
Finally, the state called James Allen Baugus, who
testified as follows: that on the day of the incident he,
along with Randall Hatton and son, basically saw the same
events regarding the car and the victim; that he did
pursued the car with the victim therein and finally found
her standing by the road; that she appeared to be very
upset; that he did not see the car strike anyone; and,
9 that he had no idea what the argument was about. (RR,
Vol. 3, pp. 129-137).
The state rested.
Then counsel for the Appellant notified the court
that the Appellant would, in fact, testify, along with
other witnesses for the defense.
The first defense witness called was Gracie Torres,
who testified as follows: that she was the mother of the
Appellant; that beginning sometime in 2012, Appellant and
Victoria Martinez, the victim, lived in her household for
about a year; that during that time the victim told her
that she had become addicted to Lortab; that in the past
the victim’s mother would give the victim Hydrocodone
because she was always in pain; that the victim had asked
her not to tell Appellant about the Lortab problem
because it would upset the Appellant; that the Appellant
and the victim argued frequently; that the victim was
usually the aggressor in such arguments, screaming and
yelling at the Appellant; that she never saw the
Appellant do anything physically to hurt the victim; that
10 Appellant would just walk away from the victim when she
became argumentative and aggressive; (RR, Vol. 3, pp.
139-152).
Then the defense called Nicole Montalvo, who
testified as follows: that the Appellant was her brother-
in-law; that back in 2012, she lived in the household
with Appellant and the victim, along with other family
members; that she observed the victim taking Hydrocodone
and Lortab on a daily basis; that the Appellant and the
victim would frequently get into arguments because the
victim did not have either of these drugs on hand; that
the victim was usually the aggressor in these arguments
since Appellant did not want her to have these drugs;
that again, the Appellant would try to calm the crises
generated by the victim or would just walk away from such
confrontations regarding the victim’s addiction; and,
that Appellant was never physical with the victim. (RR,
Vol. 3, pp. 152-162).
Finally, the Appellant was sworn and testified as
follows: that on the day of the incident he did have an
11 argument with the victim about her use of those
prescription pills; that there were in the past frequent
arguments regarding such consumption of Hydrocodone and
Lortab; that on the day of this incident he believed that
she had them in her purse; that on the day of the incident
she kept trying to exit the vehicle; that he did not want
her to leave his car because she was depressed because
of a recent miscarriage; that he felt she might abuse the
drugs she had in her possession and injure herself; that
she in fact had had two (2) miscarriages which he
personally believed had brought about such gynecological
problems to include depression; that he never tried to
push her out of his car; that he never tried to choke
her; that he tried to keep her from jumping out of his
car when it was moving; that he never tried to run her
over with his car; and, that when she finally exited his
car, he looked back, saw that she was standing and
concluded that she was only two blocks (five-hundred
[500] yards), more or less, from her home; and, that he
left because she was standing and not lying in the middle
12 of the street, that she was not far from her home, and
that she had no dangerous medications since he had taken
the Hydrocodone from her. (RR, Vol. 3, pp.163-176).
The state called as a rebuttal witness, Deputy Steven
Loving in an effort to clarify the distance that the
victim may have been from her home when she finally left
Appellant’s car. However, it appeared that the Deputy
Loving’s testimony was tentative and in Appellant’s
opinion, inconclusive at best, regarding his estimate of
that particular distance. (RR, Vol. 3, pp. 177-184).
The state rested and closed.
The defense rested and closed.
SUMMARY OF THE ARGUMENT
The state utterly failed to offer sufficient evidence
to support the jury’s finding that Appellant had, beyond
a reasonable doubt, committed the offense of aggravated
assault, all in violation of the 5th and 14th Amendments
to the United States Constitution.
13 SOLE GROUND FOR REVIEW
ARGUMENT AND AUTHORITIES
Appellant contends that the evidence introduced
during the trial was insufficient to support his
conviction under the indictment.
Formerly, Appellant was charged by indictment with
aggravated assault, which stated in part as follows:
“. . . that ANDY RAMOS TORRES on or about 14th day of July, A.D. 2013 and anterior to the presentment of this indictment, in the County and State aforesaid, did then and there intentionally, knowingly or recklessly cause bodily injury to Victoria Martinez by striking the said Victoria Martinez with a deadly weapon, to wit: a vehicle, which in the manner of its
14 use of intended use was then and there capable of causing serious bodily injury or death. (CR, Vol. 1, pp. 5-6).
The courts have held that the state always has the
burden to prove beyond a reasonable doubt that the
accused committed the criminal acts charged in the
indictment, Hightower v. State, 389 S.W.2d 674
(Tex.Crim.App.1965). Furthermore, the state being bound
by its allegations in the indictment must prove them
beyond a reasonable doubt. Crocker v. State, 573 S.W.2d
190 (Tex.Crim.App.1978); Moore v. State, 531 S.W.2d 140
(Tex.Crim.App.1978). The courts have held that in all
criminal cases regarding points of error for insufficient
evidence, the courts must examine the evidence in the
light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Houston
v. State, 663 S.W.2d 455 (Tex Crim.App.1984); Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.
15 [Panel Op] 1982). In addition, the courts have held that
this test for the sufficiency of the evidence would be
applied equally to direct and circumstantial evidence
cases. Wilson v. State, 654 S.W.2d 465
(Tex.Crim.App.1985).
In this particular case, this Court of Criminal
Appeals may note the following:
1. That Victoria Martinez, the alleged victim, would
want the jury to believe that when and if
Appellant’s Ford Mustang allegedly ran over her
upper torso or her back, it was possible for her
to sustain NO broken bones, NO ruptured spleen, NO
ruptured pancreas, NO ruptured liver, NO ruptured
stomach or intestines, or NO serious lacerations;
2. That, other than the alleged victim, no one saw
Appellant run over her with his 3,400 (more or
less) pound car;
16 3. That no one saw Appellant attempt to run over the
alleged victim with his car;
4. That there was evidence that Appellant was
attempting to prevent the alleged victim from
throwing herself out of his car;
5. That there was evidence that the Appellant (with
his knowledge of her past emotional proclivities)
was attempting to prevent the alleged victim from
injuring herself;
6. That the alleged victim had been in the past, (and
by her own admission), addicted to Hydrocodone and
Lortab, which affected her past demeanor and
conduct;
7. That such addiction probably had again, on the day
of the incident, surely been a factor precipitating
her emotional state, since the investigating
officer obtained from her an admission that the
17 Hydrocodone found in her purse that same day,
belonged to her;
8. That if the Court of Appeals examined the exhibits
received into evidence, particularly the one
showing the alleged victim’s face, it may find that
her eyes were those of one who had consumed
substances which had an intoxicating effect
precipitating excessive emotional emoting during
this incident;
9. That the alleged victim’s history, as set forth by
the Appellant, of two (2) unfortunate
miscarriages, may have exacerbated the victim’s
hysterical conduct;
10. That the alleged victim’s history of
argumentation and debate with the Appellant
demonstrated that she was an unhappy,
unpredictable and troubled individual, who could
18 direct abusive outburst against Appellant due to
the demands of her addiction;
11. That if anyone was reckless in their conduct,
the actions of the alleged victim on that day of
the incident were consistent with her past abusive
and irrational conduct brought on by her addiction
and tragic miscarriages; and,
12. Finally, Appellant askes in all humility how
could the jurors render its verdict of guilty,
considering the INCREDULOUS testimony of the
alleged victim who insisted that the Appellant had
run over her with his car, when there was
sufficient evidence before the same jurors that
such an event never happened! Sacre Blue!
Accordingly, the state failed to meet its burden of
proof and the jury should have found that there was, as
a matter of law and fact, insufficient evidence to prove
the elements of the offense of aggravated assault.
Furthermore, citizens should not be convicted by
19 inconclusive and ambiguous evidence, which does not meet
the very high burden of proof as set forth by the time
tested phrases “beyond a reasonable doubt,” or “to a
moral certainty.”
PRAYER FOR RELIEF
For ALL the reasons stated above, Appellant
respectfully requests that the honorable Court of Appeals
reverse the trial court’s judgment, and render a finding
that Appellant is NOT guilty of the offense of aggravated
assault as had been set forth in the indictment against
him.
RESPECTFULLY SUBMITTED:
/S/ Randall E. Pretzer Randall E. Pretzer, PLLC Attorney for Appellant State Bar No. 16279300 P.O. Box 18993 Corpus Christi, Texas 78480 BUS: (361) 883-0499 FAX: (361) 883-2290 E-Mail: repretzer@gmail.com
20 CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's
Brief was delivered to the San Patricio County District
Attorney’s Office, ATTN: Appellant Division, 400 West
Sinton Street, Sinton, Texas 78387, by hand-delivery;
and, to The State Prosecuting Attorney, P.O. Box 13046,
Austin, Texas 78711-3046, on August 24, 2015, by first
class mail.
/S/ Randall E. Pretzer Randall E. Pretzer, PLLC Attorney for Appellant
CERTIFICATE OF COMPLIANCE UNDER RULE 9.4 (i), TRAP
Please be advised that in compliance with Texas Rule
of Appellate Procedure 9.4(i)(3), as amended, I certify
that the number of words in this brief, excluding those
matters listed in Rule 94 (i)(1), is 3,110 as per the
computer count.
/S/ Randall E. Pretzer Randall E. Pretzer, PLLC Attorney for Appellant
21 APPENDIX
22 NUMBER 13-14-00199-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANDY TORRES RAMOS, Appellant, v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Garza and Longoria Memorandum Opinion by Justice Garza Appellant, Andy Torres Ramos, was convicted of aggravated assault, a second-degree felony, and was sentenced to three years’ imprisonment. See TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through Ch. 46, 2015 R.S.). The prison sentence was suspended and Ramos was placed on community supervision for three years. By one issue on appeal, he contends the evidence was insufficient to support his conviction. We affirm.
23 I. BACKGROUND
Jay Hinojosa testified that he was a San Patricio County Sheriff’s deputy on July 14, 2013. On that date, he was dispatched to a call reporting a vehicle assault on County Road 61 near Sinton. When he arrived, the complainant, Victoria Martinez, appeared injured and in pain. Hinojosa took photographs of Martinez’s injuries. The photographs, which were entered into evidence, depict minor bruises and abrasions to Martinez’s hand, leg, neck, and torso. Martinez was taken to a hospital and was treated and released the same day. On cross-examination, in response to a question by defense counsel, Hinojosa stated that Martinez reported that a car “[r]an over the lower portion of her body.” He agreed with defense counsel that Martinez said “that the tire was on her back as he drove away.” He did not, however, take photographs of Martinez’s back. Hinojosa testified that he was later provided with Martinez’s purse, which was recovered from the car that allegedly ran over her. The purse contained, among other things, what Hinojosa believed to be hydrocodone pills. Hinojosa stated that, according to Martinez, the pills belonged to her and were for “an old prescription,” but he did not arrest Martinez because “[t]he purse wasn’t in her possession, the pills were not in her possession at the time.” Hinojosa conceded that a person could possibly become “intoxicated” by using hydrocodone.
Martinez testified that she and Ramos were in a relationship but that they broke up in April. Ramos texted her that he missed her, so she agreed that he could pick her up in his white Ford Mustang and take her to Corpus Christi. They then returned to Sinton.
Martinez testified:
I was about to get out of the car and he wanted to have sex with me. I told him no. He said he was claiming that I was seeing somebody else and that’s why I didn’t want to. From then that’s when it started. As soon as I was about to get out of the car, he took off . . . . I was unable to get out of car. Just—as soon as I was attempting to get out of the car he just floored it, just pushed the gas and took off around the block. . . .
24 I wanted to get out. He was driving very reckless and fast. I was scared. I didn’t want to be in the car with him. I was going to—any chance that I got that he was going to slow down, I wanted to get out of the car. . . .
So we go over the railroad tracks, we take a left. You go left and it curves but he makes a U-turn. He doesn’t go all the way down the road. He makes a U-turn. I almost fell out of the car but he kind of pulls me back because my door was open. At that time he starts slowing down and he’s trying to get my purse. . . .
Um, at that point he tried—he slowed down and he's trying to get the purse and we’re still arguing and I want to get out of the car and I’m yelling at the top of my lungs. My door is slightly open because I’m holding it with my feet. So he finally gets a hold of just the purse strap because it’s still around my shoulder and he just starts pulling it towards him and that’s when it was choking me. . . . I’m scared for my life. I’m trying to scream but I can’t because I’m being choked, I can’t breathe. . . .
At that point, when I told him that I couldn't breathe he stopped, he let go and then he took off. Just drove again, pushed the pedal. . . .
We’re driving, he stops the car, he gets a hold of my purse . . . [f]rom behind me. From that point, when he has the car stopped I had my door open still from with my feet pushing it, so when he stops the car, I’m getting out of the car sitting with my feet out. He gets a hold of the purse—as soon as he gets a hold of the purse, he pushes me. I felt his hand, I end up on the floor. . . [o]utside the car. On the road. Half the road where my head is where the grass starts. I’m under the car. I could feel the heat of the car. I felt the back tire, the driver’s side back tire around my feet and in a split second . . . [t]he tire went over my back.
Martinez stated that she was in “excruciating pain” and “couldn’t really believe what happened.”1 She denied that the hydrocodone pills found in her purse belonged to her, but she admitted having
1 Martinez stated that a female bystander came to her after the incident to ask if she was okay, but the trial court sustained defense counsel’s hearsay objection to that testimony. Later, referring to the bystander, Martinez stated: “I was shocked, I didn’t think the car had went over me. She assured me it
25 a “dependency” on hydrocodone for “about a year or two” several years ago when she was prescribed the medication for a broken hand and “busted head.”
On cross-examination, when asked “how did you exit the vehicle,” Martinez replied:
“When he had stopped, after he had pulled my purse from behind me, he pushed me.” She clarified that the car ran over her back and her feet. She conceded that she suffered no deep lacerations, broken bones, ruptured organs, internal bleeding, or severe bruising as a result of the incident. She also conceded that she was wearing glasses at the time of the incident but that the glasses were not damaged. Martinez denied that she and Ramos were arguing about the hydrocodone pills, and she denied that Ramos was actually trying to restrain her from jumping out of the car.
Three eyewitnesses testified that they observed a young woman in a white Ford Mustang, with the door open, screaming. They later saw the woman outside the car on the ground. They did not see the car strike anyone.
Ramos called two witnesses, his mother and sister-in-law, who each testified that Martinez had a hydrocodone problem. They did not see the incident in question. Ramos himself testified that he got into an argument with Martinez over the hydrocodone pills. He stated that “[s]he kept trying to exit the vehicle.” When asked why he did not want Martinez to leave the car, Ramos stated:
I felt if she would have gotten away and I would have dropped her off at her house, she would have abused her prescription pills and probably would’ve caused bodily harm to herself. She was really depressed coming from a— she had just recently had an abortion—not an abortion—it was a miscarriage and I believe that’s what caused the root of everything. . . .
I was trying to hold on with one hand and, you know, keep her from grabbing, from falling out of the car with the other hand. grabbing, from falling out of the car with the other hand.
______________________________________________________________ did.” However, defense counsel also objected to this statement on hearsay grounds and the trial court sustained the objection and struck the testimony from the record.
26 Ramos denied pushing Martinez out of the car or running over her.
The jury convicted Ramos of aggravated assault and sentenced him to three years’ imprisonment. The trial court suspended the sentence and placed Ramos on community supervision. Ramos was also ordered to pay $14,450 in restitution to Martinez.2 This appeal followed.
II. DISCUSSION
A. Standard of Review and Applicable Law
In reviewing the sufficiency of evidence supporting a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We 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) (citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports conflicting inferences, we must presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010). Sufficiency 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). Such a charge is one that 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. Id. A hypothetically correct jury charge in this case would state that Ramos is guilty if he intentionally, knowingly, or recklessly caused bodily injury to Martinez by striking her with a vehicle.3 See TEX. PENAL CODE ANN. § 22.02.
2 Ramos does not challenge the assessment of restitution on appeal. 3 Ramos does not dispute that a vehicle is a deadly weapon as defined by statute. See TEX. PENAL CODE ANN. § 1.07(a)(17) (West, Westlaw through Ch. 46, 2015 R.S.) (“‘Deadly weapon’ means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious
27 “Bodily injury” means “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West, Westlaw through Ch. 46, 2015 C.S.). A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a) (West, Westlaw through Ch. 46, 2015 R.S.). A person acts knowingly with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Id.
B. Analysis
In arguing that the evidence was insufficient to support his conviction, Ramos makes the following points on appeal: (1) Martinez testified that Ramos ran over her with his car but she suffered no broken bones or other serious injuries; (2) other than Martinez, no one saw the car run over her; (3) no one saw Ramos attempt to run her over; (4) there was evidence that Ramos was trying to prevent Martinez from throwing herself out of the car; (5) Martinez admitted being dependent on hydrocodone in the past; (6) hydrocodone was found in Martinez’s purse on the day of the incident; (7) a photograph of Martinez entered into evidence shows that she “consumed substances which had an intoxicating effect precipitating excessive emotional emoting during this incident”; (9) Martinez’s two miscarriages “may have exacerbated [her] hysterical conduct”; (10) Martinez’s “history of argumentation and debate with [Ramos]” showed that she “could direct abusive outburst against [Ramos] due to the demands of her addiction”; (11) Martinez’s testimony was “incredulous” and there “was sufficient evidence before [the jury] that such an event never happened.” Even assuming the truth of these statements,4 we nevertheless find the evidence sufficient to support the essential elements of the offense. Martinez testified that, shortly after arguing with
bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”). 4 We do not share Ramos’s opinion that the photograph of Martinez entered into evidence shows
that she was intoxicated. There was no testimony indicating that Martinez was intoxicated at the time of the incident. We note that, to the extent Martinez appeared disoriented and flushed in the photograph, that may have been because she was recently run over by a car.
28 Ramos about her phone, Ramos “pushed” her out of the car and she then “felt the back tire, the driver’s side back tire around my feet and in a split second . . . [t]he tire went over my back.” She stated the incident left her in “excruciating pain.” Ramos testified that the argument was about hydrocodone and that, instead of pushing Martinez out of the car, he was trying to prevent her from exiting the car. However, the jury is the sole judge of the credibility of witnesses and the weight to be given the testimony, and it may choose to believe some testimony and disbelieve other testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Therefore, Martinez’s testimony alone was sufficient to establish that Ramos intentionally, knowingly, or recklessly caused her bodily injury by striking her with a vehicle. See TEX. PENAL CODE ANN. § 22.02. Even if we were to agree with Ramos that Martinez’s testimony was unreliable, we may not act as a “thirteenth juror” by substituting our judgment for that of the jury. See Brooks, 323 S.W.3d at 905.
Because the evidence was sufficient to support the verdict, we overrule Ramos’s sole issue.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS GARZA, Justice
Do Not Publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 23rd day of July, 2015.