Ricardo Ramirez v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2008
• Docket: 14-07-00060-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 21, 2008

Affirmed and Memorandum Opinion filed August 21, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00060-CR

RICARDO RAMIREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court

 Brazoria County, Texas

Trial Court Cause No. 51,268

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Ricardo Ramirez of murder, assessed a fine of $10,000, and sentenced him to thirty-seven years confinement in the Texas Department of Criminal Justice, Institutional Division.  In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction.  We affirm.

I.  Factual and Procedural Background

In the early morning hours of February 11, 2006, appellant fatally shot the decedent, Brian Pearson, at a party held by a mutual acquaintance.  The events that transpired before and after the shooting were described by witnesses at appellant=s trial as follows.

The party began the preceding evening at a trailer owned by the parents of John Rambo. Allie Dickenson and Pearson gave appellant a ride to the party.^[1]   Many people attended, and alcohol was served.  At the trailer, appellant removed a black Glock handgun from his waistband and waved it around.  Several times, he removed a bullet from the gun, tossed it in the air, and caught it.  At one point in the evening, appellant disassembled the gun and reassembled it.  He also briefly left the party with another attendee, Ashley Bock, to shoot his gun on a nearby back road.  According to Bock, appellant told her he released his anger by shooting his gun.

After Bock and appellant returned, appellant argued with  Raymond ABubba@ Wilder.  The argument escalated, and according to Wilder, appellant pulled out the gun, cocked it, and then returned it to his waistband.  Wilder explained that by cocking the gun, appellant chambered a bullet.  Wilder further testified that appellant pushed him over some chairs, then reached for the gun again.  Several witnesses testified that, at this point, Pearson Abear-hugged@ the appellant in an effort to defuse the situation.  Pearson and appellant then went into a back room.  Although several people gathered around the room, appellant and Pearson told everyone not to worry and to leave them alone.

Joshua Gay, another party-goer, found appellant=s cell phone and went to the back room to return it.  According to Gay, appellant pulled him into the room and shut the door.  Gay testified that appellant and Pearson were reminiscing and play-fighting in the room.  Gay stated that appellant and Pearson engaged in a slapping match, taunting each other by saying things such as, A[M]y Grandma hits harder than that.@  Gay admitted that he began teasing appellant after Pearson threw two quick punches to appellant=s face.  Appellant then pulled out his gun and pointed it at Pearson=s head, stating, AThat=s all right.  Pearson knows how I play.@  According to Gay, Pearson smiled, leaned into the gun, and told appellant, AYou are not going to squeeze that trigger.@  Gay testified that appellant pulled the trigger, he heard a gunshot, and Pearson fell to the ground.^[2]  Although Gay believed that appellant and Pearson were Aplaying around@ when appellant initially put the gun to Pearson=s head, Gay acknowledged he did not think appellant was Aplaying@ when he pulled the trigger.  Gay stated that after the shooting, appellant tried to hand the gun to Gay, but he would not take it.  Instead, he ran from the room and out of the trailer.

John Rambo testified that he was outside when he heard the gunshot.  He stated that he ran inside the trailer and saw appellant coming out of the back room.  Rambo testified that he could tell from the look on appellant=s face that Asomething bad had happened.@  Rambo stated that when he entered the back room, he found Pearson=s body.  He yelled Pearson=s name and touched his face, but received no response.  Rambo then shouted at everyone to leave, called 911, and went outside.  When the police arrived, Rambo told them appellant had shot Pearson.

In the meantime, appellant had fled the scene.  According to Bock and another party attendee named Derek Baker, appellant jumped into Bock=s car as she and Baker were leaving, shouting at them to Ago!@  Both Bock and Baker testified that appellant appeared distraught and shocked, and he told them he did not know a bullet was in the chamber when he pulled the trigger.  Bock and Baker further stated that appellant seemed suicidal and inconsolable.  Bock drove appellant and Baker to another friend=s residence where they attempted to console appellant and discuss what had happened.  After about an hour, Bock called 911 from another room.  Police officers arrived shortly after her call, and appellant was arrested without incident.

After hearing the evidence and argument of counsel, the trial court instructed the jury  on the defense of mistake-of-fact as follows:

Upon the law of mistake of fact, you are instructed that it is a defense to prosecution that the defendant, 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.

AReasonable belief@ means a belief that would be held by an ordinary and prudent person in the same circumstances as the actor.

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that the defendant . . . intentionally or knowingly pulled the trigger of a handgun, but you further find from the evidence or you have a reasonable doubt thereof, that at the time of such conduct by the defendant . . . that the defendant, through mistake formed a reasonable belief about a matter of fact, to-wit: that the handgun did not have a bullet in its chamber at the time of its discharge, or if you have a reasonable doubt thereof, you will acquit the defendant and find him not guilty.

The jury found appellant guilty of murder as charged in the indictment, assessed punishment at thirty-seven years confinement in the Texas Department of Criminal Justice, Institutional Division, and imposed a $10,000 fine.  The trial court sentenced appellant accordingly, and this appeal timely ensued.

II.  Issues Presented

In two issues, appellant challenges the legal and factually sufficiency of the evidence supporting the jury=s conclusion that he intentionally or knowingly caused Pearson=s death.

III.  Standard of Review

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2789 (1979).  Rather, we examine all 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 offense beyond a reasonable doubt.  Id. at 319, 99 S. Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc).We consider both direct and circumstantial evidence and all reasonable inferences that may be drawn therefrom in making our determination.  See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

When reviewing the factual sufficiency of the evidence, on the other hand, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)).  Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). We do not re‑evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).

IV.  Analysis

A person commits murder if (a) he intentionally or knowingly causes the death of an individual, or (b) with intent to cause serious bodily injury, he commits an act clearly dangerous to human life.  Tex. Penal Code Ann. ' 19.02(b)(1), (2) (Vernon 2003).  Appellant confines his sufficiency challenge to evidence of his mental state, arguing that the State failed to establish that he intentionally or knowingly caused Pearson=s death.  Our discussion therefore focuses on the evidence relevant to the jury=s determination of whether appellant acted intentionally or knowingly.  An act is intentional when it is the actor=s Aconscious objective or desire to engage in the conduct or cause the result.@  Id. ' 6.03(a).  AA person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.@  Id. ' 6.03(b). 

Our review is not confined to direct evidence, and intent is proven most often through the circumstantial evidence surrounding the offense.  Hernandez v. State, 819 S.W.2d 806, 819 (Tex. Crim. App. 1991) (en banc).  Circumstantial evidence, however, is as probative of guilt as direct evidence.  Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).  Jurors may infer intent from facts that tend to prove its existence, such as the defendant=s acts, words, and conduct.  Id. at 50.  Intent to kill also may be inferred from the use of deadly weapon,^[3] unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Godsey v. State, 719 S.W.2d 578, 580B81 (Tex. Crim. App. 1986) (en banc); Dominguez v. State, 125 S.W.3d 755, 762 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).

Here, appellant pointed a loaded firearm to Pearson=s head and pulled the trigger.  Appellant relies on In re J.D.P. to support his contention that his behavior was reckless rather than intentional.  85 S.W.3d 420, 425 (Tex. App.CFort Worth 2002, no pet.).  In that case, a juvenile was adjudicated delinquent for reckless injury to a child.  Id.  The juvenile appellant was seen unloading the gun prior to pointing it at the victim and pulling the trigger.  Id. at 424.  The Second Court of Appeals stated, AThe fact that [a]ppellant did not know there was a bullet in the chamber is the very reason he was charged with reckless injury to a child, rather than intentional injury to a child.@  Id. at 425.  Here, Wilder testified that appellant cocked the gun and chambered a bullet shortly before pointing the gun at Pearson, and there is no evidence that appellant subsequently attempted to unload the gun before  pointing it at Pearson and pulling the trigger.  From this evidence, a reasonable jury could have inferred that appellant was aware that his gun was loaded when he went into the back room with Pearson.  Although several witnesses testified that appellant appeared distraught and shocked and repeatedly claimed that he did not know a bullet was in the chamber after the shooting, A[a] defendant=s statement that he did not intend to kill cannot be plucked out of the record and examined in a vacuum.@  Navarro v. State, 863 S.W.2d 191, 205 (Tex. App.CAustin 1993) (citing Godsey, 719 S.W.2d at 584), pet. ref=d, 891 S.W.2d 648 (Tex. Crim. App. 1994) (en banc); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (en banc) (defendant=s statement that he did not intend to kill the victim did not negate other evidence of intent to kill). 

The jury also heard evidence that appellant was involved in an altercation shortly before the shooting and was visibly angry when Pearson intervened.  Joshua Gay, the only eyewitness to the murder, testified that the shooting occurred immediately after Pearson punched appellant in the face.   Moreover, Ashley Bock testified that appellant told her he released his anger by shooting his gun, and Gay acknowledged that he did not think appellant was Aplaying around@ when he pulled the trigger.  From this evidence, a reasonable jury could have inferred that appellant was angry with Pearson and pulled the trigger of the loaded gun with the intention of firing a shot at him.^[4]  Finally, rather than staying at the location and attempting to determine if the decedent was alive, offer help, or turn himself into authorities, appellant immediately left the trailer, jumped into a car, and yelled at the driver to Ago!@^[5] 

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have inferred an intent to kill based on appellant=s actions.  See Ramirez v. State, 229 S.W.3d 725, 729B30 (Tex. App.CSan Antonio 2007, pet. ref=d) (concluding jury could infer intent to kill based on the appellant=s failure to call police or emergency personnel after he shot the decedent, delay in taking the decedent to the hospital, the conflicting stories the appellant provided to various witnesses, and the fact that the appellant left after hospital personnel asked him to stay).  We therefore overrule appellant=s first issue.  Further, viewing all the evidence in a neutral light, we cannot say that the jury=s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.^[6]  See id. at 730; Dominguez, 125 S.W.3d at 762 (determining jury was entitled to infer intent to kill from appellant=s use of a deadly weapon in a deadly manner).   We overrule appellant=s second issue.

V.  Conclusion

Having determined that the evidence is both legally and factually sufficient to support the jury=s verdict, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 21, 2008.

Panel consists of Justices Fowler, Seymore and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Several witnesses testified that appellant and Pearson were friends or friendly, but Dickenson and Jonathan Ashley, who was not present at the party, testified that Pearson and appellant were not friends. 

^[2]  The medical examiner testified that the decedent died from a single gun-shot wound to the head and that the muzzle of the gun was against the decedent=s head when the gun was fired.

^[3]  A firearm is a deadly weapon as a matter of law.  See Tex. Penal Code Ann. ' 1.07(a)(17)(A) (Vernon Supp. 2007).

^[4]  AMotive is a significant circumstance indicating guilt.@  Guevara, 152 S.W.3d at 50.

^[5]  Leaving the scene of a crime indicates a consciousness of guilt.  See, e.g., Yost v. State, 222 S.W.3d 865, 875 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d) (holding that evidence that the defendant left the scene of the offense reflected his consciousness of guilt).

^[6]  Moreover, as noted above, the jury was charged on the defense of mistake-of-fact.  Based on its verdict, the jury implicitly rejected appellant=s claim that he reasonably believed there was no bullet in the chamber of the gun when it discharged.