Opinion
NO. 02-16-00185-CR
10-12-2017
VICTOR RAMIRES APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1445507D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Victor Ramires appeals his conviction for aggravated assault on a public servant while using a deadly weapon. In seven issues, Ramires argues that the trial court made several evidentiary errors and that he was denied his right to counsel. We will affirm.
II. BACKGROUND
On February 17, 2016, Tarrant County Sheriff's deputies prepared to return Ramires from John Peter Smith Hospital back to jail. Informed that he would be discharged from the hospital, deputies unchained him from the hospital bed on which he lay, ordered him to change into his jail uniform, and searched him after he had finished changing.
Because Ramires had previously lost both his legs below the knee, he had to be taken to the hospital exit in a wheelchair. According to one of the officers who testified at trial, normal jail procedure is to chain an inmate to a wheelchair by his leg, but this was not possible in Ramires's case, so the guard used a "belly chain"—a restraint that locks around an inmate's waist and is connected by short chains to both wrists—to secure him. Ramires protested the use of the chain, but the deputy insisted and handcuffed his arm to the arm of the wheelchair.
After he and another officer secured Ramires in the van, Detention Officer Willie Clayborn began to drive the van from the hospital to the jail. As he drove, Clayborn took a right turn and then heard a scream of "distress" or "pain" from the back of the van. Ramires cried out, "You turned the corner too fast." Clayborn said that he was skeptical because the stoplight had just changed and that he had negotiated the turn "real slow" to ensure that the wheelchair "stayed secure." Ramires was nevertheless "yelling and screaming." Worried about Ramires's welfare, Clayborn pulled onto a side street to get out of the flow of traffic and parked by the curb. Looking in his rearview mirror, Clayborn was startled to realize that he could see the back of the wheelchair but could not see Ramires. He got out and tried to peer through the side door window, but the sun's reflection was so bright that he could not see inside. When Clayborn walked to the back of the van and opened the doors, he discovered that Ramires was apparently wedged between part of the lifting apparatus inside the van and the arm of his wheelchair, which had twisted slightly from where it had originally been strapped down. Fearing that Ramires was in great pain from the way he sounded, Clayborn asked if he was hurt. Ramires again repeated his accusation that Clayborn had "turned the corner too fast." Clayborn then lowered the wheelchair ramp as he responded, "No way I could have turned the corner fast."
Clayborn entered the van and unlocked Ramires's wrist from the belly chain so he could get him resettled into his seat. As soon as Clayborn got Ramires seated properly in the wheelchair, Ramires grabbed Clayborn in a bear hug, pinning his arms. Yanking Clayborn's gun belt, Ramires said, "I got your gun now. I got your gun now. . . . I'm going to kill you, mother f****r. I'm going to kill you." The pair struggled. But because of a special release mechanism on the holster, Ramires was unable to gain control of the firearm.
Unable to break Ramires's grip, Clayborn started "banging" both their bodies against the interior of the van. Eventually, Clayborn was able to work his baton out of his belt, and he struck Ramires approximately four times, each time ordering him: "Let go."
After Ramires loosened his grip, Clayborn managed to slide his hand under Ramires's chin and pried up, lifting both their bodies. As he did this, Clayborn's foot slipped, and he hit the edge of the van as he fell. Stunned, he dropped his baton and reached down with his hand to break his fall. By coincidence, the baton was just below him, and he picked it up and started swinging again.
From there, Ramires leaned forward and made a thrusting motion towards Clayborn with a "shiny" piece of aluminum, about seven or eight inches long, that had been sharpened at one end and wrapped with white masking tape on the other. Clayborn said that he felt as if one knife blow had struck his glasses. He then swung at Ramires's right hand with the baton, knocking the weapon away. Ramires then declared, "That's not mine," and he did not try to recover the knife from where it had fallen on the lift.
It was not until after the struggle that Clayborn discovered that he had been stabbed in the face. In all, Clayborn suffered three "deep scratches" to his face and head, as well as torn cartilage in his knee and a severely strained shoulder. Due to his injuries, he was off work completely for almost a month, and by the time of trial, nearly three months later, Clayborn was still assigned only light duty. A jury found Ramires guilty of aggravated assault against a public servant, and it also found that he had used a deadly weapon during the assault.
During the punishment phase, the State adduced evidence that Ramires had sexually abused a child, K.C., while he had been living with K.C.'s mother. Ramires had become involved with K.C.'s mother when K.C. was still a baby, and he had become like a "stepfather" to her. He began sexually abusing her when she was five or six. Initially, he had her masturbate him, but he soon progressed to having her perform oral sex. The abuse continued as she got older, and Ramires began having intercourse with and performing oral sex on her as time progressed. Even though Ramires and K.C.'s mother split up when K.C. was thirteen or fourteen, he continued to sexually assault the teenager when she visited him. Ramires even told the young girl often that when she turned sixteen, they would run away together. Concluding that she did not want to leave her family, K.C. averred that she contemplated suicide. K.C. finally reported the abuse in late 2014 when she discovered that Ramires had attempted to assault her twin sister, M.C. Ramires, nevertheless, sexually assaulted K.C. a final time on Valentine's Day of 2015.
M.C. confirmed that on Christmas Eve of 2014, when she was fourteen years old and visiting Ramires with her sister K.C., he had approached her wearing only boxer shorts while visibly aroused. Lying next to her, Ramires pressed his erection against the teenager's buttocks as he told her he could "fix [their] relationship" and suggested that they could be "more intimate." Disgusted, M.C. feigned exhaustion, and Ramires went back to his room.
The State also introduced evidence that Ramires had used illicit drugs in front of the children (he and the twins' mother had a son of their own), had been convicted of possession of marijuana and placed on deferred adjudication, and had been placed on probation as a juvenile for unlawful carrying of a weapon and possession of marijuana.
Additionally, the State provided evidence that Ramires did not appear for a bond hearing while awaiting trial on charges of continuous sexual abuse and indecency with a child. He was apprehended several months later at a waterpark with his girlfriend as they tried to leave the area. As a result of his failure to appear, Ramires had to wear a GPS ankle monitor as a condition of a second pretrial bond. After wearing the monitor for only a month, he failed to appear for another court date and cut off the ankle monitor. Officers with the North Texas Fugitive Task Force staked out a pet store where Ramires's girlfriend worked, in hopes of apprehending him if he attempted to contact her. Apparently tipped off to the surveillance, Ramires accelerated through a parking lot across the street, ran a red light, and led officers on a high-speed automobile chase that only ended when he lost control of his vehicle and crashed it. He fled the wreck on foot. Police units combed the area, and Ramires was eventually found lying on railroad tracks, with his feet mangled.
Ramires admitted, during the punishment stage, that he had fashioned one knife out of a piece of metal that he removed from his wheelchair, was "in the process" of making another, and had kept both hidden in the wheelchair. He claimed that he had made them only to protect himself from several "mental" prisoners he occasionally encountered in the jail infirmary. He denied attacking Clayborn and asserted that they had fought only because Clayborn had begun to beat him with his baton after Clayborn had placed him back into his wheelchair. He also denied pulling the knife on Clayborn and maintained that the deputy's face became scratched during their struggle when he grabbed it in an effort to stop the beating. According to Ramires, the knife fell out of the wheelchair when the chair broke as a result of their struggle.
Ramires also denied sexually assaulting K.C., declaring repeatedly, "I would never ever touch my daughter in that way." He suggested that both girls had lied because they wished to side with their mother against him, as they supposedly always had in the past.
The jury sentenced Ramires to twenty-five years' confinement. The trial court rendered judgment accordingly, and this appeal followed.
III. DISCUSSION
A. Jury Argument
In his first issue, Ramires argues that the trial court reversibly erred by overruling his objection to the prosecutor's closing argument made at the guilt-innocence phase of trial. Specifically, Ramires argues that it was improper jury argument for the prosecutor to claim that "[t]here's no broken wheelchair." The State contends that this was a proper summation of the evidence adduced at trial. We agree with the State.
During its case-in-chief, the State presented the testimony of Deputy Pamela Smith, a crime scene investigator with the Tarrant County Sheriff's Department. Smith testified that as part of her investigation of the transport event, she took "numerous photographs" of Ramires's injuries and the van in which the assault occurred. On cross-examination, defense counsel asked Smith: "Why didn't you take pictures of the broken wheelchair that was in the back of the van? Did you notice . . . ." After the court overruled the State's objection, defense counsel repeated the question, and Smith responded, "I don't know what you're talking about." Defense counsel then asked, "Did you notice if it was broken at all?" Smith replied, "No." As the State points out, no other witness testified about a broken wheelchair, either on direct or cross-examination.
At closing argument at the guilt-innocence phase, during its rebuttal, and after addressing the State's theory of the case, the prosecutor made the following statement,
I want to remind you that the things the Defense says are not evidence. Okay. The evidence that you've heard is the testimony, the exhibits, the items that have been admitted into evidence and all the testimony. One example of that. Defense asked Officer Smith, did you get a photo of the broken wheelchair? She says, I have no idea what you're talking about. There's no broken wheelchair.Defense counsel objected. The trial court overruled the objection, and the prosecutor continued,
There was not one piece of evidence in front of you that that wheelchair was broken. Okay. That is not evidence. That was part of his question. That's not a piece of evidence. These are extremely skilled Defense attorneys. They know what they're doing. . . They've crafted their questions in a way to make the points that they're trying to make, but that is not evidence.
We review a trial court's ruling on an objection asserting improper jury argument for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Whitney v. State, 396 S.W.3d 696, 703-04 (Tex. App.—Fort Worth 2013, pet. ref'd). A trial court does not abuse its discretion unless its ruling is arbitrary and unreasonable—the mere fact that a reviewing court may have decided the matter differently does not demonstrate an abuse of discretion. Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005, pet. ref'd). When examining challenges to jury argument, the reviewing court should consider the remark in the context in which it appears. Jackson v. State, 17 S.W.3d 664, 675 (Tex. Crim. App. 2000).
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial in order to arrive at a just and reasonable conclusion based solely on the evidence. Harris v. State, 122 S.W.3d 871, 883 (Tex. App.—Fort Worth 2003, pets. ref'd). Permissible jury argument generally falls into one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, or (4) a plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010), cert. denied, 565 U.S. 830 (2011). In summarizing the evidence, the State is entitled to argue that the jury should not be concerned with evidence not presented at trial. See Harris, 122 S.W.3d at 884-85 ("The comment was merely a summation of the evidence presented at trial, coupled with an argument that the jury should not be concerned with evidence not presented at trial.").
Here, the trial court did not abuse its discretion because the jury would not have misunderstood the prosecutor's remark to suggest that Smith had actually denied that a broken wheelchair existed. Instead, the prosecutor's argument was a statement to the jury that it should not be concerned with evidence not presented at trial. Indeed, the prosecutor made it clear what her argument was after the trial court overruled defense counsel's objection when she stated, "There was not one piece of evidence in front of you that that wheelchair was broken." Moreover, the complained-of statement was preceded by the prosecutor's remark that "the things the Defense says are not evidence."
The prosecutor's observations before the remark that "the things the Defense says are not evidence," coupled with her emphasis after the comment that characterization of the wheelchair as "broken" was "not evidence" but "part of [defense counsel's] question," made it plain that the prosecutor was making a reasonable summation of Smith's expressed incomprehension that a broken wheelchair existed and the lack of evidence that the wheelchair had been damaged. See Harris, 122 S.W.3d at 884-85. We overrule Ramires's first issue.
B. Defense's Opening Statement
In his second issue, Ramires argues that the trial court erred by sustaining the State's objection to, and instructing the jury to disregard part of, defense counsel's opening statement made at the punishment hearing. We disagree.
We review a trial court's rulings on opening statements for an abuse of discretion. See Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006, no pet.). It is an abuse of discretion only if the trial court's ruling is outside the "zone of reasonable disagreement." Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). A trial court's ruling should be upheld so long as it is correct under any valid legal theory, regardless of whether the reason was argued before the court. See Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012).
An opening statement in which a party engages in jury argument, rather than stating to the jury the nature of issues and the evidence that the party expects to be produced, is improper. See Hullaby v. State, 911 S.W.2d 921, 927 (Tex. App.—Fort Worth 1995, pet. ref'd).
Here, prior to trial, the State filed a motion in limine which in part requested that the parties "not [] mention, refer to . . . or bring to the attention of the jury . . . without first approaching the bench and obtaining a ruling on [the] admissibility" of "the decision making process of the District Attorney's Office as to which of the Defendant's criminal cases to proceed to trial on first, as such would be speculation and/or hearsay on the part of any witness, and not relevant to issues to be decided by the jury." Ramires did not object to this request. And the court granted the motion.
During opening statement at the punishment phase, defense counsel pointed out to the jury that Ramires was facing several additional charges, including continuous sexual assault of a child and evading arrest, as well as punishment for the offense for which he had just been convicted. Defense counsel then stated, "And so I want you to stop and think, why did they proceed the way that they did. Why did they proceed --." The State objected that the remark constituted "a violation of the Court's prior order." After sustaining the State's objection, the court, at the request of the prosecutor, instructed the jury to disregard "that last comment."
We cannot conclude that the trial court abused its discretion in this case. Contrary to the court's order, defense counsel seemed to have specifically urged the jury to speculate about why the prosecution may have brought the present charge to trial before two older cases, without first obtaining the court's permission. It is within the zone of reasonable disagreement whether defense counsel's statement to the jury violated the motion in limine and whether it constituted an improper opening statement. And one of the remedies available to a trial court in its discretion in conducting trial is to sustain an objection and instruct the jury to disregard a comment. See Lusk v. State, 82 S.W.3d 57, 63 (Tex. App.—Amarillo 2002, pet ref'd) ("The trial court's remedy of instructing the jury to disregard the testimony objected to . . . was one of the broad range of remedies available to the trial court in exercising its discretion as to conduct of the trial."). Moreover, it was incumbent upon Ramires to explain why the complained-of statement needed to be before the jury, and he failed to do so. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). We overrule Ramires's second issue.
C. The State's Hearsay Objections
In his third issue, Ramires argues that the trial court abused its discretion by sustaining the State's hearsay objections to defense counsel's cross-examination of K.C. We disagree.
During cross-examination, defense counsel sought to admit two exhibits that purportedly were photographs taken of K.C.'s texting screen from her phone. Defense counsel asked, and the trial court granted, that these exhibits be admitted for record purposes only. Afterwards, Defense counsel asked K.C. about the text messages. After K.C. acknowledged that she had sent some but not all of the text messages that appear in these two exhibits, defense counsel asked what was meant by the text, "You are going to get it for what you did to my sister"—a text that does not appear on the face of either exhibit. The State objected that this statement was hearsay. The trial court sustained the objection. Defense counsel then argued that the statement was admissible as a statement by a party opponent, which the trial court also rejected.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard—we will not reverse a decision if it is within the zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We must uphold the trial court's decision if it is reasonably supported by the record and correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Here, as the State points out, the text that defense counsel referred to is not a part of either exhibit. Furthermore, the exhibits were not admissible evidence because they had only been admitted for record purposes. Moreover, defense counsel never asked K.C. if she had made or sent the objected-to statement in a text, and she never testified that she had; thus, the statement had never been authenticated. See Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) ("Evidence has no relevance if it is not authentically what its proponent claims it to be."). We conclude and hold that the trial court did not abuse its discretion by sustaining the State's objection to the statement. We overrule Ramires's third issue.
D. Examination Nurse Reading Her Notes Regarding K.C.
In his fourth issue, Ramires argues that the trial court reversibly erred during the punishment phase by permitting the nurse examiner "to read aloud" K.C.'s statements made to the nurse examiner during examination. We disagree.
As previously stated, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard—we will not reverse a decision if it is within the zone of reasonable disagreement. Tillman, 354 S.W.3d at 435.
Generally, hearsay is inadmissible. Tex. R. Evid. 801(d). But an exception is made to the hearsay rule for statements "made for--and [] reasonably pertinent to--medical diagnosis or treatment; and [describing] medical history; past or present symptoms or sensations; their inception; or their general cause." Tex. R. Evid. 803(4). This exception has been applied to admit statements by child victims of sexual assault to medical care providers regarding the source of their injuries. See Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref'd); see also Houston v. State, No. 04-07-00256-CR, 2008 WL 2434126, at *1 (Tex. App.—San Antonio June 18, 2008, pet. ref'd) (mem. op., not designated for publication). And a trial court does not abuse its discretion by allowing a medical care provider to read her detailed notes taken during a sexual assault examination. Fuller v. State, No. 04-08-00446-CR, 2009 WL 2045298, at *1 (Tex. App.—San Antonio July 15, 2009, pet ref'd) (mem. op., not designated for publication).
Here, the nurse examiner testified that she had elicited K.C.'s statement about her sexual abuse because "it help[ed her] know what [she] need[ed] to look for as far as what . . .to test for based on the contact that the child describe[d]." Specifically, the nurse examiner averred that an account of the abuse helped her know what she needed to look for in her "head-to-toe exam" and to know whether to "test for and treat any sexually transmitted diseases." She also testified that she explained the purpose of the interview to K.C. before it began. The nurse examiner further informed the jury that she created a report every time she performed a sexual assault examination in order to "document" her "interaction with the child." The State thus established that K.C.'s statement describing her history of sexual assault was admissible under Rule 803(4) as a statement for the purposes of medical diagnosis or treatment. Tex. R. Evid. 803(4). Thus, the trial court did not abuse its discretion by allowing the nurse examiner to read her detailed notes and therefore did not err by overruling Ramires's objection. See Fuller, No. 04-08-00446-CR, 2009 WL 2045298, at *1. We overrule Ramires's fourth issue.
E. Ramires's Nonresponsive Answer
In his fifth issue, Ramires argues that the trial court reversibly erred by sustaining the State's objection to, and instructing the jury to disregard, one of his answers made to defense counsel during direct examination at the punishment phase of trial. Specifically, defense counsel asked Ramires, "Do you feel that [K.C.] maybe -- and without getting into anything that was said -- kind of instigat[ed] things at times?" Ramires responded, "I think this last situation, [K.C.] was pregnant with [her mother's boyfriend's] baby, which was a sexual offender that I called and turned in." The State objected that his answer was "nonresponsive and outside the record." The trial court sustained the objection and instructed the jury to disregard the answer.
Again, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard—we will not reverse a decision if it is within the zone of reasonable disagreement. Tillman, 354 S.W.3d at 435. And a trial court may properly instruct the jury to disregard a witness's nonresponsive answer. See Morgan v. State, 515 S.W.2d 278, 281 (Tex. Crim. App. 1974) (stating that when a witness's answer is "nonresponsive," it can be "cured by a proper objection and motion that the jury be instructed to disregard").
Here, Ramires's response to defense counsel's question whether K.C. instigated things was nonresponsive. Indeed, there is no connection between whether K.C.'s mother's ex-boyfriend is a sexual offender that Ramires "called and turned in" and the inquiry of whether K.C. is an instigator. Thus, the trial court did not abuse its discretion by sustaining the State's objection and instructing the jury to disregard the answer. See Morgan, 515 S.W.2d at 281. We overrule Ramires's fifth issue.
F. Ramires's Right to Counsel
In his sixth issue, Ramires argues that the trial court abused its discretion and denied him his right to counsel by instructing the jury to disregard part of defense counsel's closing argument at punishment. We disagree.
During closing argument at punishment, defense counsel stated that "the State wants you to use the information that they proved up to you in punishment to taint your sentence." The State objected to this, and the trial court instructed the jury to "refer to the same part of the Court's Charge that I referred you to previously." The State then asked the trial court to instruct the jury to disregard defense counsel's statement, which the trial court did.
A trial court "is vested with a large discretion" in the latitude it may allow counsel for argument, and should be reversed "only . . . when obviously abused." Eckert v. State, 672 S.W.2d 600, 603 (Tex. App.—Austin 1984, pet. ref'd).
It is well settled that both the State and the accused are entitled to discuss facts admitted into evidence and to give reasonable explanations of the law. See id. Neither party, however, may accuse opposing counsel of bad faith or insincerity. See Fuentes v. State, 664 S.W.2d 333, 335-36 (Tex. Crim. App. [Panel Op.] 1984) (reasoning that prosecutor improperly accused defense counsel of "bad faith and insincerity"); see also Barker v. State, 931 S.W.2d 344, 348 (Tex. App.—Fort Worth 1996, pet. ref'd) (explaining that rules of closing argument apply to both parties).
Here, the trial court could have concluded that defense counsel's comment was disparaging and accusing the State of bad faith and insincerity. We cannot conclude that the trial court's discretion was "obviously abused" by sustaining the State's objection to the statement and by instructing the jury to disregard it. See Eckert, 672 S.W.2d at 603. We overrule Ramires's sixth issue.
G. Cumulative Effect of First Six Alleged Errors
In his seventh issue, Ramires contends that, cumulatively, errors one through six were so great that they demand a reversal. Though it is possible for a number of errors to cumulatively rise to the point where they become harmful, the court of criminal appeals has stated that it has never found that "non-errors may in their cumulative effect cause error." Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009). Because we have concluded that the trial court did not err in Ramires's first through sixth alleged errors, their cumulative effect is not error as well. See id. We overrule Ramires's seventh issue.
IV. CONCLUSION
Having overruled all seven of Ramires's issues on appeal, we affirm the trial court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: WALKER, MEIER, and KERR, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: October 12, 2017