Juan R. Ramirez v. State ( 2006 )

  Opinion issued June 8, 2006

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-05-00383-CR

          01-05-00384-CR

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JUAN R. RAMIREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 984839 & 984840

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MEMORANDUM OPINION

          A jury found appellant, Juan R. Ramirez, guilty of two counts of the felony offense of intoxication assault, with a deadly weapon. Appellant entered a plea of true to the allegation in an enhancement paragraph that he had a prior felony conviction, and, after finding the enhancement allegation true, the jury assessed punishment at 15 years in prison. In two points of error, appellant contends that the evidence was legally and factually insufficient (1) “to sustain the verdict as to the element of ‘driver’ or ‘operator’ of a motor vehicle” and (2) “to sustain the punishment verdict on the proof and evidence of the prior conviction.” We affirm.

Background

          In the early morning hours of April 3, 2004, Chuck Ratcliff, Jr.’s Mustang was broadsided by a Cadillac that ran a red light and was driving more than 20 miles per hour over the speed limit. Ratcliff’s airbags deployed, so he and his front-seat passenger, Navid Hajazimzanjani (“Navid”), were relatively unharmed. The two backseat passengers, Tony Lesser and John Holloway, the complainants, however, were knocked unconscious, could not be revived, and were “kind of snoring and making gurgling noises.”

          The Cadillac, which was owned by appellant’s sister, came to a stop by a tree that prevented the driver’s door from opening. After the impact, Ratcliff looked over at the Mustang and saw a man wearing a light-colored t-shirt and blue jeans standing a few feet from the passenger side doors of the Cadillac, touching his forehead, and looking down. He then saw a second man wearing a t-shirt and light-colored baggy pants, crawling out of the Cadillac through the front passenger side door. The second man, who was later determined to be appellant, did not appear to be injured or bleeding.

          Navid testified that he looked over and saw the two men and noticed that the man on the passenger side of the Cadillac was bleeding from his head onto his shirt and was constantly checking his wounds. Navid was about to call for emergency assistance when Officer Charles Allen arrived. Officer Allen, from the Houston Police Department, Traffic and Accident Enforcement, DWI Task Force, was in the area when he heard the accident.

          Officer Allen asked appellant for his driver’s license, but he did not have one. He told appellant and the bleeding man from the Cadillac to sit on the sidewalk while he checked on the Mustang’s occupants. Officer Allen discovered the severity of Lessar’s and Holloway’s injuries and called for a “heavy rescue unit.” While making the call, a wrecker driver yelled, “They’re running.” Officer Allen turned to see appellant and the bleeding man run in different directions. Officer Allen chased appellant through a park and caught him. Appellant explained that he ran because he did not have a driver’s license.

          Appellant, who had no blood, cuts, or bruises on his face or head, was taken to the hospital for a blood test. Blood test results showed that appellant had a blood/alcohol content of .137 grams per 100 milliliters of blood.

          Officer Allen examined the Cadillac and found that the driver’s airbag had deployed, and there was no blood on the airbag. There was a crack on the windshield on the passenger’s side, and there was fresh blood by the crack on the windshield as well as on the seats, windows, and door frame on the passenger’s side of the car. Officer Allen testified that he believed that the man who was bleeding was in the passenger’s seat, without his seatbelt on, at the time of the collision. Frank Martinez from the Houston Police Department, Crime Scene Unit, Vehicle Examiner, testified that the blood samples collected from the Cadillac indicated that it was not appellant’s blood.

          The medical records reflected that Holloway suffered a lacerated spleen and a closed head injury resulting in a nine-day hospitalization and months of physical therapy. Lesser had an acute subdural hematoma that required neurosurgery and a two-week hospitalization. Lesser spent one and one half months in rehabilitation.

Sufficiency   In two points of error, appellant contends that the evidence was legally and factually insufficient (1) “to sustain the verdict as to the element of ‘driver’ or ‘operator’ of a motor vehicle” and (2) “to sustain the punishment verdict on the proof and evidence of the prior conviction.”

Standard of Review

          We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

          In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). In conducting a factual sufficiency review, we must discuss the evidence that appellant asserts is most important in allegedly undermining the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In conducting the factual sufficiency review, we must also employ appropriate deference to the fact finder so that we do not substitute our judgment for that of the fact finder. Zuniga v. State, 144 S.W.3d 477, 481–82 (Tex. Crim. App. 2004). Unless the available record clearly reveals a different result is appropriate, an appellate court conducting a factual sufficiency review must defer to the fact finder’s determination concerning the weight given contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

“Driver” or “Operator”

          In point of error one, appellant argues that the evidence is legally and factually insufficient “to sustain the verdict as to the element of ‘driver’ or ‘operator’ of a motor vehicle.”

          To sustain a conviction for intoxication assault, the State must prove beyond a reasonable doubt that a defendant operated a motor vehicle in a public place while intoxicated and, by reason of that intoxication, caused serious bodily injury to another. Tex. Pen. Code. Ann. § 49.07 (Vernon 2003). Appellant, who testified at trial, admitted all of the elements of the offense except that he was the operator of the vehicle.

          Navid testified that he saw appellant get out of the passenger’s side door of the Cadillac immediately after the other man who was bleeding. Ratcliff testified that, right after the collision, he saw a man, wearing a t-shirt and blue jeans, bleeding and standing a few feet away from the car. He then saw a second man, who was wearing a t-shirt and light-colored baggy pants and did not appear to be injured, crawl out of the passenger’s side door. Appellant testified that he was wearing white, baggy pants the night of the accident.

          Appellant fled the scene. Flight is a circumstance from which an inference of guilt can be drawn. McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App. 1980). Appellant said that he ran from the scene because he did not have a driver’s license. It can be inferred that, because the driver is the only one who needs a driver’s license, appellant must have been the driver.

          Further, the physical evidence indicates that appellant was the driver of the Cadillac. Appellant, unlike his friend, was not bleeding. There was no blood on the driver’s side airbag, but there was blood on the cracked windshield on the passenger’s side of the car that had no airbag. Moreover, a DNA analysis revealed that the blood found in the car did not match appellant’s blood.

          Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that appellant was the driver of the Cadillac. Accordingly, we hold that the evidence was legally sufficient to support the conviction.

          In respect to his argument that the evidence was factually insufficient to support his conviction, appellant notes that he testified through an interpreter that he “got drunk” at a club, and he asked a friend to drive him home. He testified that he got in the back seat of the Cadillac and fell asleep. His friend woke him up after the accident, and appellant crawled out of the back passenger’s door. Appellant claims that it was his friend, not appellant, who ran from the police. However, the physical and other circumstantial evidence as outlined above was more than ample to support the conviction.

          Viewing the evidence in a neutral light, we hold that the evidence was not so weak that the verdict was clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. Accordingly, we hold that there was factually sufficient evidence to support the conviction.

          We overrule point of error one.

Enhancement

          In point of error two, appellant argues that the evidence is legally and factually insufficient “to sustain the punishment verdict on the proof and evidence of the prior conviction” because it does not establish that he had been previously convicted of a felony.

          A plea of true to enhancement allegations and stipulations to prior convictions waives challenges to the sufficiency of the evidence supporting those enhancement allegations. Harrison v. State, 950 S.W.2d 419, 422 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Appellant pled true to the enhancement paragraphs, thus waiving his right to challenge the sufficiency. Appellant argues, however, that he has not waived this challenge because the stipulation of facts did not contain the correct cause number and the offense in the stipulation was not the charge named in the indictment.

          A conviction is not void for purposes of enhancement simply because of wrongly-transposed digits in the cause number. Kirby v. State, 681 S.W.2d 131, 133 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d). Considering the judgment used to enhance the appellant’s conviction is facially accurate, the court cannot assume that the stipulation of evidence is more accurate. McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975). Unless appellant can show that he was prejudiced by this mistake and that he could not discern which offense the State intended to use for his enhancement, then the court cannot find any error. Bryant v. State, 2002 WL 27573, at *3 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (not designated for publication).         Here, appellant was aware of which offenses the State intended to use for enhancement purposes, and he has not shown that he was prejudiced in any way. Accordingly, because he pled true to the enhancement and stipulation of evidence and because his prior conviction is not void due to the wrongly-transposed digits in the cause number, we hold that he has waived any error for our review.

          We overrule point of error two.

ConclusionWe affirm the trial court’s judgment.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Jennings, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).