Jose Ramirez v. State ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSE RAMIREZ,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

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No. 08-02-00411-CR Appeal from the 363rd District Court of Dallas County, Texas (TC# F-0157307-PW)

MEMORANDUM OPINION

Jose Ramirez appeals from convictions on two counts of theft, both state jail felonies.  We affirm.

Factual Summary

On or about September 28, 2001 in Dallas County, Texas, appellant Jose Ramirez was arrested and charged with theft of a motor vehicle, of the value of at least $1,500 but less than $20,000.  He was tried to a jury, which found him guilty, and assessed the maximum sentence of two years= confinement and a fine of $2,500.

Ramirez raises four issues:  improper jury instruction, improper argument, factual sufficiency, and improper standard of review for factual sufficiency.

The evidence established that early on the morning of September 28, 2001, Ramirez and two other men backed a tow truck up to a Pontiac Grand Am owned by Ronelle Bond, a.k.a. Ronelle Pitman.  Pitman testified she saw two Hispanic men hooking up chains to the car, and an African American man standing at the window of the Grand Am.  Cortez Bond, Pitman=s husband, identified Ramirez as one of the Hispanic men who were hooking up chains to the car.  Bond testified that when he confronted the men, the tow truck took off with the Grand Am behind it.  It dragged the car about fifty feet, stopped, and the men took off.  Bond said while he was unhooking the car Ramirez and one of the other men drove by in another car.  Ronelle Bond identified defendant as one of the men who was trying to tow the car.  Neither witness was able to identify or describe in detail the facial features of Ramirez=s two alleged accomplices, other than to say they were a black man of medium build and a slender build Hispanic with a long face and no facial hair.

During sentencing, the trial court instructed the jury that the court would have the power to probate any sentence imposed by the jury.  The prosecutor repeated that portion of the instruction during closing argument.  The pertinent portion of the charge given to the jury is as follows:

You are further instructed that the Court may suspend the imposition of the sentence of confinement and place the defendant on community supervision for a period of not less than 2 years nor more than 5 years.

Ramirez properly raised objection during trial.

Issues One and Two:  The trial court improperly allowed mention of court=s power to probate sentence in both jury charge and in closing argument.

The purpose of jury argument is to help the jury analyze evidence in order to reach a just and reasonable verdict.  Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). Jury argument must fall within four general parameters:  (1) summation of evidence properly before the jury; (2) reasonable deduction from that evidence; (3) an answer to argument of opposing counsel; or (4) plea for law enforcement.  Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984); Laca v. State, 893 S.W.2d 171, 184-85 (Tex. App.--El Paso 1995, pet. ref=d).

Ramirez asserts it was error for the trial court to include in its jury charge, and allow the prosecution to argue, that the judge had the authority to probate any jail sentence imposed by the jury.  Ramirez asserted at trial that the judge did not have the power to probate his sentence.  He did not articulate precisely why the judge could not probate the sentence, but the exchange at the sentencing portion of the trial provides a hint of his reasoning:

THE COURT:  Any objection from the Defense?

MR. BOYLE:  Judge, I guess I have to object to this thing, because these ‑‑ you are further instructed that only the Court may suspend the imposition.

It may give a false impression to the jury that maybe if we give him two years the judge will give him five years probation, when in reality ‑‑

THE COURT:  But that=s the law.

MR. BOYLE:  He can=t get any probation either from you.

THE COURT:  He can.

MR. BOYLE:  Not in this type of case.

THE COURT:  I=m the only one that can give him probation.  It=s just the jury can=t do it.

MR. BOYLE:  But if he elects to go to you ‑‑

THE COURT:  But if the jury gives him time, I can still suspend it and put him on probation, but I=m the only one who can do it.  The jury can=t do it, and that=s what I=m instructing them.  Only I can do it, not the jury.

I=m the only one who can suspend the imposition of the sentence and place him on a community supervision.

MR. BOYLE:  I think it=s only if he elects to go to you, so I just have to object to that.

THE COURT:  Oh, no, he doesn=t have to go to me for me to still put him on probation.  It=s just that I can choose not to put him on probation.  But even if the jury give him time, I can still, if I want to, put him on probation.  And I=m just instructing them on the law.

MR. BOYLE:  I just have to object to that, Judge.  It makes it‑‑well, let=s give him two years, because the judge can control him for five years, when the reality is I don=t think he can get probation.

THE COURT:  It further instructs that the Court may.  It=s not saying that the Court will; it=s saying that the Court may, and that=s totally discretionary to me.

MR. BOYLE:  Okay.

THE COURT:  So the Court will note that.

Counsel for Ramirez does not allege that this statement by the court is erroneous. Nor does he precisely state why Athis type of case@ is ineligible for suspension of sentence by a judge, as is typically the case in most state jail felonies, as provided for in the general provisions of article 42.12, section 15.  He does cite the general penumbra of sections 3(e)(2) and 4(d)(2) of article 42.12. Those sections provide that:

A defendant is not eligible for community supervision under this section if the defendant: (1) is sentenced to a term of imprisonment that exceeds 10 years; or (2) is sentenced to serve a term of confinement under Section 12.35, Penal Code.  Tex. Code Crim. Proc. Ann. art. 42.12, ' 3(e)(1)(2); ' 4(d)(1)(2) (Vernon Supp. 2003).

Section 12.35(c)(2)(A) of the Texas Penal Code concerns State Jail Felonies and allows for community supervision in many cases.  The face of these two sections would seem to imply exactly what Ramirez assertsBthat he was not eligible for community supervision because he was being sentenced under section 12.35.  However, the admonition in article 42.12 that says supervision is not allowed is nothing more than a general statement, which is more precisely defined in section 15 of article 42.12:

On conviction of a state jail felony punished under Section 12.35(a), Penal Code, the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed.  Tex. Code Crim. Proc. Ann. art. 42.12, ' 15(a) (Vernon Supp. 2003).

The State correctly argues that if Ramirez= argument were generally true, then no one punished under a state jail felony could ever receive a probated sentence.  That could not have been the intention of the Legislators, under statutory interpretation which looks to the literal text to give effect to the plain meaning of the language.  The Texas Legislature made broad provisions within section 12.35 to provide trial courts with latitude in sentences for non-violent state jail felonies.  See Tex. Penal Code Ann. ' 12.35 (Vernon 2003).

The record reflects Ramirez was indicted on two counts of theft over $1,500 but less than $20,000, a state jail felony.   See Tex. Penal Code Ann. ' 12.35 (Vernon 2003). Thus, he is eligible for a sentence under Texas Code of Criminal Procedure article 42.12, section 15(a). While community supervision is not automatic, the trial court has the discretion to determine whether to impose or suspend a defendant=s sentence.

Ramirez asserts that once the jury found him guilty, he was not eligible for community supervision, regardless of whether the jury or judge imposed sentence. It is true that there are certain circumstances in which a state jail felony is punishable as a third-degree felony, but there is nothing in the record to suggest Ramirez= crime was punished as a third-degree felony.

All evidence in the record indicates Ramirez was eligible for community supervision. The court=s charge and the State=s comments were a proper articulation of the law, and fit well within the parameters approved for argument. Therefore there was no error.  The first two issues presented are overruled.

Third and Fourth Issues Presented:  Factual Sufficiency, and Request for Abrogation of Factual Sufficiency Standard of Review.

Next, Ramirez alleges the facts do not support his conviction for theft, and the standard of review for factual sufficiency is too demanding.  The standard of review for factual sufficiency is that all evidence must be considered, but not in the light most favorable to the verdict.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex. App.--El Paso 1997, no pet.).  This Court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove the same fact.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence.  See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial.  See Johnson, 23 S.W.3d at 7.  We are not free to re-weigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135.

In this case, the evidence against Ramirez included the testimony of two witnesses who identified Ramirez as one of the men who tried to tow the car. Ramirez asserts that because the witnesses were both unable to identify the other suspects, because there was no fingerprint evidence, and because there are alternate explanations for some of the evidence against him, the evidence is factually insufficient. Appellant contends this is a more demanding standard than a legal sufficiency challenge.

Ramirez says no defendant will be able to show the verdict is manifestly unjust where there is some evidence to support the jury=s verdict, and where the court defers to the jury=s weight and credibility determinations.  He argues that since the defendant must prove there was no evidence to support the jury=s verdict, this is more demanding than having to show the evidence is legally insufficient under the Jackson standard.  He urges that the Ablinders@ of the factual sufficiency standard be removed, and this Court considers the evidence under a legal sufficiency standard.  Appellant admits under the existing standard for factual sufficiency, the evidence justifies the jury=s holding.

The Texas Court of Criminal Appeals considered an argument against the standard of review for factual sufficiency in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).  It concluded that:

After extensive investigation into hundreds of opinions that have conducted factual sufficiency reviews, there exist no indications the standard has become Aunworkable,@ especially to the degree this Court would feel justified in overruling existing precedent. Id. at 8.

It is true that the witnesses against Ramirez provided little or no physical description of the alleged suspects before pointing to Ramirez as the perpetrator when he  was in the car that drove past the scene about fifteen minutes after the incident. It is also true the witnesses were unable to provide detailed descriptions of the other two alleged accomplices.  In addition, it is undisputed that there was no fingerprint evidence against Ramirez despite the fact the complaining witnesses said the suspects had their hands all over the car, and they did not recall whether they wore gloves. However, it is also undisputed that both witnesses unequivocally identified Ramirez as one of the men who tried to steal their car by hooking it up to the stolen tow truck.  Therefore, it cannot be said that the judgment of the jury was so against the great weight of the evidence that it is manifestly unjust. Appellant also fails to provide an argument that justifies the treatment of this appellant differently from any other in Texas.

This Court has no authority to overrule Texas Court of Criminal Appeals precedent.  The third and fourth issues presented are overruled.

Conclusion

Having overruled each of the issues presented by Ramirez, this Court affirms the ruling of the trial court.

SUSAN LARSEN, Justice

October 30, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)