Roman Ramirez-Memije v. State , 2015 Tex. App. LEXIS 5057 ( 2015 )


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  • Reversed and Remanded and Opinion filed May 19, 2015.
    In The
    Fourteenth Court of Appeals
    NO. 14-11-00456-CR
    ROMAN RAMIREZ-MEMIJE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 174th District Court
    Harris County, Texas
    Trial Court Cause No. 1256139
    OPINION             ON       REMAND
    A jury convicted appellant Roman Ramirez-Memije of fraudulent possession
    of ten or more but less than fifty items of identifying information, a second-degree
    felony. See Tex. Penal Code Ann. § 32.51(b), (c)(3). We hold that appellant
    suffered egregious harm from the inclusion of an unconstitutional mandatory
    presumption in the jury charge. Accordingly, we reverse the trial court’s judgment
    and remand for a new trial.
    I.     BACKGROUND
    The State presented evidence that appellant was a middleman in a credit card
    skimming operation.        Appellant obtained a credit card skimmer1 from Dante
    Salazar and delivered it to Antonio Cercen, who was a waiter at a restaurant. After
    Cercen used the skimmer to collect credit card numbers from the restaurant’s
    patrons, appellant would retrieve the skimmer from Cercen and deliver it to
    Salazar. Appellant testified and admitted to possessing the skimmer, but he denied
    knowing that the skimmer contained identifying information.                    The primary
    contested issue at trial was whether appellant knew the skimming device contained
    identifying information.
    In three issues on original submission, appellant argued that the trial court
    erred by (1) refusing to include in the jury charge appellant’s requested instruction
    on voluntary conduct under Section 6.01 of the Texas Penal Code because there
    was evidence that appellant did not knowingly obtain or receive the identifying
    information; (2) including an unconstitutional mandatory presumption in the jury
    charge while failing to include the instructions about presumptions found in
    Section 2.05 of the Penal Code; and (3) admitting testimony that appellant was
    from Mexico and working illegally in the United States. Ramirez-Memije v. State,
    
    397 S.W.3d 293
    , 295–96 (Tex. App.—Houston [14th Dist.] 2013), rev’d, 
    444 S.W.3d 624
    (Tex. Crim. App. 2014). This court sustained appellant’s first issue
    and reversed for a new trial. 
    Id. at 304.
    The Court of Criminal Appeals reversed, holding that appellant’s possession
    of identifying information was a voluntary act under Section 6.01(b) because
    appellant knowingly possessed the skimming 
    device, 444 S.W.3d at 628
    , although
    1
    According to witness testimony, a credit card skimmer stores information obtained from
    the magnetic strip on a credit card.
    2
    there was evidence that appellant did not know what the skimming device was and
    did not know what information it contained, 
    id. at 625.
    The court remanded the
    case to this court for consideration of appellant’s remaining issues. 
    Id. at 628.2
    We now address appellant’s issue concerning the inclusion of an
    unconstitutional mandatory presumption in the jury charge.
    II.     JURY CHARGE ERROR
    The application paragraph of the jury charge tracked the statutory language
    as follows:
    Now, if you find from the evidence beyond a reasonable doubt that on
    or about the 22nd day of March, 2010, in Harris County, Texas, the
    defendant, Roman Ramirez-Memije, did then and there unlawfully,
    with the intent to harm or defraud another, possess at least ten but less
    than fifty items of identifying information, to wit: an electronic
    identification number of [list of twelve names], a living adult person,
    without said person’s consent, then you will find the defendant guilty
    of fraudulent possession of identifying information, as charged in the
    indictment.
    See Tex. Penal Code Ann. § 32.51(b). The charge further instructed the jury on a
    statutory presumption: “You are instructed that the defendant is presumed to have
    the intent to harm or defraud another if the defendant possesses the identifying
    information of three or more other persons.” See 
    id. § 32.51(b-1)(1).
    This is an
    unconstitutional mandatory presumption that effectively eliminated the State’s
    burden of proof on the presumed fact of appellant’s mens rea—his “intent to harm
    2
    Judge Price suggested this court would “almost certainly reverse the conviction again”
    because the jury charge included an unconstitutional mandatory presumption without instructions
    appearing in Section 2.05 of the Penal 
    Code. 444 S.W.3d at 632
    n.20 (Price, J., dissenting).
    3
    or defraud.” See Garrett v. State, 
    220 S.W.3d 926
    , 930–31 (Tex. Crim. App.
    2007); Bellamy v. State, 
    742 S.W.2d 677
    , 682 (Tex. Crim. App. 1987).3
    The charge did not include the instructions from Section 2.05(a)(2) of the
    Penal Code, which explain to the jury “how to implement such a presumption.”
    Hollander v. State, 
    414 S.W.3d 746
    , 749 n.9 (Tex. Crim. App. 2013). The State
    agreed on original submission that the trial court should have instructed the jury in
    accordance with Section 2.05(a)(2), which requires instructions as follows:
    (A) that the facts giving rise to the presumption must be proven
    beyond a reasonable doubt;
    (B) that if such facts are proven beyond a reasonable doubt the jury
    may find that the element of the offense sought to be presumed
    exists, but it is not bound to so find;
    (C) that even though the jury may find the existence of such
    element, the state must prove beyond a reasonable doubt each
    of the other elements of the offense charged; and
    (D) if the jury has a reasonable doubt as to the existence of a fact or
    facts giving rise to the presumption, the presumption fails and
    the jury shall not consider the presumption for any purpose.
    Tex. Penal Code Ann. § 2.05(a)(2). When these instructions are included in the
    jury charge, an otherwise mandatory and unconstitutional presumption will be
    treated as a permissive presumption that is constitutionally acceptable.                  See
    
    Garrett, 220 S.W.3d at 930
    –31; 
    Bellamy, 742 S.W.2d at 682
    .
    Because appellant failed to object to the jury charge on this basis or request
    the Section 2.05(a)(2) instructions, we will reverse only if he suffered egregious
    harm. See 
    Hollander, 414 S.W.3d at 749
    –50 (reversing for egregious harm);
    3
    See also Hollander v. State, 
    414 S.W.3d 746
    , 754–55 (Tex. Crim. App. 2013) (Cochran,
    J., concurring) (noting that a mandatory presumption is created by language such as “The law
    presumes X if Y is proven,” and the charge in this case was a mandatory presumption because it
    stated, “It is presumed that . . . .”).
    4
    
    Bellamy, 742 S.W.2d at 687
    (same); see also 
    Garrett, 220 S.W.3d at 932
    (standard
    for harm relating to unobjected-to constitutionally erroneous presumption in jury
    charge was the same as egregious harm). Jury charge error is egregiously harmful
    if the error affects the very basis of the case, deprives the defendant of a valuable
    right, vitally affects the defensive theory, or makes a case for conviction clearly
    and significantly more persuasive. Taylor v. State, 
    332 S.W.3d 483
    , 490 (Tex.
    Crim. App. 2011). The harm must be actual, not just theoretical. See 
    id. (citing Almanza
    v. State, 
    686 S.W.2d 157
    , 174 (Tex. Crim. App. 1984)). To make this
    determination, we will review the entire record, including (1) the complete jury
    charge, (2) the arguments of counsel, (3) the entirety of the evidence, including the
    contested issues and weight of the probative evidence, and (4) any other relevant
    factors revealed by the record as a whole. E.g., 
    Hollander, 414 S.W.3d at 749
    –50.
    In undertaking this review, we are mindful of Judge Cochran’s observation
    in Hollander: “There is a grave likelihood that a jury charge that does not contain
    the [Section] 2.05(a)(2) instructions will cause egregious harm to a defendant
    because of the serious constitutional pitfalls involved in using evidentiary
    presumptions.” 
    Id. at 756
    (Cochran, J., concurring). “Generally speaking, jury
    instruction error involving presumptions that appear to be mandatory will cause the
    defendant ‘egregious harm’ because they violate the constitutional requirement that
    the State prove every element of an offense beyond a reasonable doubt.” 
    Id. Omitting Section
    2.05(a)(2) instructions causes two significant problems: (1) the
    jury is never told it must find the predicate fact proven beyond a reasonable doubt
    before indulging the presumption; and (2) the jury is never told it is not bound to
    find the presumed fact based on proof of the predicate fact. See Tex. Penal Code
    Ann. § 2.05(b)(A)–(B); 
    Hollander, 414 S.W.3d at 754
    . The second consequence is
    our primary concern in this case.
    5
    We review the record below, ultimately holding that appellant suffered
    egregious harm because (1) the remainder of the jury charge did not ameliorate the
    error; (2) the State’s arguments exacerbated the error; and (3) the presumed fact,
    i.e., an intent to harm or defraud, was the primary contested issue at trial, and the
    evidence was not overwhelming.
    A.     Entire Jury Charge
    The jury charge appropriately instructed the jury about the State’s general
    burden to prove all of the elements of the offense beyond a reasonable doubt, but
    this general instruction alone does not remedy the error in the charge. See, e.g.,
    
    Hollander, 414 S.W.3d at 750
    (majority op.). “Such a general instruction fails to
    educate the jurors with respect to the level of confidence they must have in the
    verity of the predicate facts before they may rely on the presumption to convict.”
    
    Id. And of
    course, nothing in the jury charge informed the jury that it was not
    bound to use the presumption.
    This factor weighs in favor of finding egregious harm. See id.; Webber v.
    State, 
    29 S.W.3d 226
    , 236 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
    B.     Arguments of Counsel
    Although the State made several comments that could be viewed as
    suggesting the presumption was permissive, on balance the State’s arguments
    emphasized the error throughout voir dire and closing arguments.4 The State
    4
    During both voir dire and closing arguments, the State told the jury “you can presume.”
    (emphasis added). But as discussed below, the State made conflicting statements and the
    majority of the statements suggested the presumption was mandatory. In its supplemental brief,
    the State observes that its arguments at trial were conflicting: “Admittedly, the prosecutor also
    provided some conflicting statements about knowledge and the application of the presumption
    during voir dire and argument.” In any event, use of the word “can” would not necessarily make
    the presumption permissive. See Alexander v. State, 
    757 S.W.2d 95
    , 99 (Tex. App.—Dallas
    6
    discussed the presumption during voir dire and told the jury that it would use the
    presumption to prove appellant’s intent:
    But the law in the Texas states that I can prove it circumstantially.
    How do I do that? Well, there is a presumption we’ll talk about later
    in the statute that says somebody possessing the identifying
    information of three or more people, not three or more pieces, but
    three or more people, there is a presumption that you are statutorily
    presumed that they have intent to harm or defraud another.
    When discussing the lack-of-consent element of the statute, one veniremember
    suggested the State would need to prove that appellant knew he lacked consent.
    The State said, “We’ll get to that in a second,” and then discussed the intent
    element of the statute and the applicability of the presumption:
    There is a statute in the Penal Code that says a person is presumed to
    have the intent to harm and defraud another if the actor had possession
    of identifying information of three or more persons. What that means,
    if I prove that the defendant on his person had identifying information
    of three or more persons, the jury is to presume he had the intent to
    harm or defraud another.
    When discussing appellant’s right to not testify, the State again reiterated that it
    could prove appellant’s intent by reference to the presumption:
    If I proved he possessed three or more identifying pieces of
    information of three or more people, if I proved he possessed, then
    you are to presume he had the intent to harm and defraud another. . . .
    It’s important in many cases to prove by circumstantial evidence but
    in this case the government has said if I prove he possessed three or
    more pieces of identifying information, then 12 of you can presume he
    did it.
    1988, pet. ref’d) (instruction that the jury “may presume” intent was unconstitutional mandatory
    presumption).
    7
    The State actively dissuaded at least one veniremember’s concerns about the
    presumption:
    VENIREPERSON: If you have a teenager who really isn’t planning
    on using them for fraud or anything else, by statute you are guilty?
    [PROSECUTOR]: You would. Well, the law states and presumes if
    you have more than three or more persons[’] identifying information,
    you possess it, you are presumed to have the intent. If somebody is
    having intent to steal somebody’s social security number—now,
    having said that, is that going to be a problem?
    VENIREPERSON: No.
    Then, the State went through the entire venire to ensure the veniremembers could
    follow the presumption:
    [PROSECUTOR]: Anybody first row going to have any sort of issue
    with the fact that if he has the—with the presumption if he has three
    or more persons’ information?
    ....
    So anybody second row going to have a problem with that
    presumption? Anyone third row? Fourth row or the back? Juror 65.
    VENIREPERSON: If you have your iPad, your iPad download all this
    information and by statute you have three or more but you don’t have
    intent—
    [PROSECUTOR]: Possessing doesn’t mean having it on you. You
    have to know you have it. Once they know they have it. Are you
    okay with that?
    VENIREPERSON: Yes.5
    During closing arguments, the State discussed the presumption several
    times: “And as the charge will tell you, if there is more than three people then you
    5
    Although the State initially seemed to argue that it would need to prove appellant knew
    he possessed identifying information, the State argued to the jury during closing that it did not
    need to prove appellant knew he possessed identifying information. See generally Ramirez-
    
    Memije, 397 S.W.3d at 303
    –04 (reviewing arguments concerning knowledge of possession).
    8
    can presume that he had the intent to defraud or harm.” At one point, the State
    suggested that the presumption was not meant to ensnare the innocent bystander:
    And it was written specifically because now if a person just had a
    device, without know[ing] what is on it, without the intent to defraud
    or harm another, is he guilty? Of course, he’s not. If somebody
    mysteriously installs a program on their I-pad [sic] that collects
    information somehow, well, of course you don’t have the intent to
    defraud or harm another.
    However, shortly before the State finished its argument, the State referred to its
    proof of appellant’s intent being “automatic” because of the presumption: “Nobody
    is disputing that there were 56 credit card numbers in the device. And nobody is
    disputing that there is a presumption if you have more than three, you
    automatically have the intent to defraud and harm.” Appellant objected because
    “[t]hat is not the law,” but the trial court overruled the objection.
    In sum, the State repeatedly emphasized the utility of the presumption and
    reinforced its binding nature: (1) “there is a presumption that you are statutorily
    presumed that they have intent to harm or defraud another”; (2) “a person is
    presumed to have the intent to harm and defraud”; (3) “the jury is to presume he
    had the intent to harm or defraud”; (4) “you are to presume he had the intent to
    harm and defraud”; (5) “the law states . . . you are presumed to have the intent”;
    and (6) “there is a presumption if you have more than three, you automatically
    have the intent to defraud and harm.” The parties never told the jury that it was not
    bound by the presumption.
    This factor weighs in favor of finding egregious harm. See 
    Hollander, 414 S.W.3d at 750
    –51 (finding egregious harm because the parties did not do or say
    anything during the trial to remedy the deficiency; although some of the State’s
    comments suggested the jury did not need to rely on the presumption to find the
    9
    defendant guilty, the State “repeatedly emphasiz[ed] the utility of the
    presumption”); 
    Bellamy, 742 S.W.2d at 681
    , 686 (finding egregious harm even
    though the prosecutor told the jury during closing arguments that the presumption
    was “not binding upon the jury”; reasoning, “While it is true that the prosecutor did
    not devote an inordinate portion of her final argument to the presumption, she did
    reread it and commend its use to the jury”); cf. Tottenham v. State, 
    285 S.W.3d 19
    ,
    31 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (no egregious harm in part
    because the State informed the jury “that the presumption could, in some
    circumstances, not apply, and therefore was permissive, rather than mandatory”).
    C.    Contested Issues and Weight of the Evidence
    As the Court of Criminal Appeals observed in this case, it was “undisputed
    that Appellant knowingly had the skimming device, which contained the
    identifying information, in his possession.” 
    Ramirez-Memije, 444 S.W.3d at 628
    .
    During his testimony, appellant essentially admitted to possessing identifying
    information of three or more persons. See 
    id. Thus, the
    evidence supporting the
    predicate fact was overwhelming. Any error regarding omission of the burden-of-
    proof instruction could not have harmed appellant. See, e.g., 
    Tottenham, 285 S.W.3d at 32
    (“Where the great weight of evidence supports the facts giving rise to
    the presumption, egregious harm is not shown.”); 
    Webber, 29 S.W.3d at 237
    (no
    egregious harm because evidence of the predicate fact was overwhelming); cf.
    
    Hollander, 414 S.W.3d at 751
    (finding egregious harm because the facts giving
    rise to the presumption were vigorously contested at trial).
    However, the Court of Criminal Appeals also acknowledged that appellant’s
    testimony about his lack of knowledge of his possession of identifying information
    “goes to the mens rea of intent to harm or defraud.” 
    Ramirez-Memije, 444 S.W.3d at 628
    . And as this court observed on original submission, appellant’s “sole
    10
    defense was that he did not know he had obtained or received identifying
    information by receiving the skimmer.” 
    Ramirez-Memije, 397 S.W.3d at 302
    . The
    evidence supporting the presumed fact was vigorously contested—it was the only
    element of the offense that appellant contested.
    Appellant testified that he had never received any benefits from participating
    in an illegal skimming scheme; he did not know what the device was; and it looked
    like a walkie-talkie or recorder. He did not look into it and see what was in it. He
    did not own any software that could look into the device. One special agent
    testified that the skimmer “probably looks like an old fashioned beeper.” Another
    special agent testified that a person could “scroll through and see what was on” the
    skimmer, but he never saw appellant look at the information on the skimmer, and
    the agent had no information that appellant knew what was on the skimmer.
    The State points to other evidence of appellant’s intent. A Secret Service
    agent testified that appellant admitted to receiving cash and electronics for
    delivering the skimmer to Salazar. But appellant testified that the agent, who
    spoke with appellant in Spanish, misunderstood the translation, and appellant was
    talking about purchasing a video game system from Salazar. The State points to a
    phone conversation appellant had with Salazar when appellant said that Cercen
    “completed all fifty.” But appellant testified that Secret Service agents told him to
    say this. The State points to Cercen’s testimony that appellant told Cercen how to
    use the skimmer and paid Cercen money to obtain credit card numbers. But
    appellant denied these accusations.
    11
    In short, appellant’s intent was the sole contested issue, and the evidence of
    the presumed fact was not overwhelming. This factor weighs in favor of finding
    egregious harm. See 
    Bellamy, 742 S.W.2d at 685
    –686 (finding egregious harm
    even though evidence of the predicate fact was “undisputed”; evidence of the
    presumed fact was not overwhelming and it was “the sole contested issue” at trial);
    cf. 
    Tottenham, 285 S.W.3d at 32
    (finding no egregious harm when there was ample
    circumstantial evidence supporting the presumed fact of intent to defraud or harm
    and the defendant “did not present any evidence refuting the issue of intent”).
    D.    Appellant Suffered Egregious Harm
    Under the facts of this case, the unconstitutional mandatory presumption
    precluded appellant from presenting any defense.           Appellant contested the
    presumed fact by denying knowledge of his possession of identifying information.
    See 
    Ramirez-Memije, 444 S.W.3d at 628
    . But even if the jury found appellant
    credible and fully believed that he did not know the skimmer contained identifying
    information, the jury was required to follow the presumption and “automatically”
    find that appellant had the requisite intent. The State’s voir dire confirmed that
    every juror would apply the presumption and find appellant guilty, even if
    appellant “really isn’t planning on using [identifying information] for fraud or
    anything else.”
    Thus, appellant was deprived of a valuable right to have the jury find an
    element of the offense—his mens rea—beyond a reasonable doubt. The error
    affected the very basis of the case, vitally affected his sole defensive theory, and
    made the case for conviction clearly and significantly more persuasive. Appellant
    suffered egregious harm.
    12
    III.    CONCLUSION
    Having sustained appellant’s second issue, we reverse the trial court’s
    judgment and remand for a new trial.6
    /s/    Sharon McCally
    Justice
    Panel consists of Justices Christopher, Jamison, and McCally.
    Publish — Tex. R. App. P. 47.2(b).
    6
    We decline to address appellant’s third issue. See Tex. R. App. P. 47.1.
    13
    

Document Info

Docket Number: NO. 14-11-00456-CR

Citation Numbers: 466 S.W.3d 894, 2015 Tex. App. LEXIS 5057, 2015 WL 2394672

Judges: Christopher, Jamison, McCally

Filed Date: 5/19/2015

Precedential Status: Precedential

Modified Date: 11/14/2024