Ramirez v. State, 02-14-00062-CR

• Decision Date: 21 May 2015
• Docket Number: NO. 02-14-00062-CR,02-14-00062-CR
• Parties: ROBERT RAMIREZ APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

ROBERT RAMIREZ APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-14-00062-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

May 21, 2015

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

TRIAL COURT NO. 1346024R

MEMORANDUM OPINION¹

I. INTRODUCTION

Appellant Robert Ramirez appeals from his conviction for aggravated assault with a deadly weapon. In two issues, Appellant argues that the evidence is insufficient to support a finding that he had inflicted or had caused the seriousbodily injury alleged in the indictment and that he had received ineffective assistance of counsel. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 2012, Jose Portillo was working on the roof of his restaurant at 4221 Hemphill Street when he noticed someone lying on the ground. Portillo got down from the roof and found Ricky Soto "in pretty bad shape."² Portillo said that Soto was so swollen and bloody that he did not initially recognize Soto until people around him said, "[H]ey, that's Ricky." Soto was conscious and was moaning loudly that his ribs hurt. Portillo called 911 at 3:55 p.m., and Medstar arrived shortly thereafter and transported Soto to the hospital.

The police responded to the scene around 4:22 p.m. and found no evidence of a fight. The police learned from homeless people in the area³ that Medstar had come and had already left the scene, but the police formed the impression that no one had been taken to the hospital. Later that night, however, the police were notified that a victim from the Hemphill area had been transported by Medstar to John Peter Smith Hospital earlier in the day, that he had died, and that his body had been taken to the medical examiner's office.

Detective Thomas Boetcher inspected Soto's body at the medical examiner's office. Detective Boetcher testified that Soto had a large "bleeding area" under his skin that was black and blue; some superficial cutting on his face, on his left cheek, around his left ear area, and on his chest cavity; a bloody nose; and a cut lip. Detective Boetcher testified that based on his training and experience as a police officer of thirty-two years, Soto's injuries were consistent with someone who had been punched or kicked multiple times. Detective Boetcher testified that this constituted serious bodily injury.

After observing the body, Detective Boetcher went to the location where Soto was found and talked with some of the homeless people who were behind the restaurant. They said that Zacarius Guzman (also known as Jalisco) might have seen the assault. Detective Boetcher met with Jalisco, and he pointed out Appellant as the person he had seen assault Soto.⁴

Detective Boetcher spoke with Appellant on March 2, 2012, and observed that he had a cut on his lip. Detective Boetcher asked Appellant if he would come talk to him at the police department about a fight that he was allegedly involved in the previous day, and Appellant agreed to speak with him. During his interview, Appellant initially denied involvement in an assault on Soto, saying that he had fought a black man. Appellant later admitted that he had been involved in two fights with Soto on March 1, 2012, and that his purpose in going back for thesecond fight was to get revenge for the first fight in which Soto had punched him in the face six times. Appellant said that he had hit Soto six times, including once in the side of the head, and had kicked him twice in the side. A video of Appellant's interview was played for the jury, and his written statement was read into the record. In his written statement, Appellant stated,

I, Robert Ramirez, acknowledge that I am not in custody and I am free to leave at any time. I have voluntarily chosen to make the following statement:

MY FULL NAME IS ROBERT RAMIREZ. I AM 44 YEARS OF AGE. MY DATE OF BIRTH IS 07/21/1968. I LIVE AT 4001 S ADAMS STREET, FORT WORTH, TX 76115. I HAVE COMPLETED 10 YEARS OF SCHOOL. I CAN READ, WRITE, AND UNDERSTAND THE ENGLISH LANGUAGE.

I mostly live on the street but sometimes I go to my wife's house at 4001 S Adams. Yesterday I was behind the store on Hemphill where the police found me today. It's hard for me to remember but there were a couple people there with me, Hector Rene and Bobby was there and I don't know his last name. There was a girl there named Susana and I can't remember who else. I was drinking at the time and Ricky walked up. I don't know Ricky's last name but is homeless and I've know[n] him for about 3 years. I was squatting down against the building when Ricky walked up and punched me in the face. He hit me about 6 times with his fists. I stood up and we started fighting. I punched him one time with my fist and kicked him with my foot twice in the side. I told him I was going to walk it off. Ricky stood there as I walked away. But I told him I'm going to walk it off and I'm not going to forget what you did to me and I'm going to come back for you.

I walked around the block and then I walked back to the store. I found him behind the store lying down. I asked him if he was ready for me, it was about two hours later. He stood up and then we started fighting again. I hit him first with my fist and then he punched me in the mouth. Eventually we both ended up on the ground wrestling. We fought for about 2-3 minutes. I know I kicked him both times on the same side of his body. I asked him what this was

all about anyway, and he didn't say anything. I went and bought him a beer and he took it.

We got into the fight the first time about 1:30 or 2:00 and about 3:30 [or] 4:00 we got into the second fight. He was my best friend. I wasn't trying to kill him.

After talking to Appellant, Detective Boetcher—noting that Soto had told Medstar that he had been attacked by three people—did not believe the statement in the investigator's report was accurate. Moreover, Detective Boetcher testified that his investigation did not lead him to believe that the second fight was mutual because of the time span between the first fight and the second fight; the degree of force used in stomping Soto and hitting him; and the bruises to Soto's armpit, to the side of his body, and to his face.

Jesse Vasquez, a friend of both Appellant and Soto, testified that he had spent "[p]retty much all day" with Appellant on March 1, 2012. Vasquez said that they drank beer together for a couple of hours in the alley behind Rocky's store before they ran into Soto. Vasquez said that Jalisco and Soto came up to them and that Soto "got in [Appellant's] face and looked at him straight in his face like this, and didn't say nothing. And all of a sudden[,] he just started punching him in his face." Appellant did not do anything; he did not have a chance.⁵ Vasquez told Soto that if he hit Appellant again, Vasquez was going to hit Soto, and Sotoand Jalisco took off down the alley toward an establishment referred to as Ernesto's.

Vasquez and Appellant went to a store on Henderson and Bolt, and Vasquez bought Appellant a twenty-four-ounce beer to "cool off." After drinking for a couple of hours, Appellant told Vasquez that he was hungry, so they went toward the alley and ran into Soto and Jalisco, who were sitting down. Soto saw Appellant coming and got up from his seated position, and the two "went at each other" and wrestled. Vasquez testified that he ultimately told Appellant that was enough and that Appellant listened to him. Vasquez said that Soto was shaking his head when they left.

Michelle Cantu, who knew Appellant from the streets and through her ex-boyfriend Jose Martinez, testified that she was with her ex-boyfriend on March 2, 2012, when they ran into Appellant. Cantu recalled that Appellant had told them that he had just killed his best friend and that he was about to go on a rampage.

Dr. Susan Roe, a deputy medical examiner at the Tarrant County Medical Examiner's Office, testified that Dr. Lloyd White had conducted the autopsy on Soto on March 2, 2012,⁶ and that she had conducted a peer review of Soto's autopsy. Dr. Roe opined that the cause of Soto's death was hemorrhagic shock due to a lacerated right kidney, due to blunt trauma of the abdomen, due toassault.⁷ Dr. Roe testified that Soto's lacerated kidney was the result of an assault, was consistent with being kicked or being hit, and constituted serious bodily injury.

After hearing the above evidence, the jury found Appellant guilty of aggravated assault with a deadly weapon causing serious bodily injury as alleged in the indictment and proceeded to the punishment phase. After hearing evidence during the punishment phase and finding the habitual paragraphs in the indictment to be true, the jury assessed Appellant's punishment at twenty-five years' confinement, and the trial court sentenced him accordingly.

III. SUFFICIENCY OF THE EVIDENCE

In his first issue, Appellant challenges the sufficiency of the evidence to support a finding that he had inflicted or had caused serious bodily injury to Soto.

A. Standard of Review

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives full play to the responsibility of thetrier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of...