State v. Ramos

• Decision Date: 30 October 2015
• Docket Number: No. 08–13–00279–CR,08–13–00279–CR
• Parties: The State of Texas, Appellant, v. Luis Ramos, Appellee.
• Court: Texas Court of Appeals

479 S.W.3d 500

The State of Texas, Appellant,

v.Luis Ramos, Appellee.

No. 08–13–00279–CR

Court of Appeals of Texas, El Paso.

October 30, 2015

Jaime E. Esparza, District Attorney, El Paso, for Appellant

Jim Darnell, Jim Darnell, P.C., El Paso, for Appellee

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION ON MOTION FOR REHEARING

YVONNE T. RODRIGUEZ, Justice

Luis Ramos has moved for rehearing of this Court's previous decision dated July 15, 2015. His motion for rehearing is granted. We withdraw the opinion and judgment issued July 15, 2015, and substitute the following opinion and judgment.

The State of Texas seeks reversal of an order granting a new trial to Luis Ramos, who was acquitted of murder but convicted of aggravated assault by threat arising out of a stabbing incident. Ramos' only defense at trial was self-defense. In one issue, the State contends that rendition of these apparently inconsistent verdicts is not proof that the jury believed Ramos' self-defense claim, and that contrary to Ramos' assertions, verdict inconsistency alone does not justify acquittal or a new trial grant on the aggravated assault charge when the evidence underpinning that charge was legally sufficient. We agree.

However, on rehearing, Ramos correctly noted that the trial court improperly granted the State's request for a "lesser-included offense" instruction on aggravated assault by threat when, in fact, aggravated assault by threat is not a lesser-included offense of murder. See Hall v. State, 225 S.W.3d 524, 536–37 (Tex.Crim.App.2007) (noting that the threat element renders this type of aggravated assault a separate offense from those in the murder spectrum under the cognate-pleadings jeopardy rule). The State conceded that the trial court violated Ramos' due process rights by allowing him to be convicted of an unindicted lesser-but-not-included offense. See Beasley v. State, 426 S.W.3d 140, 149 (Tex.App.—Houston [1st Dist.] 2012, no pet.). Because jury charge error could have justified the lower court's decision, we affirm the trial court's new trial order with respect to the aggravated assault charge and reform the judgment to reflect an acquittal on the murder count.

BACKGROUND

Factual History

On November 20, 2009, Ramos, his wife Jessica, their children, and Ramos' friend Manny Rodriguez attended a party hosted by Jessica's friend Fernanda Anguiano at her home on 5012 Sagittarius Avenue in Northeast El Paso. Anguiano's then-boyfriend Samuel Reynosa was also present at the house with his cousin Angel Garcia and his brothers Jose "Tudie" Reynosa and Adrian Reynosa.

Samuel Reynosa testified that about fifteen people showed up to the party. He admitted to smoking marijuana and drinking alcohol with others at the get-together. About an hour after the Ramos' arrival, Samuel and Anguiano began asking people to leave because Fernanda had been drinking and felt bad. Samuel then left to pick up items at a nearby 7–11. He testified that as he entered the house while Ramos was leaving, he told Ramos to watch out. Ramos accused Samuel of trying to "punk him." Ramos' friend Manuel Rodriguez testified that Samuel had pushed Ramos as he passed and swore at him, and that Ramos sarcastically replied "excuse me." Rodriguez further testified that exchange prompted expletive responses from Samuel and Adrian, with Adrian throwing a punch at Rodriguez. Adrian Reynosa testified that Manny Rodriguez threw the first punch after the argument started, striking him in the jaw. This exchange between Adrian Reynosa and Manny Rodriguez set off a fistfight with the Reynosa brothers and Garcia on one side and Ramos and Rodriguez on the other. Garcia and Adrian Reynosa fought Manny Rodriguez, and Samuel and Jose Reynosa fought Ramos. During this fight, no one used any weapons.

The fight briefly died down, but within a short period of time, a second fight broke out in the street outside the yard. The evidence is disputed as to who started the second fight. Samuel Reynosa testified that Ramos started the fight by punching him above the left eye as Samuel tried to shepherd everyone back toward the house. Ramos' wife Jessica testified that one of the Reynosas started the second fight by hitting Rodriguez.

The evidence is also disputed as to whether Ramos was the only person carrying a knife or a weapon. Jessica Ramos maintained at trial that she saw Samuel Reynosa swinging a knife at her husband during the fight. Samuel Reynosa testified that he did not grab a steak knife until after the fight had finished, and that all he did with it was throw it at Ramos' truck as he fled after the fight. Manuel Rodriguez testified that Angel Garcia also had a kitchen knife as he moved toward Ramos. Adrian Reynosa admitted that he was carrying a blue Azteca vodka bottle when he came back from the store and the first fight started, but denied using it as a weapon. He also testified he only threw another bottle with a yellow cap at Ramos' truck. Rodriguez stated that Adrian Reynosa used a bottle to hit Ramos during the second fight. Samuel Reynosa initially testified that it was Rodriguez who broke a bottle and used it as a weapon, but admitted on cross-examination that he had not seen either Ramos or Rodriguez use a bottle as a weapon.

Adrian Reynosa testified that as the second fight got underway, three men pushed Ramos away from his truck and his family and into the intersection. Adrian attacked Ramos when he saw Ramos moving behind the truck toward Garcia. Ramos struck Adrian, who fell. Eventually, Ramos and Garcia were the only two combatants left fighting in the street.

Samuel Reynosa testified that as Ramos and Garcia fought, Ramos swung an object in his hand twice at Garcia. Garcia then ran toward Samuel, bleeding from his neck and saying that he had been stabbed. Adrian and Jose Reynosa confirmed that they saw Garcia had been stabbed after fighting one-on-one with Ramos. Jessica Ramos testified that as soon as the fight ended, her husband ran in the house to get their child, buckled her into her seat in the truck, and they all returned back to their apartment. Police later found the knife used in the stabbing at Ramos' apartment.

Garcia died of a transectional cut across the trachea. El Paso County Chief Medical Examiner Dr. Juan Contin testified that a toxicology screening

showed a .145 blood-alcohol concentration and marijuana metabolites in Garcia's blood, with another screening done at William Beaumont Army Medical Center showing a blood-alcohol concentration of .21.

Procedural History

The State indicted Ramos on one count of murder. Ramos requested and received jury instructions on the law of self-defense, defense of third parties, and duty to retreat. Before the trial court submitted the case to the jury, the State also received, over objection, a lesser-included offense instruction on aggravated assault by threat.

The jury returned verdicts of not guilty on the murder count, but guilty on the aggravated assault count, assessing punishment at 15 years' in prison. Ramos moved for a new trial and to arrest the verdict. See TEX. R. APP. P.22.1. The trial court initially denied Ramos' request for a new trial. However, it later reconsidered its ruling sua sponte, granting Ramos' new trial request and entering a judgment of acquittal.¹ The State appealed.

DISCUSSION

On original hearing, the State maintained that the trial court abused its discretion in granting a new trial when it had no legal justification for doing so. Ramos countered that the trial court could have granted a new trial or an acquittal on legal sufficiency grounds when the jury returned inconsistent verdicts that showed it believed his self-defense argument, but erroneously convicted him of aggravated assault anyway. Ramos also asserted that we could uphold the trial court's new trial grant on the basis that the lower court erred in submitting a State-requested aggravated assault by threat instruction.

On rehearing, Ramos clarified that jury charge error stemmed from the fact that aggravated assault by threat was not, in fact, a lesser-included offense. The State concedes that the particular aggravated assault instruction at issue here was erroneous. As explained below, we conclude that giving this instruction constituted reversible error, and that the new trial order could be justified as a curative measure aimed at correcting this mistake. However, Ramos is still entitled to legal sufficiency review, since a finding of legal insufficiency would interpose a jeopardy bar against retrial. Benavidez v. State, 323 S.W.3d 179, 182 (Tex.Crim.App.2010). We find that Ramos was not entitled to an acquittal on the aggravated assault charge because the evidence was legally sufficient to support it. Instead, a new trial on that charge is the appropriate remedy here.

Standard of Review

We review the trial court's new trial ruling for abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex.Crim.App.2007). A trial judge "cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or received a raw deal." Id. at 907 [Internal quotation marks omitted]. Instead, even where a defendant urges a new trial on interest of justice grounds, "[a] motion for a new trial, whether for guilt or punishment, requires a valid legal claim." State v. Thomas, 428 S.W.3d 99, 107 (Tex.Crim.App.2014). "To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion." Herndon, 215 S.W.3d at 907.

The trial court must grant the defendant a new trial for any of the reasons articulated in TEX. R. APP. P.21.3, including "when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights[,]" TEX. R. APP. P.21.3(b), or "when the verdict is contrary to the law and the evidence." TEX. R. APP. P.21.3(h). "The trial court retains the discretionary power to grant a new trial for any...