Jose Alberto Ramirez v. State

NUMBER 13-10-00205-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSE ALBERTO RAMIREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 275th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Jose Alberto Ramirez challenges his conviction by a jury for capital

murder, for which he was sentenced to life in prison. See TEX. PENAL CODE ANN. §§

12.31(a), 19.03(a)(2) (West Supp. 2010). By five issues, Ramirez challenges the

sufficiency of the evidence supporting his conviction, the admission of a crime scene
video tape and certain photographs at trial, information on mandatory punishment given

to the panel during jury selection, and the trial court's comment on the case and/or

evidence during jury selection. We affirm as modified.

I. Background

Ramirez was indicted as follows for capital murder:

[O]n or about [April 15, 2008], . . . [Ramirez] did then and there intentionally
cause the death of an individual, namely, Gabriel Garcia, by striking Gabriel
Garcia with a metal canister, and the defendant was then and there in the
course of committing or attempting to commit the offense of robbery of
Gabriel Garcia.

See id. § 19.03(a)(2). Ramirez pleaded not guilty, and the case was tried to a jury.

The following facts from trial are undisputed. Ramirez and Garcia were sexually

involved. On the night Garcia was killed, he and Ramirez had engaged in oral sex in

Garcia's apartment. Garcia was several inches taller and approximately fifty pounds

heavier than Ramirez. Ramirez does not deny that he went to Garcia's apartment with a

metal CO2 canister from a paintball gun and that he struck Garcia on the head multiple

times with the metal canister, but claimed at trial that he did so in self-defense as Garcia

was attacking him and attempting to sexually assault him. Garcia died from blunt force

trauma wounds to the head. Ramirez does not dispute that he committed theft. He took

some items from Garcia's apartment—such as a portable video game and Garcia's watch

and wallet—but left others—such as other jewelry and larger electronic equipment.

Ramirez claimed at trial that he never intended to rob Garcia and that he took the items as

an afterthought.

After the close of evidence, the jury found Ramirez guilty of capital murder. The

State did not seek the death penalty, and the trial court sentenced Ramirez to life
2
imprisonment without parole. This appeal followed.

II. Sufficiency of the Evidence

By his first issue, Ramirez argues that the evidence at trial was insufficient.

Specifically, Ramirez argues that: (1) the State did not adequately rebut his self-defense

theory and the evidence was therefore insufficient to support the jury's rejection of this

defensive theory; and (2) there was no evidence proving that Ramirez committed the

murder in the course of robbing Garcia.1

A. Standard of Review and Applicable Law

In a sufficiency review, courts examine the evidence in the light most favorable to

the verdict to determine whether "any rational fact finder could have found guilt beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson legal-sufficiency standard is

the only standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt."). This standard requires reviewing courts to resolve

any evidentiary inconsistencies in favor of the judgment, keeping in mind that the jury is

the exclusive judge of the facts, the credibility of the witnesses, and the weight to give

their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE CRIM. PROC. ANN. art. 38.04

(West 1979) ("The jury, in all cases, is the exclusive judge of the facts proved, and of the

1
With regard to both of his sufficiency arguments, Ramirez asserts that the State was bound to
disprove beyond a reasonable doubt any exculpatory evidence contained within Ramirez's statement to the
police. This principle, referred to as the voucher rule, has been repudiated by the Texas Court of Criminal
Appeals. See Russeau v. State, 785 S.W.2d 387, 390 (Tex. Crim. App. 1990) (en banc) (holding that "the
voucher rule was rejected with the enactment of Rule 607"); see also TEX. R. EVID. 607 ("The credibility of a
witness may be attacked by any party, including the party calling the witness . . . ."). We are therefore not
persuaded by Ramirez's sufficiency challenges to the extent he relies on this rule.
3
weight to be given to the testimony. . . ."). Appellate courts do not re-evaluate the weight

and credibility of the evidence; they only ensure that the fact finder reached a rational

decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

Legal sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge

is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the

defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. In

this case, Ramirez committed the offense if he murdered Garcia as defined in section

19.02(b)(1) of the penal code and "intentionally commit[ed] the murder in the course of

committing or attempting to commit . . . robbery." TEX. PENAL CODE ANN. § 19.03(a)(2).

Under section 19.02(b)(1), murder is "intentionally or knowingly caus[ing] the death of an

individual." Id. § 19.02(b)(1) (West 2003). A person commits robbery if "in the course of

committing theft . . . and with intent to obtain or maintain control of the property . . . [he]

intentionally, knowingly, or recklessly causes bodily injury to another." Id. § 29.02(a)(1)

(West 2003). "A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to engage

in the conduct or cause the result." Id. § 6.03(a) (West 2003).

It is not necessary that the evidence directly proves the defendant's guilt;

"[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of the

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.
4
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Kuciemba v. State, 310 S.W.3d 460,

462 (Tex. Crim. App. 2010). A fact finder may support its verdict with reasonable

inferences drawn from the evidence, and it is up to the fact finder to decide which

inference is most reasonable. Laster, 275 S.W.3d at 523.

B. The Evidence

At trial, the State first called Leslie Lopez, who lived with her boyfriend in the

apartment above Garcia's apartment. Lopez testified that on the night of the murder,

they heard commotion coming from Garcia's apartment. Someone yelled "leave me

alone" several times. Lopez called 911, and shortly after she called, she looked out the

window and saw a man standing by a white car in the parking lot. Lopez testified that the

man was on the passenger side of the car and fidgeting with some items in the car.

Next, several McAllen Police Department officers who responded to the scene

testified. The officers testified that when they arrived at the apartment, they discovered

the back window to be open. When they looked inside the window, they saw a man

covered in blood lying on the bedroom floor. The officers forced their way into the

apartment and discovered that the man lying on the floor was dead. That man was

eventually identified as Garcia.

The McAllen Police Department detectives who investigated the incident testified

that when they entered Garcia's apartment, there appeared to have been a disturbance.

The living room was in disarray, and there were signs of a struggle in the bedroom. In

the living room, the detectives observed that Garcia's DVD player was unhooked and

hanging by its cord off the entertainment center; the television was sitting by the door and

appeared as if someone was about to steal it. The detectives also testified about the
5
white car found in the parking lot outside Garcia's apartment. The car was registered to

Saul Alvarado, who was determined to be Ramirez's roommate. Alvarado informed the

detectives that he had sold the car to Ramirez. When the detectives were leaving

Alvarado's house after questioning him, they encountered Ramirez walking down the

street toward Alvarado's house. Ramirez told the detectives that he wished to report a

stolen vehicle. He told the detectives that his car had been stolen from a movie theater

parking lot. The detectives offered to drive Ramirez to the police station to make his

report, and Ramirez agreed to go with the detectives.

On cross-examination, the detectives agreed that numerous items of value had

been left in the apartment. They also agreed that, based solely on their observation of

Garcia's bedroom, they could not determine with certainty the exact nature of the struggle

that occurred.

Two McAllen Police Department crime scene investigators (CSIs) testified more

specifically about the scene. After they received a warrant to search Ramirez's car, they

found the following items on the floorboards: two wallets, one of which contained

Garcia's driver's license; a credit card with Garcia's name on it; a Portable Play Station

(PSP) hand-held video game; a watch; and a CO2 canister from a paint ball gun. The

CSIs testified that the following items had been left in the apartment: a Nintendo game

console; a stereo and speakers; and a computer. They testified that when they swabbed

Ramirez's mouth later at the police station, they noticed scratches on his hands and arms

and a red stain on the back of his right tricep.

Alvarado testified that he was Ramirez's roommate. He testified that he did not

believe Ramirez owned a PSP or a watch.
6
 Norma Jean Farley, M.D., the forensic pathologist who conducted the autopsy on

Garcia, testified that Garcia died of blunt force head trauma. She testified that the CO 2

canister found in Ramirez's car would have been capable of causing Garcia's head

injuries. Dr. Farley also testified that Garcia had defensive bruises on his forearms. On

cross-examination, Dr. Farley agreed that she never examined Ramirez to ascertain his

injuries and could not testify as to the specifics of the altercation between Ramirez and

Garcia.

McAllen Police Department Detective Steve Ayala testified that he interviewed

Ramirez at the police station. Although Ramirez initially claimed that his car had been

stolen, he eventually gave a statement describing his encounter with Garcia on the night

of the murder. In his statement, Ramirez said that Garcia wanted to have a more serious

relationship. Ramirez told Garcia he was not interested in a serious relationship and, at

that point, attempted to get up and leave Garcia's apartment. Ramirez then described

the chain of events as follows:

And when I got up from the bed, he grabbed me by my arm and sat
me back on the bed. I then asked him what was wrong with him, and I told
him to leave me alone. Gabriel then started to hug me and I started to
push him away, but he then hit or scratched me on my left eye. I started to
push Gabriel, and he started to scratch me on my arms.

I then punched him on the shoulder, and he tried to grab me again. I
then went to my pants that were on the floor and took off the tank. I then
started to hit him on the head with it. I hit him about 10 to 15 times on the
head, and he got to hit me once on the face.

....

When I hit him the last time, he fell to the ground and I thought he had
fainted. I then hit him one more time on the head and I went to the
restroom. In the restroom, I went to bath – bathroom tub and I started to
clean the blood I had on my arms and on the tank.
7
Next, Ramirez explained that after he put the canister, his wallet, and cell phone in his car,

he returned to the apartment to check on Garcia. Ramirez stated that Garcia was not

moving. Ramirez then left the apartment through the back window when he heard a

knock on the front door. Ramirez stated that he walked home and that is where he first

encountered the police. He told the police that his car had been stolen from a movie

theater parking lot. The police took Ramirez to the station to make a report about the

stolen car, and while at the station, Ramirez gave the police the foregoing statement

about the evening's events at Garcia's apartment.

Finally, the State called Michael Garcia, the deceased's brother. Michael testified

that the watch recovered from Ramirez's car belonged to his brother. Michael also

testified that the wallet and PSP recovered from the car belonged to his brother.

After the State rested, Ramirez testified on his own behalf. He testified that he

met Garcia in an internet chat room, and the two arranged to meet for oral sex. The night

of the killing was the second night Ramirez had gone to Garcia's apartment for sex. On

that second night, Garcia and Ramirez argued about their relationship. Ramirez testified

that Garcia became angry when Ramirez told him he did not want a serious relationship.

According to Ramirez, Garcia picked him up and threw him on the bed. When Ramirez

attempted to flee, Garcia grabbed him from behind in a bear hug. Garcia held Ramirez

up; his feet were off the ground. Ramirez testified that he believed Garcia was going to

sexually assault him or kill him. Ramirez testified that he got a hold of the CO2 canister

and began swinging back and hitting Garcia on the head with it. When defense counsel

asked Ramirez "how is it that you were hitting him with this canister?", Ramirez replied,

8
"Here[,] where I would reach him in the back of the head." After hitting Garcia multiple

times like this, Ramirez testified that Garcia fell back on the bed, still holding him. Garcia

let Ramirez go, but when Ramirez stood up, Garcia hit him. Ramirez testified that he

then hit Garcia several more times in the head with the canister until "he was knocked

out." Ramirez then put on his clothes and went to the bathroom to wash the blood off his

hands. He testified that he took his cell phone, wallet, and a watch and left the

apartment. He returned to the apartment after putting the items in his car to "see if

[Garcia] was okay." Ramirez testified that he did not intend to kill Garcia and had no plan

to rob Garcia when he went to the apartment that night. Ramirez testified that he only

struck Garcia because he was trying to protect himself.

On cross-examination, the State questioned Ramirez about two prior offenses:

one conviction for theft and one conviction for making a false report to a police officer that

his car had been stolen. Ramirez agreed that both offenses reflected poorly on his

honesty. Ramirez also agreed that telling the police on the night of Garcia's murder

about his car being stolen was not the first time he had lied to police officers.

C. Self-Defense

Ramirez argues that the State "did not provide any credible evidence or argument

to contradict" his self-defense contentions. For this reason, Ramirez argues that the

evidence was insufficient to support the jury's rejection of his self-defense theory.

One may use force against another when and to the degree he reasonably

believes the force is immediately necessary to protect himself against the other's use or

attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31 (West Supp. 2010). This

includes using deadly force against the other if the actor "reasonably believes" the deadly
9
force is immediately necessary to protect himself against the other's use or attempted use

of unlawful deadly force. Id. § 9.32(a) (West Supp. 2010).

"The issue of self-defense is a fact issue to be determined by the jury, and a jury is

free to accept or reject the defensive issue, even if the evidence is uncontroverted." Hill

v. State, 99 S.W.3d 248, 252 (Tex. App.—Fort Worth 2003, pet. ref'd) (citing Wilkerson v.

State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994)). When a jury finds a defendant

guilty, there is an implicit finding against the defensive theory. Zuliani v. State, 97

S.W.3d 589, 594 (Tex. Crim. App. 2007). When reviewing the sufficiency of the

evidence concerning the jury's rejection of self-defense, "we determine whether after

viewing all the evidence in the light most favorable to the prosecution, any rational trier of

fact would have found the essential elements of murder beyond a reasonable doubt and

also would have found against appellant on the self-defense issue beyond a reasonable

doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (en banc); Lee v.

State, 259 S.W.3d 785, 791 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).

Here, there was some evidence that Ramirez was defending himself from Garcia's

unwanted advances. First, it is undisputed that Garcia was larger than Ramirez.

Ramirez testified that Garcia attacked him and that he feared for his life. Ramirez

testified that he swung back to hit Garcia with the canister as Garcia held him in a bear

hug from behind. Ramirez's account of the events was not directly contradicted by other

testimony or evidence at trial. Finally, one of the CSIs testified that Ramirez had

scratches on his arms, which could have reasonably been inferred as defensive wounds.

But there was also evidence under which the jury could have rejected Ramirez's

account. In his statement to police, Ramirez said that he continued to beat Garcia with
10
the canister even after he believed Garcia "had fainted." See TEX. PENAL CODE ANN §

9.32(a) (providing that the use of deadly force in self-defense is permissible only to the

extent the actor reasonably believes it is necessary to protect himself from the use of

deadly force). In fact, in his statement, Ramirez does not mention the bear hug he

described in his testimony at trial—he states only that he hit Garcia ten to fifteen times

with the canister after Garcia attacked him.

Dr. Farley, the forensic pathologist who performed the autopsy, testified that

Garcia had defensive bruises on his forearms, which is evidence contrary to Ramirez's

assertions that he swung back to hit Garcia as Garcia held him in a bear hug. See id.

Dr. Farley also testified that Garcia's head injuries were caused by significant force, from

which the jury could also have inferred that Ramirez was not striking Garcia from the

awkward position he claimed. See Laster, 275 S.W.3d at 523; see also Dale v. State, 90

S.W.3d 826, 833 (Tex. App.—San Antonio 2002, pet. ref'd) (reasoning that evidence of

the use of significant blunt force is physical evidence of an intent to kill).

Finally, the State called Ramirez's credibility into question by introducing prior

convictions in which he had lied to the police. See Brooks, 323 S.W.3d at 899 (holding

that the credibility of the witnesses is a matter committed solely to the province of the

jury). His credibility and consciousness of guilt were also raised by the evidence

showing that Ramirez lied to the detectives about his car being stolen. See King v.

State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (holding that circumstantial evidence

indicating a consciousness of guilt, such as false statements about the crime or an

attempt to cover it up, are relevant to show intent); Torres v. State, 794 S.W.2d 596,

598-600 (Tex. App.—Austin 1990, no pet.) (same).
11
 We conclude that the jury acted rationally in rejecting Ramirez's self-defense

theory and that the evidence was sufficient to show beyond a reasonable doubt that

Ramirez intentionally caused the death of Garcia. See Saxton, 804 S.W.2d at 914; Lee,

259 S.W.3d at 791; see also TEX. PENAL CODE ANN. § 19.02(b)(1). Even though

Ramirez's version of the events was not contradicted, the jury was free to disregard

Ramirez's testimony and instead credit the evidence that weighed against self-defense

and in favor of murder. See Hill, 99 S.W.3d at 252. We will not disturb the jury's

weighing of the evidence on appeal.

D. In the Course of Committing Robbery

Ramirez next argues that the evidence was insufficient to prove he committed the

murder in the course of robbing Garcia. Ramirez argues that the evidence shows he

took the several items he did as an afterthought and did not kill Garcia with the intent of

robbing him.

As it applies to capital murder under penal code section 19.03(a)(2), the phrase "in

the course of committing or attempting to commit" has been defined to mean "conduct

occurring in an attempt to commit, during the commission, or in immediate flight after the

attempt or commission of the offense." Riles v. State, 595 S.W.2d 858, 862 (Tex. Crim.

App. 1980) (en banc). "Proof of a robbery committed as an 'afterthought' and unrelated

to a murder would not suffice." O'Pry v. State, 642 S.W.2d 748, 762 (Tex. Crim. App.

1982) (en banc). The State must prove a nexus between the murder and the theft, i.e.,

that the murder occurred to facilitate the taking of the property. Ibanez v. State, 749

S.W.2d 804, 807 (Tex. Crim. App. 1986).

Ramirez contends that the numerous items of value left in the apartment prove he
12
had no plan to rob Garcia. Ramirez also contends that he did not bring items with him

ordinarily used to facilitate a robbery, "such as a firearm, knife, other deadly weapon, nor

duct tape, rope, gloves, or a duffel bag," and that this also shows he did not commit the

murder in the course of committing or attempting to commit a robbery.

While the foregoing is indeed circumstantial evidence weighing against conviction,

there was nonetheless circumstantial evidence that the jury could have reasonably

credited in determining that Ramirez did commit the murder in the course of robbing or

attempting to rob Garcia. Although the evidence showed that Ramirez left numerous

items of value in the apartment, it is undisputed that he did take Garcia's PSP, wallet, and

watch. There was testimony that Garcia's DVD player had been unhooked and was

hanging by its cord from the entertainment center and that his television was sitting on the

floor by the door. The jury could have rationally inferred that Ramirez returned to the

apartment to take more property, but when he heard a knock at the front door, he fled out

of fear of being caught by the police. Especially in light of his flight from the scene, the

jury was also free to disbelieve Ramirez's explanation that he returned to the apartment to

check on Garcia's condition. And again, the State called Ramirez's credibility into

question, and the jury could have concluded that he was not a trustworthy witness.

In short, as with Ramirez's self-defense theory, the jury acted within its province in

disregarding Ramirez's version of the events regarding the robbery. We conclude that

there was sufficient circumstantial evidence to show a nexus between the murder and the

taking of the property; a rational jury could have inferred that the taking of the property

was more than an afterthought.

13
E. Summary

Having concluded that the evidence was sufficient both to support the jury's

rejection of Ramirez's self-defense theory and the jury's determination that Ramirez

committed the murder in the course of robbing or attempting to rob Garcia, we overrule

Ramirez's first issue.

III. Admission of Evidence

In two issues, Ramirez argues that the trial court erred in admitting certain

evidence at trial.

A. Standard of Review

The standard of review for the admissibility of evidence is abuse of discretion.

Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (en banc). Under an abuse

of discretion standard, we will uphold the decision of the trial court concerning the

admissibility of evidence unless the ruling rests outside the zone of reasonable

disagreement. Id.

B. Crime Scene Video Tape

By his second issue, Ramirez challenges the admission of a DVD video recording

of the crime scene. Ramirez asserts that the DVD was a duplicate of the original video

recording and was not properly authenticated by the State, and the trial court therefore

abused its discretion in admitting it. See TEX. R. EVID. 901. However, assuming without

deciding that the trial court so erred, we are not persuaded by Ramirez's argument that

the error is reversible because he has provided no explanation of how the admission

harmed him.

In this case, any error in the admission of the DVD would not have been
14
constitutional error and is therefore subject to rule 44.2(b)'s harm standard. See Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (applying rule 44.2(b) to the

erroneous admission of evidence); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

App. 2001) (same); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)

(same); see also TEX. R. APP. P. 44.2(b). Under rule 44.2(b), we disregard any error that

did not affect the defendant's substantial rights. See TEX. R. APP. P. 44.2(b). A

defendant's substantial rights were not affected by the erroneous admission of evidence

"if the appellate court, after examining the record as a whole, has fair assurance that the

error did not influence the jury, or had but a slight effect." Motilla, 78 S.W.3d at 355

(internal quotation omitted).

In his brief, Ramirez makes no argument regarding harm. Absent an explanation

regarding the harm caused by the DVD's admission, we cannot conclude that the error, if

any, was reversible. Ramirez's second issue is overruled.

C. Autopsy Photographs

By his fourth issue, Ramirez argues that the trial court erred in admitting four

photographs from Garcia's autopsy. Ramirez argues that the photographs were more

prejudicial than probative and thus inadmissible. We disagree.

Rule 403 provides that, "[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice . . . ." TEX.

R. EVID. 403. The rule creates a presumption of admissibility of all relevant evidence and

authorizes the trial court to exclude such evidence only when there is a "clear disparity

between the degree of prejudice of the offered evidence and its probative value." Mozon

v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). In analyzing whether evidence is
15
more prejudicial than probative, the court should consider: (1) how probative the

evidence is; (2) the potential of the evidence to impress the jury in some irrational and

indelible way; (3) the time needed by the proponent to develop the evidence; and (4) the

proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim.

App. 2000). Under the fourth factor, one relevant inquiry is whether the fact of

consequence meant to be established by the evidence is in dispute. Id. at 242.

Generally, a photograph is admissible if verbal testimony as to
matters depicted in the photographs is also admissible. [Williams v. State,
958 S.W.2d 186, 195 (Tex. Crim. App. 1997)]; Long v. State, 823 S.W.2d
259, 271-72 (Tex. Crim. App. 1991). In other words, if verbal testimony is
relevant, photographs of the same are also relevant. Texas Rule of
Evidence 401 defines relevant evidence as "evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." A visual image of the injuries appellant inflicted on
the victim is evidence that is relevant to the jury's determination. The fact
that the jury also heard testimony regarding the injuries depicted does not
reduce the relevance of the visual depiction.

....

A court may consider several factors in determining whether the
probative value of photographs is substantially outweighed by the danger of
unfair prejudice. These factors include, but are not limited to: the number
of exhibits offered, their gruesomeness, their detail, their size, whether they
are black and white or color, whether they are close-up, and whether the
body depicted is naked or clothed. [Williams, 958 S.W.2d at 196]. The
availability of other means of proof and the circumstances unique to each
individual case must also be considered. Id.

Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

Here, the complained-of photographs showed Garcia's brain after the scalp had

been pulled back and the skull opened. The photographs were admitted through the

testimony of Dr. Farley, who testified that the photos depicted the brain injuries, such as

brain swelling, that Garcia suffered as a result of the blunt force head trauma. Ramirez
16
timely and adequately objected to the admission of the photographs and questioned Dr.

Farley on voir dire, in relevant part, as follows:

[Defense counsel]: And you can explain the injuries to the jury without
showing these photographs, correct?

[Dr. Farley]: Yes.

[Defense counsel]: Okay. There's no need to show this to the jury. You
can explain the severity of the injuries, how they
caused the death without displaying these to the jury;
is that correct?

[Dr. Farley]: I can explain it, but that shows – if there's a difference,
I can explain it, but sometimes . . . they don't
understand it without a visual, kind of — if you explain
the brain is swelling.

After argument by defense counsel and the State, the trial court then admitted the photos.

Ramirez contends that the photographs were not relevant to any disputed issue at

trial, as he never contested the cause of death or the type of injuries Garcia suffered, and

the photographs were therefore "not probative of any issue that was in dispute."

However, other factors weighed heavily in favor of the photographs' admission. The

complained-of photographs constituted only four of over thirty autopsy photographs

admitted by the State and described by Dr. Farley at trial. Our review of the record also

shows that the State did not emphasize these four photos any more than the other

autopsy photos. Further, although the photographs were gruesome, Dr. Farley's

testimony made it clear that the refracted scalp and skull were a result of the autopsy, and

there was no danger those aspects of the photos would be attributed to any act by

Ramirez. See Gallo, 239 S.W.3d at 763. Finally, the photographs depicted the extent

of Garcia's brain injuries, which was probative of Ramirez's state of mind and refuted his

17
defensive theory that he swung back awkwardly to hit Garcia with the CO2 canister. See

Dale, 90 S.W.3d at 833 (reasoning that evidence of significant blunt force trauma is

physical evidence of an intent to kill).

Ramirez also contends that the photographs were more prejudicial than probative

in that they "were not used in any meaningful way to assist Dr. Farley in her testimony."

The record demonstrates otherwise. As visual depictions of the injuries Dr. Farley was

describing, the photographs were highly relevant. See Gallo, 239 S.W.3d at 762. Dr.

Farley stated as much in response to defense counsel's questioning when she said that

jurors often need a visual to help them understand the verbal medical explanation given

by the pathologist.

In sum, we conclude that the complained-of photographs helped the jury

understand the extent of Garcia's injuries, were demonstrative of Ramirez's intent, and

did not constitute a large part of Dr. Farley's testimony and the State's case. The

photographs were highly relevant and probative and not unfairly prejudicial. The trial

court therefore did not abuse its discretion in admitting them. Ramirez's fourth issue is

overruled.

IV. Jury Instruction

By his third issue, Ramirez argues that the trial court failed to properly inform the

jury panel during voir dire regarding the mandatory punishment for capital murder and

that this error was reversible. In a capital murder trial where the State does not seek the

death penalty, as was the case here, section 12.31 of the penal code requires prospective

jurors to be informed that the State is not seeking the death penalty and that a sentence of

life imprisonment without parole is mandatory on conviction. See TEX. PENAL CODE ANN.
18
§ 12.31(b)(2) (West Supp. 2010). Ramirez complains of the following statement to the

jury panel by a prosecutor during voir dire:

Now, in a capital murder case, the State being the office of the
Criminal District Attorney, Mr. Rene Guerra, will decide there's only two
punishments available. There's either death or life with parole.

And Mr. Guerra will decide if he's going to seek the death penalty or if
he's going to seek life without parole. In this case, the State is seeking life
without parole. We're not seeking the death penalty in this case.

(Emphasis added.)

Even assuming that the prosecutor's misstatement amounted to error, Ramirez

made no objections that the State misinformed the jury about the mandatory punishment.

He has therefore preserved nothing for our review. See TEX. R. APP. P. 33.1(a); see also

Anderson v. State, No. 01-94-00568-CR, 1995 WL 717033, at *5 (Tex. App.—Houston

[1st Dist.] Dec. 7, 1995, pet. ref'd) (not designated for publication) (holding that where the

appellant failed to object to the trial court's failure to follow section 12.31, nothing was

preserved for review). We overrule Ramirez's third issue.

V. Comment on the Case and/or Evidence

By his fifth issue, Ramirez complains of a line of questioning during voir dire in

which the State asked the jury panel if they could convict someone of capital murder

based on the testimony of only one witness. Ramirez argues that the trial court

improperly commented on the case and/or the evidence when it made the following

statement related to those questions:

Ladies and gentlemen, let me address you on this point. This is the
nature of the beasts [sic], people. Like the example that [the prosecutor]
gave you is that you personally saw somebody break into your car, and
there's no other witness. Okay. This is the law. All right. One witness
is sufficient to convict.
19
 If you are just trying to get out of a jury panel, it's not going to work
because I'm going to send you to another courtroom. Now, let's be fair
here, answer honestly and follow the law, please. Let's proceed.

Again, even assuming that the trial court made an improper comment, Ramirez

failed to object to it. And absent a timely and specific objection to the improper comment,

any error was waived. See TEX. R. APP. P. 33.1(a); Sharpe v. State, 648 S.W.2d 705,

706 (Tex. Crim. App. 1983) (holding that any error in trial court's comments to jury is

waived absent an objection). We overrule Ramirez's fifth issue.

VI. Modification of Judgment

The trial court's judgment mistakenly states that Ramirez was convicted under

section 19.03(a)(3) of the penal code. See TEX. PENAL CODE ANN. § 19.03(a)(3) (West

Supp. 2010) (providing that a person commits capital murder if he commits murder "for

remuneration or the promise of remuneration or employs another to commit the murder

for remuneration or the promise of remuneration"). However, Ramirez was convicted of

capital murder pursuant to section 19.03(a)(2). See id. § 19.03(a)(2) (providing that a

person commits capital murder if he commits murder and "intentionally commits the

murder in the course of committing or attempting to commit kidnapping, burglary, robbery,

aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat"). The

Texas Rules of Appellate Procedure give this Court authority to modify judgments sua

sponte to correct typographical errors and make the record speak the truth. TEX. R. APP.

P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State,

299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.); Gray v. State, 628 S.W.2d

228, 233 (Tex. App.—Corpus Christi 1982, pet. ref'd). Therefore, we modify the

20
judgment to indicate that the statute under which Ramirez was convicted is section

19.03(a)(2) of the penal code. See TEX. PENAL CODE ANN. § 19.03(a)(2); see also TEX.

R. APP. P. 43.2; French, 830 S.W.2d at 609; Rhoten, 299 S.W.3d at 356; Gray, 628

S.W.2d at 233.

VII. Conclusion

The judgment of the trial court is affirmed as modified.

NELDA V. RODRIGUEZ
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 19th
day of January, 2012.

21