NO. 07-09-0157-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 24, 2011
______________________________
CODY RAMIREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422,891; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Following a plea of not guilty, Appellant, Cody Ramirez, was convicted by a jury
of aggravated assault of a public servant,1 with an affirmative finding on use of a deadly
weapon.2 Punishment was assessed by the jury at confinement for life. Presenting two
1
Tex. Penal Code Ann. § 22.02(b)(2)(B) (West Supp. 2010).
2
At the time of the offense, Appellant was sixteen years old. The trial court did take judicial notice of the
juvenile certification in the underlying case.
issues, Appellant questions whether (1) the trial court constructively denied his right to
testify in violation of due process by indicating an intent to allow improper impeachment
evidence and (2) the trial court erred in not submitting a jury charge that properly
instructed it regarding the affirmative defense of duress.3 We affirm.
Background Facts
At approximately 4:00 a.m. on December 5, 2006, Officers Michael Chavez and
Michael Matsik, in separate patrol cars, responded to an aggravated robbery at a local
gaming establishment. Per procedure, they retrieved their patrol rifles from the trunks of
their respective patrol cars. While Officer Chavez was loading his rifle, two suspects
wearing black ski masks and hooded sweatshirts exited the back door of the gaming
establishment and began running for the east gate. Although ordered to the ground, the
two suspects began to flee in opposite directions. Officer Chavez gave chase to the
suspect running south, while Officer Matsik gave chase to the other suspect. At the
time, both officers observed a small gray or silver car parked in the alley.
Officer Matsik temporarily lost sight of his suspect when the suspect cut through
a fence. A female bystander pointed Officer Matsik in the suspect's direction. Although
the area was dark, Officer Matsik observed a silhouette followed by a muzzle flash.4 He
immediately dropped to the ground as multiple shots were fired. He picked himself up
to return fire but noticed the safety on his rifle was still engaged. The suspect had
retreated over a gate into a residential area, and Officer Matsik could not get a clear
shot.
3
See Tex. Penal Code Ann. § 8.05 (West 2003).
4
Officer Matsik testified that a muzzle flash is a flash that comes from the barrel of a weapon upon firing.
2
After Officer Chavez heard shots fired, he decided to check on his fellow officer.
As he approached, he saw the silver car which he had earlier observed in the alley
speed away. Other officers on the scene pursued the car and eventually arrested
Appellant. The second suspect, the suspect Officer Chavez had originally pursued,
was later found hiding under a door that was leaning up against a building.
After the suspects were arrested, Officer Matsik experienced a burning sensation
on his upper thigh. He pulled his left pant leg up and, using the lights of the patrol car,
noticed a bullet hole in the lower part of the pant leg toward his ankle. He also had
graze wounds on his upper thigh and just above his left wrist. He concluded that bullets
were fired in his direction and that contact was made on at least three occasions.
Although Appellant was initially charged in a six-count indictment, the State
announced just before trial that it was proceeding only on count VI, the charge of
aggravated assault with a deadly weapon against Officer Matsik. After a jury trial,
Appellant was convicted and sentenced to life imprisonment.
I. Issue One--Did the trial court constructively deny Appellant his right to
testify by announcing that it would permit the State to cross-examine him
with improper impeachment evidence?
Appellant proceeded to trial on the theory of duress as an affirmative defense.
The theory was that Appellant's uncle, Richard Ramirez,5 coerced him into committing
the aggravated robbery and threatened to kill him if he got caught. Ramirez testified
that he "masterminded" the robbery at the gaming establishment, provided Appellant
with a gun, and threatened his life. He further testified that his instructions to Appellant
5
Richard Ramirez's charges in the aggravated robbery were dismissed in exchange for his plea to capital
murder for which he is serving a life sentence without the possibility of parole.
3
included not getting caught or he would have to "deal with" him. His advice to Appellant
to evade officers was to "shoot low" and "[g]et away." Richard Ramirez was inside the
gaming establishment at the time of the robbery but was not armed at the time and was
not near Appellant.
Following Ramirez's testimony, defense counsel advised the trial court that
Appellant indicated he wanted to testify and asked that he be properly admonished.
Defense counsel's understanding at that time was that Appellant would only be
impeached with prior felonies or misdemeanors involving moral turpitude. The
prosecutor responded that with the affirmative defense of duress, Appellant would have
to accept full responsibility for the crime and that his character and relationship with
Richard Ramirez would be explored.
The jury was excused and Appellant took the stand and was admonished by the
trial court about the waiver of his right against self-incrimination. After a brief question
and answer period, the trial court found that Appellant had freely and voluntarily waived
that right. The court then requested that the prosecutor reveal her intended line of
questioning.
The prosecutor advised the court that based on the affirmative defense of
duress, she intended to explore Appellant's relationship with his uncle which would put
Appellant's character at issue. She also expressed her intent to question Appellant on
his problems with the juvenile system and possible gang activity.
The trial court ruled that the prosecutor could ask questions on the proposed
areas, except for any questions relating to gang activity. Defense counsel sought
4
clarification and the trial court explained that its ruling would permit questions on
Appellant's juvenile record and extraneous offenses without limiting those extraneous
offenses to prior acts involving moral turpitude.
Defense counsel then asked to confer with Appellant after which he raised the
following objection:
Your Honor, in light of the Court's ruling, allowing the prosecution to go
into juvenile records and extraneous offenses, I have spoken with my
client, [Appellant], and he now informs me that he does not wish to testify
at this point during the guilt - innocence stage.
I wish to state for the record that I am objecting to the Court's ruling, and I
would submit that the ruling itself prohibits him from taking the stand under
the present circumstances.
Defense counsel's objection was overruled.
By his first issue, Appellant argues that the trial court's ruling constructively
denied him the right to testify in his own defense. While acknowledging that Rule
404(b) of the Texas Rules of Evidence allows the admission of other crimes, wrongs or
acts for certain limited purposes, Appellant maintains the State did not offer a legitimate
limited purpose for the scope of its intended cross-examination. He further maintains
the trial court's ruling would have allowed impermissible impeachment evidence
regarding Appellant's character. The court's action, he asserts, presented him with a
Hobson's choice.
An accused has the right to testify on his own behalf. See Rock v. Arkansas, 483
U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). See also Tex. Const. art. I, section
10; Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005). If, however, an accused
5
exercises his right to testify, he is subject to the same rules governing examination and
cross-examination as other witnesses. Brown v. State, 617 S.W.2d 234, 236
(Tex.Crim.App. 1981). "He may be contradicted, impeached, discredited, attacked,
sustained, bolstered up, made to give evidence against himself, cross-examined as to
new matter, and treated in every respect as any other witness testifying, except where
there are overriding constitutional or statutory prohibitions." (Citations omitted). Id.
The decision of an accused whether to testify "seldom turns on the resolution of
one factor among many." New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59
L.Ed.2d 501 (1979) (Blackmun, J., dissenting). When a defendant chooses not to
testify, a reviewing court has no way of knowing whether the State actually would have
sought to impeach him with inadmissible evidence of extraneous offenses or prior
convictions. Luce v. United States, 469 U.S. 38, 42, 105 S.Ct. 460, 83 L.Ed.2d 443
(1984). In Luce, the Supreme Court adopted the rule that "[t]he preferred method for
raising claims such as [Appellant's] would be for the defendant to take the stand and
appeal a subsequent conviction . . . . Only in this way may the claim be presented to a
reviewing court in a concrete factual context." Id. at 43 (citing Portash, 440 U.S. at 462
(Powell, J., concurring)). The Supreme Court held that because Luce did not testify, he
failed to preserve his claim of improper impeachment evidence. Luce, 469 U.S. at 43.
In Jackson v. State, 992 S.W.2d 469, 479-80 (Tex.Crim.App. 1999), the Court
rejected an argument similar to the one being made here, i.e., that the trial court
effectively denied the defendant his right to testify by refusing to limit the State's cross-
examination. In Jackson, the defendant wanted to testify during the punishment phase
of his capital murder case, for the limited purpose of raising mitigation issues. He
6
sought to foreclose cross-examination about extraneous offenses. Jackson, 992
S.W.2d at 479. Because the defendant failed to testify the Court found the reasoning of
Luce to be applicable and held that he failed to preserve error for review. Id. at 480.
In the present case, after conferring with his counsel, Appellant chose not to
testify. Without his testimony, this Court cannot speculate on whether the prosecutor
would have cross-examined Appellant on matters outside the scope of permissible
impeachment. Notwithstanding that the prosecutor had announced certain areas which
she intended to explore on cross-examination, without Appellant's testimony, this Court
is at a disadvantage in attempting to determine (1) the precise nature of the State's
questions, (2) Appellant's actual evidentiary objection, (3) whether the trial court's ruling
would have remained the same or would have changed as the case unfolded, (4)
Appellant's responses to the State's questions, and (5) whether any resulting error in
permitting impermissible evidence would have been harmless. See Luce, 469 U.S. at
41. We conclude that, just as in Luce and Jackson, Appellant's objection regarding the
trial court's "prospective ruling" regarding possible impeachment evidence preserved
nothing for review. Issue one is overruled.
II. Issue Two-- Did the trial court err in failing to submit a jury charge that
properly instructed the jury regarding the affirmative defense of duress?
Duress is an affirmative defense if the actor engaged in proscribed conduct
because he was compelled to do so by threat of imminent death or serious bodily injury
to himself or another. Tex. Penal Code Ann. § 8.05(a) (West 2003). A person is
compelled to act within the meaning of the duress defense only if confronted by force or
threat of force that would render a person of reasonable firmness incapable of resisting
7
the pressure. Id. at (c). Whether a "person of reasonable firmness" would be incapable
of resisting the pressure to engage in proscribed conduct is an objective inquiry rather
than a subjective one. See Wood v. State, 18 S.W.3d 642, 651 n.8 (Tex.Crim.App.
2000).
Appellant does not complain about the abstract or application portions of the
court's charge as they pertain to the affirmative defense of duress. Rather, he
specifically maintains that the following paragraph improperly instructed the jury that a
special finding was required for or against the affirmative defense of duress:
If, however, after viewing the facts from the defendant's standpoint, you do
not find by a preponderance of evidence that defendant's participation in
the offense, if any, was compelled by such threat of force by Richard
Ramirez as would render a person of reasonable firmness incapable of
resisting the pressure thereof, then you will find against the defendant on
his defense of duress.
During the charge conference, defense counsel objected to inclusion of the above-
quoted paragraph. Counsel's objection was overruled.
Appellant argues the charge is a misstatement of the law because it improperly
instructs the jury to find "against the defendant" if it does not find the affirmative defense
of duress by a preponderance of the evidence. We disagree.
First, the objected to portion of the court's charge does not instruct the jury to find
against the defendant on the issue of guilt or innocence if it does not find the affirmative
defense of duress by a preponderance of the evidence. Instead, in such a
circumstance, it only instructs the jury to find against the defendant on the affirmative
defense issue of duress. Therefore, Appellant's argument lacks substantive merit.
8
Secondly, assuming arguendo, that the trial court's inclusion of the objected-to
paragraph was error, Appellant was not harmed.6 The function of the jury charge is to
instruct the jury on the law applicable to the case. Tex. Code Crim. Proc. Ann. art.
36.14 (West 2007); Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995), cert.
denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). The charge consists of an
abstract statement of the law and the application paragraph(s). See Plata v. State, 926
S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled on other grounds, Malik v. State, 953
SW.2d 234, 239 (Tex. 1997). When reviewing the charge for alleged error, we examine
the charge as a whole, considering the relationship between the abstract and
application portions of the charge. King v. State, 189 S.W.3d 347, 364 (Tex.App.--Fort
Worth 2006, no pet.).
To avail oneself of the affirmative defense of duress, the accused must admit to
having engaged in the proscribed conduct. See Giesberg v. State, 984 S.W.2d 245
(Tex.Crim.App. 1998), cert. denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51
(1999); Timms v. State, 2009 Tex.App. LEXIS 10042, at *3 (Tex.App.--Amarillo April 22,
2009, pet. ref'd). Forcing the State to carry its burden of proof is not an admission of the
charged offense. Id. at *5. Having failed to admit to the offense, Appellant was not
harmed by any alleged error in the manner in which the defensive issue of duress was
presented to the jury.
6
The degree of harm necessary under Almanza v. State, 686 S.W.2d 157, 171 (Tex. 1984), is some harm
because the paragraph complained of was objected to and the trial court overruled the objection.
9
Furthermore, in order to meet the requirements of duress, the threat of death or
serious bodily injury must be imminent.7 (Emphasis added). An imminent threat has
two components of immediacy. Anguish v. State, 991 S.W.2d 883, 886 (Tex.App.--
Houston [1st Dist] 1999, pet. ref'd). First, the person making the threat must intend and
be prepared to carry out the threat immediately. Second, carrying out the threat must
be predicated upon the threatened person's failure to commit the charged offense
immediately. Id. The Texas Court of Criminal Appeals has determined that a threat of
death at some indefinite time in the future is insufficient to satisfy the requirement of
imminence. Blount v. State, 542 S.W.2d 164, 166 (Tex.Crim.App. 1976).
Part of the State's theory in opposition to the defense of duress was that
Appellant was not acting under duress because he was not in imminent danger at the
time of the aggravated robbery. The testimony elicited from Ramirez was that if
Appellant was apprehended, he would "deal with" him when he tried to get him out of
jail. He explained that he would carry out his threat at some time in the future. When
asked again, "you would have dealt with [Appellant] at some point in the future,"
Ramirez replied, "[o]f course." Ramirez also answered "no" when asked if he was within
"killing range" of Appellant at the time of the robbery. Because Ramirez's threat to
Appellant was a future threat, there was no threat of imminent death or serious bodily
injury.
7
Appellant did not testify. This Court has found that one asserting the affirmative defense of duress must
admit to having engaged in the proscribed conduct. See Timms v. State, 2009 Tex.App. LEXIS 10042, at
*3 (Tex.App.--Amarillo April 22, 2009, pet. ref'd). Forcing the State to carry its burden of proof is not an
admission of the charged offense. Id. at *5.
10
Based upon the record before us, we conclude that the trial court did not commit
reversible error by failing to submit a jury charge that properly instructed the jury
regarding the affirmative defense of duress. Issue two is overruled.
Reformation of Judgment
In reviewing the record, it has come to this Court's attention that the trial court's
judgment contained in the clerk's record includes clerical errors. The summary portion
of the judgment reflects that Appellant entered a plea of guilty to the charged offense
while the reporter's record reveals that Appellant in fact entered a plea of not guilty after
the indictment was read. Additionally, the "Statute for Offense" reflects that Appellant
was convicted under "§ 22.02(b)(2)." However, aggravated assault of a public servant
is found at section 22.02(b)(2)(B) of the Texas Penal Code.
This Court has the power to modify the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. Tex. R. App.
P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate
courts have the power to reform whatever the trial court could have corrected by a
judgment nunc pro tunc where the evidence necessary to correct the judgment appears
in the record. Ashberry v. State, 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet.
ref'd). The power to reform a judgment is "not dependent upon the request of any party,
nor does it turn on the question of whether a party has or has not objected in the trial
court." Id. at 529-30.
The record clearly shows that Appellant entered a plea of not guilty to the
indictment and that he was convicted pursuant to section 22.02(b)(2)(B) of the Texas
11
Penal Code. Thus, we modify the trial court's judgment to reflect a plea of "not guilty"
and also modify the "Statute for Offense" to reflect "§ 22.02(b)(2)(B)" in the summary
portion of the judgment. As modified, the trial court's judgment is affirmed.
Patrick A. Pirtle
Justice
Publish.
12