MEMORANDUM OPINION
No. 04-09-00323-CR
Roger RAMIREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CR-4291
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 24, 2010
REVERSED IN PART, MODIFIED IN PART, AFFIRMED IN PART
This appeal arises from Appellant Roger Ramirez’s conviction for felony murder,
manslaughter, and failure to stop and render aid following an accident resulting in the death of
Ryan Stephens. Based on Ramirez’s plea of true to the two enhancement allegations, Ramirez
was sentenced to life imprisonment in the Institutional Division of the Texas Department of
Criminal Justice, and fined $10,000.00 for each count. On appeal, Ramirez argues: (1) the trial
court’s imposition of a fine is not authorized by the habitual felony offender statute; (2) the trial
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court violated Ramirez’s right to be free from double jeopardy in entering a judgment convicting
Ramirez of felony murder and manslaughter; (3) the trial court erred in admitting the graphic
photograph depicting Mr. Stephens’ injuries; and (4) the evidence is factually insufficient to
support the jury’s verdict. We reverse the trial court’s judgment in part, modify the trial court’s
judgment in part, and affirm the trial court’s judgment in part.
FACTUAL BACKGROUND
On November 17, 2006, Ryan Stephens was trimming trees at a residence on Cadillac
Drive when he was struck and killed by a Dodge pickup truck. At the time of the accident, Mr.
Stephens was sharpening chainsaws and his body was severely disfigured in the accident. The
Dodge pickup that struck Mr. Stephens subsequently ran into a tree, backed away, and sped
down the road less than a mile before being abandoned. Two of Mr. Stephens’ employees were
also at the residence at the time of the incident, but neither employee could identify the driver of
the vehicle. The truck in question had been reported stolen earlier that same morning from a
motel parking lot. A video of the theft showed two individuals stealing the truck, but lacked any
detail.
Mr. Stephens’ employee, Roberto Carlos Sierra Luna, described the assailant as a
Hispanic man with a mustache. Another witness testified that she saw the truck traveling at an
excessive speed, but could not identify anyone in the vehicle. An additional witness a few
blocks away described a man running from the direction of Cadillac Drive as a Hispanic male,
5’6” or 5’7”, in his late thirties or forties, with a beard with gray spots. A video obtained from a
nearby local business could not provide a clear view of the individual in question.
The officers arriving at the accident scene collected several items for testing, including a
stain from the deployed airbag. Subsequent DNA tests consistent with Ramirez’s DNA profile,
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along with a Crimestoppers tip, led officers to conclude that Ramirez was the driver of the truck
that struck Mr. Stephens. During questioning and at trial, Ramirez admitted to being involved in
the theft of the Dodge truck and that he was, in fact, in the vehicle during the early morning
hours on the day in question. Ramirez further relayed that he was using drugs while sitting in the
truck and that the airbag had deployed prior to his being in the truck.
Ramirez testified in his own defense, adamantly denying that he was driving the truck
when Mr. Stephens was killed. To support his allegations, Ramirez offered testimony supported
by several defense witnesses that he was reporting to his parole officer at the time of the
accident. The State, however, also presented witnesses, including two parole officers, that
testified that Ramirez did not report on the day of the accident, but instead, reported three days
later.
The jury charge alleged that Ramirez committed felony murder, manslaughter,
unauthorized use of a motor vehicle, and failure to stop and render aid. The jury returned a
guilty verdict on all counts. The trial court set aside the jury’s finding of guilt on the
unauthorized use of a motor vehicle and entered a judgment finding Ramirez guilty of felony
murder, manslaughter, and failure to stop and render aid. This appeal ensued.
DOUBLE JEOPARDY & ILLEGAL FINE
The State concedes that the conviction and life sentence for both felony murder and
manslaughter violate Ramirez’s rights against double jeopardy and that the manslaughter
conviction should be vacated, and the felony murder conviction upheld. See Ervin v. State, 991
S.W.2d 804, 816–17 (Tex. Crim. App. 1999); Bigon v. State, 252 S.W.3d 360, 369–70 (Tex.
Crim. App. 2008); (prohibiting conviction for felony murder and manslaughter stemming from
the same conduct and same offense); Ex parte Cavazos, 203 S.W.3d 333, 338–39 (Tex. Crim.
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App. 2006) (authorizing appellate courts to affirm the conviction on the most serious offense and
vacate the other conviction).
Additionally, the State concedes that the habitual felony offender statute does not
authorize the assessment of a fine. See TEX. PENAL CODE ANN. § 12.42(d) (West 2009).
Ramirez, however, argues that the assessment of a fine requires this court to remand the matter
for a new sentencing hearing. The State argues that the judgment should be reformed because
the imposition of a fine was the only penalty outside the proper punishment range. This Court
has the power to modify incorrect judgments when we have the necessary data and information
to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993); see, e.g., McCray v. State, 876 S.W.2d 214, 217 (Tex. App.—Beaumont 1994, no pet.)
(modifying a judgment containing a sentence greater than the applicable range of punishment).
Accordingly, we modify the trial court’s judgment to delete the $10,000.00 fine for each
conviction.
ADMISSION OF THE PHOTOGRAPH
During its case-in-chief, the State offered a photograph, taken immediately after the
accident, depicting the severe damage to Mr. Stephens’ body. Ramirez argues that the probative
value of the evidence was low compared to the prejudicial effect of the photograph. See TEX. R.
EVID. 403.
A. Standard of Review
A trial court’s ruling on the admission of evidence is reviewed for an abuse of discretion.
See State v. Mechler, 153 S.W.3d 435, 438–39 (Tex. Crim. App. 2005). A trial court abuses its
discretion when it acts arbitrarily or unreasonably, and without reference to guiding rules and
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). An appellate
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court views the evidence in the light most favorable to the trial court’s ruling and affords almost
total deference to the trial court’s findings of fact that are supported by the record. Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This Court will not reverse a trial court’s
findings so long as the ruling is “within the zone of reasonable disagreement.” Mechler, 153
S.W.3d at 440.
B. Texas Rule of Evidence 403
Texas Rule of Evidence 403 permits the exclusion of relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A
review under Rule 403 requires a trial court to consider: the probative value of the evidence; the
evidence’s potential to impress the jury in some irrational, yet indelible way; the time required to
develop the evidence; and the proponent’s need for the evidence. Id.; Shuffield v. State, 189
S.W.3d 782, 787 (Tex. Crim. App. 2006). More specifically, with regard to photographs, several
additional factors are considered: the number, size, gruesome nature, and the color of the
photographs; the ability of the State to prove the evidence by other means; and the circumstances
unique to the individual case. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992);
see also Davis v. State, 313 S.W.3d 317, 330 (Tex. Crim. App. 2010); Erazo v. State, 144
S.W.3d 487, 489–90 (Tex. Crim. App. 2006). As the Erazo Court explained, “If there are
elements of a photograph that are genuinely helpful to the jury in making its decision, the
photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh
the helpful aspects.” Erazo, 144 S.W.3d at 491–92.
C. Analysis
There is no dispute that only one photograph is in question. It was the only photograph
used to identify Mr. Stephens at the scene, and the photograph portrays a color depiction of the
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very violent end to Mr. Stephens’ life. See Narvaiz, 840 S.W.2d at 429. As such, there is little
question that the photograph would have had a serious impact on the jury. See id. Ramirez
argues that the photograph had little, if any, probative value because the only issue before the
jury was whether Ramirez was driving the Dodge truck when it struck Mr. Stephens.
We disagree. The trial court could have reasonably determined that the photograph was
probative of Mr. Stephens’ identity and the manner in which he was killed. The trial court could
have also reasonably determined that the photograph was probative of an essential element of the
crime of failure to stop and render aid. Failure to stop and render aid requires the State to prove
that the defendant knew the circumstances surrounding his conduct. See TEX. TRANSP. CODE
ANN. § 550.021 (West 2009); St. Clair v. State, 26 S.W.3d 89, 98 (Tex. App.—Waco 2000, pet.
ref’d). More specifically, the State was required to prove that Ramirez knew that an accident had
occurred, and that a victim suffering an injury required him to “stop, return or remain” at the
scene. See Huffman v. State, 267 S.W.3d 902, 909 (Tex. Crim. App. 2008). Thus, the picture
was probative of the elements upon which the jury was called to decide.
Moreover, the trial court could have reasonably determined that the risk of undue
prejudice was low. The photograph was not enlarged or viewed on a video screen in open court.
The photograph was not a close up of the injuries, but instead a representation of how Mr.
Stephens would have appeared to someone standing a few feet away from the accident scene.
Finally, the five-inch by eight-inch photograph was offered to the jury, and individually passed
to the jurors, allowing each juror to view the picture as long as each felt necessary. We cannot
conclude that it was outside the zone of reasonable disagreement for the trial court to admit the
photograph. Thus, the trial court did not abuse its discretion. See TEX. R. EVID. 403; Mechler,
153 S.W.3d at 438–39.
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FACTUAL SUFFICIENCY
Ramirez next argues that the evidence is factually insufficient to support the jury’s
finding of guilt. The question of factual sufficiency in the present case focuses on the
identification of Ramirez as the driver of the vehicle that struck Mr. Stephens. The State’s case
relies on DNA evidence, witness testimony, alibi witness testimony, and circumstantial evidence.
A. Standard of Review
Recently, the Court of Criminal Appeals has determined that there is no meaningful
distinction between a legal-sufficiency standard under Jackson v. Virginia, 443 U.S. 307 (1979),
and a factual sufficiency review under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
We, therefore, apply the single legal sufficiency standard of review as set forth in Jackson v.
Virginia, which is whether, considering all the evidence in the light most favorable to the verdict,
was the jury rationally justified in finding guilt beyond a reasonable doubt. Id. at 319. The
standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v.
State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
B. Evidence of Identity
Ramirez alleges that the evidence is insufficient based on lack of identification. More
specifically, Ramirez claims the State’s case is based on indistinct descriptions of the truck’s
driver, an unclear video, an anonymous caller providing the name “Ramirez,” and DNA evidence
that Ramirez was in the truck prior to the accident. Ramirez argues that his alibi witness and the
State’s failure to prove that he was injured make the jury’s verdict insufficiently supported by the
evidence. Although the State relied entirely on circumstantial evidence, we note that the identity
of the perpetrator may be proven by either direct or circumstantial evidence. See Earls v. State,
707 S.W.2d 82, 85 (Tex. Crim. App. 1986).
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1. DNA Evidence
After collecting evidence swatches from the deployed airbag in the truck, the sample was
tested by Erin Reat, the Quality Assurance Manager for the Bexar County Criminal Investigation
Laboratory. In January of 2007, Reat developed a genetic profile from the swatch removed from
the airbag and, in March of 2007, the profile was compared to DNA taken from Ramirez. Reat
testified that Ramirez’s DNA profile “was expected to be found once in a population of one
quadrillion people.” Reat opined that “based on the rarity of [Ramirez’s] sample,” that the DNA
collected from the airbag “originated with Roger Ramirez.”
Ramirez did not contest the DNA results, but did contest the circumstances surrounding
how his DNA came to be on the airbag. San Antonio Police Detective Adam Zeldes testified
that based on (1) the undisturbed powder residue on the dashboard of the truck, and (2) the
manner in which the airbag was draped over the steering wheel making the vehicle difficult to
maneuver, he believed that the evidence supported that the truck’s airbag had “recently
deployed.” In response, Ramirez explained that he was in the truck in the late evening to early
morning hours snorting methamphetamines and that he may have coughed or spit on the airbag.
He was adamant, however, that the airbag had deployed when the two men that stole the vehicle
hit the steering wheel with a sledgehammer. Yet, Detective Zeldes opined that the airbag would
have only deployed from an external force on the vehicle, not an impact on the steering wheel
itself. Moreover, Sergeant Mark Hubbard testified that contrary to Ramirez’s allegations, there
were no signs that the steering wheel was hit with a sledgehammer.
Furthermore, Reat testified that the soiling on the airbag appeared “shaped somewhat as a
face” and that the stain was consistent with a mouth coming into contact with the airbag. Other
witnesses provided additional support for the State’s case. Mr. Luna, one of Stephens’
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employees, testified that he was approximately six feet away from the truck at the time of the
accident. He testified that he ran toward the truck immediately after impact, and saw the airbag
inflated; this suggests that the airbag deployed as a result of the impact with Mr. Stephens.
2. Alibi
Ramirez next argues that the descriptions provided by the State’s witnesses were vague
and inconclusive. More specifically, no one identified Ramirez as the driver of the vehicle. Kay
Spears testified that as she was driving down Cadillac Drive, she looked up and saw a truck
approaching her at an extremely high rate of speed. She further explained she was able to see
only the truck, and could not recognize anyone in the vehicle or even testify as to how many
people were in the vehicle. Additionally, a video collected from a nearby gas station did not
provide a clear picture of the suspect.
Furthermore, Ramirez testified that he was not on Cadillac Drive at the time of the
accident, but was instead on Perrin Beitel Road reporting to his parole officer. Ramirez testified
that Monica Martinez picked him up and that they drove to the parole office. According to
Ramirez, when he arrived at the parole office, he was informed that his parole officer, John
Rangel, was not at the office. Ramirez testified that a different parole officer told him that he
would have to reschedule his appointment for Monday, November 20. He also testified that he
was at the parole office for about fifteen to twenty minutes and then he left. Denise Vasquez,
Ramirez’s niece, corroborated Ramirez’s testimony and relayed that she followed Ramirez to the
parole office where she waited for approximately thirty to forty-five minutes, and that Ramirez
was in the parole office the entire time.
Several parole officers, however, contradicted this testimony. Julie Morales and John
Rangel both testified that Ramirez did not report as directed on November 17, the day in
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question, but instead reported on Monday, November 20. The sign-in sheet, which did not
include Ramirez’s signature, was admitted into evidence. More specifically, Rangel reported
that he was, in fact, at the parole office on November 17 from 7:30 a.m. to 10:30 a.m. and
reiterated that Ramirez did not appear on that day. In response, Ramirez explained that he was
required to report weekly, and that if he had not appeared on November 17, a rapid response
notice would have been issued, but yet no notice was issued. On redirect, though, Morales
explained that because November 17 was a Friday, the rapid response would not have issued
before Monday. Thus, because Ramirez reported on Monday, no rapid response notice was
issued.
Ramirez further testified that the fact he had a “scheduled appointment” on November 20
was evidence that he was at the parole office on November 17. More specifically, Ramirez
argued that the “scheduled appointment” had to be made in person. Once again, however,
Morales explained that Ramirez could have made the “scheduled appointment” either in person
or on the phone. Morales relayed that there was no record to show how the appointment was
rescheduled. Thus, Morales explained the “scheduled appointment” was not evidence of
Ramirez’s appearance at the parole office on November 17.
3. Ramirez’s Alleged Injuries
Rangel testified that when Ramirez appeared on November 20, Ramirez was injured and
on crutches. Conversely, Ramirez, Vasquez, Monica Ramirez, and Elizabeth Madero (Ramirez’s
ex-wife) all testified that Ramirez was not on crutches in November of 2006, but that he was
injured during a roofing accident in February of 2007. The defense argued that Rangel was
simply confused about the dates in question. The State acknowledges that there is no direct
evidence that the driver of the vehicle was injured in the accident. Thus, the State argues that
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Rangel’s testimony that Ramirez was on crutches when he reported on November 20 was simply
evidence that substantiated Rangel’s memory of his meeting with Ramirez on that day.
C. Analysis
All of Ramirez’s sufficiency arguments touch on the jury’s role as the fact-finder. We
remain mindful that the jury is the sole judge of the weight and credibility of the evidence and is
entitled to resolve conflicts in the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West
2007); Johnson, 23 S.W.3d at 7. The DNA evidence, coupled with the contradictory alibi
testimony, provides sufficient support for a jury to reasonably infer that Ramirez was on Cadillac
Drive at the time of the accident, was in the truck when the airbag deployed, and was not at the
parole office at the time of the accident. See Earls, 707 S.W.2d at 85. The jury apparently
resolved the conflicting testimony in the State’s favor. Based on a review of “the evidence in the
light most favorable to the prosecution,” we conclude a rational jury could find beyond a
reasonable doubt that Ramirez was guilty of felony murder. See Jackson, 443 U.S. at 319. Thus,
the evidence is sufficient to support the conviction.
CONCLUSION
Because the probative value of the photograph of the victim was not substantially
outweighed by the prejudicial effect, we conclude the trial court did not abuse its discretion in
admitting the photograph. Additionally, although the defense presented evidence that Ramirez
was not the driver of the Dodge pickup truck that struck and killed Mr. Stephens, the State
presented evidence of Ramirez’s DNA on the deployed airbag and evidence negating his alibi
testimony. As such, we cannot say the evidence is insufficient to support the jury’s verdict.
Finally, based on the State’s concessions, a conviction of both the felony murder and the
manslaughter offenses violate Ramirez’s rights against double jeopardy, and the manslaughter
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conviction should be set aside and the felony murder conviction upheld. Furthermore, the
habitual felony offender statute does not authorize the assessment of a fine. Accordingly, we
reverse the trial court’s judgment with regard to the manslaughter conviction and reform the
judgment to delete the assessment of a fine. The judgment of the trial court is affirmed in all
other aspects.
Rebecca Simmons, Justice
DO NOT PUBLISH
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