Michael David Ramirez v. State

ACCEPTED
FILED 13-14-00301-CR
THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
CORPUS CHRISTI 2/23/2015 3:21:34 PM
DORIAN RAMIREZ
2/23/15 CLERK
DORIAN E. RAMIREZ, CLERK
IN THE COURT OF APPEALS
BY DTello
FOR THE THIRTEENTH DISTRICT OF TEXAS
Cause No.13-14-00301-CR RECEIVED IN
13th COURT OF APPEALS
Cause No.13-14-00171-CR
CORPUS CHRISTI/EDINBURG, TEXAS
Cause No.13-14-00172-CR2/23/2015 3:21:34 PM
DORIAN E. RAMIREZ
MICHAEL DAVID RAMIREZ Clerk
V.
STATE OF TEXAS

On Direct Appeal from:
THE DISTRICT COURT OF
THE 445TH JUDICIAL DISTRICT IN
CAMERON COUNTY, TEXAS

CAUSE NO. 09-CR-2098-I
CAUSE NO. 2013-DCR-02246
CAUSE NO. 10-CR-2650-I

* * * * * * * * * *
APPELLANT'S BRIEF
* * * * * * * * * *
LARRY WARNER
Counsel for Michael Ramirez
COA No.13-14-00171-CR
3109 Banyan Circle
Harlingen, Tx 78550 7443
Phone (956) 454 4994
Tex.State Bar# 20871500
Usdc,Stdx# 1230
office@larrywarner.com
website: larrywarner.com
Member, Bar of the Supreme
Court of the United States
(1984); Board Certified,
Criminal Law, Texas Board of
Legal Specialization (1983)

APPELLANT REQUESTS ORAL ARGUMENT,
PURSUANT TO TEX.R.APP.PROC.39.7
Pursuant to Tex.R.App.Proc.38.1(a),Appellant provides
the following identity of parties and counsel:

PARTIES AND INTERESTED PERSONS

1. Michael David Ramirez, Appellant.

2. Hon. Julie Allen, State Bar No. 24055096,
Assistant District Attorney, Cameron County
Courthouse, 964 East Harrison, Brownsville,
Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL

3. Hon. Carlos Martinez, State Bar No. 24081022,
Assistant District Attorney, Cameron County
Courthouse, 964 East Harrison, Brownsville,
Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL

4. Hon. Gustavo Elizondo, State Bar No. 24086827,
Assistant District Attorney, Cameron County
Courthouse, 964 East Harrison, Brownsville,
Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL

5. Hon. Luis V. Saenz, State Bar No. 17514880,
District Attorney, District Attorney, Cameron
County Courthouse, 964 East Harrison,
Brownsville, Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL AND ON APPEAL

6. Hon. Jennifer Marie Avendano, State Bar No.
24052304, District Attorney, District Attorney,
Cameron County Courthouse, 964 East Harrison,
Brownsville, Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY ON APPEAL

7. Hon. Alfredo Padilla, State Bar No. 15404600,
Law Offices of Alfredo Padilla, 777 East
Harrison St., 2nd Floor, Brownsville, Texas
78520, Phone (956) 544-7100

INITIAL BRIEF - 2
 DEFENSE ATTORNEY AT TRIAL

8. HON. LARRY WARNER, State Bar No. 20871500, Law
Office of Larry Warner, 3109 Banyan Circle,
Harlingen, TX 78550. Phone (956) 230-0361.
DEFENSE ATTORNEY ON APPEAL

INITIAL BRIEF - 3
Pursuant to Tex.R.App.Proc.38.1(b,Appellant provides
the following table of contents:

TABLE OF CONTENTS

PAGE
IDENTITY OF PARTIES.................................2-3

TABLE OF CONTENTS...................................4-6

TABLE OF AUTHORITIES................................7-9

STATEMENT OF CASE.................................10-11

ISSUES PRESENTED..................................12-14

1. Did egregious harm result from the following
error in the instructions to the jury at
guilt/innocence?

EGREGIOUS HARM IN JURY INSTRUCTIONS?

In order to return a verdict, each verdict
(sic) must agree thereto, but jurors have
a duty to consult with one another and to
deliberate with a view to reaching an
agreement if it can be done without
violence to individual judgment. Each
juror must decide the case for himself but
only after an impartial consideration of
the evidence with his fellow jurors. (RR 7
17)

2. Did reversible error result from the Trial
Judge’s submitting theft as a lesser included
offense of robbery over defense’s timely and
specific objections? (RR 7 11/5)

3. Did Egregious harm result from failure to
instruct jury on what to do if they find that
he is either guilty of robbery or of theft, but

INITIAL BRIEF - 4
 they are not sure which, then find him guilty
of theft? (RR 7 16)

4. Is the following closing argument of the
prosecutor one of “community expectations”?

“So what do we have to do now? You’ve got
to send a message to the community that if
you go into our property, our gated
property -- Mr. Gaubatz told you it was
closed -- if you go into our property, you
disregard any sort of right for the
victim.” (RR 7 48)

5. Did the following argument asking the jurors to
take the place of the complaining witness
deprive the defendant of a fair trial?
U.S.CONST.amend.VI;TEX.CONST.art.I,sec.10

“Wouldn’t you be in fear at 3:00 in the
morning? The dog is barking, he gets up,
he’s scared. And what happened then? He
sees somebody there. He sees an individual
going onto his property. Think about how
traumatic that was. Think about how
traumatic that could have been for all the
other victims that raised their hands
during voir dire.” (RR 7 48)

6. Was the following harmless error beyond a
reasonable doubt?

The prosecutor asked the jury to imagine
what would have happened if the
complaining witness had not simply stopped
in his tracks instead of pursuing the
defendant. (RR 7 51/18) Defense counsel
objected that the argument was outside the
record. (RR 7 51/21) The judge overruled
the objection. (RR 7 52/1) The prosecutor

INITIAL BRIEF - 5
 continued to ask the jury to imagine what
might have happened. (RR 7 51-52)

7. Was the trial court’s bringing back the jury to
the courtroom and responding orally, rather
than in writing, to their request for evidence
fundamental error? TEX.CODE CRIM.P.art.36.27
Did counsel’s inquiry constitute an objection?
Was any error harmless beyond a reasonable
doubt?

STATEMENT OF FACTS................................15-17

SUMMARY OF ARGUMENT...............................18-23

ARGUMENT..........................................24-38

CONCLUSION AND REQUEST FOR RELIEF....................39

CERTIFICATE OF SERVICE...............................40

CERTIFICATE OF COMPLIANCE............................40

INITIAL BRIEF - 6
Pursuant to Tex.R.App.Proc.38.1(c),Appellant provides
the following index of authorities arranged
alphabetically and indicating the pages of the brief
where the authorities are cited:

INDEX OF AUTHORITIES
CASES PAGES
Brown v. Board of Education of Topeka, Kansas, 347 U.S.
483 (1954) . . . . . . . . . . . . . . . . . . . . 26
The Court of Criminal Appeals adopted and rejected
factual sufficiency review of the evidence.
Brooks v. State,323S.W.3d893(Tex.Crim.App.2010) . . 26
The Court of Criminal Appeals changed its mind,
twice, in adopting and then, twenty years later,
rejecting factual sufficiency review of the
evidence
Chandler v. State,689 S.W.332,334hn4(Tex.App.–Fort
Worth1985,pet.ref’d) . . . . . . . . . . . . . . . 33
“It is improper in argument for a prosecutor to ask
members of the jury to place themselves in the
shoes of the victim."
Cosio v. State,353 S.W.3d766(Tex.Crim.App.2011) . 24,25
Failing to instruct the jury that they must return
a unanimous verdict is fundamental error.
Day v. State,No. 2-06-005-CR(Tex.App.–Fort Worth May
17, 2007) 2007 WL1441078 at*2fn7 . . . . . . . . . 24
“Jury verdicts in criminal cases must be
unanimous.”
Francis v. State, 36 S.W.3d 121, 126 (Tex.Crim.App.
2000) . . . . . . . . . . . . . . . . . . . . . . . 24
“Jury verdicts in criminal cases must be
unanimous.”
Fuentes v. State, 991S.W.2d267, 274hn16(Tex.Crim.App.
1999) . . . . . . . . . . . . . . . . . . . . . . 28,29
“If you believe from the evidence beyond a
reasonable doubt that the defendant is guilty of
either capital murder or aggravated robbery, but
you have a reasonable doubt as to which of said
offenses he is guilty, then you must resolve that

INITIAL BRIEF - 7
 doubt in the defendant's favor and find him guilty
of the lesser offense of aggravated robbery.
In re Committment of Hill,334 S.W.3d236(Tex.Sup.2011)
. . . . . . . . . . . . . . . . . . . . . . . . . 35,36
A party preserved error by asking a specific and
proper question, stating the basis on which it
sought to ask that question, and obtaining an
adverse ruling from the trial court.
In re Winship,397U.S.358(1958) . . . . . . . . . . 29
Giving instruction on giving the defendant the
benefit of the doubt if the jury was unsure of
which offense he was guilty, implicates his right
to proof beyond a reasonable doubt.
Lawrence v. State,240 S.W.3d 912,917 hn12 fn24(Tex.
Crim.App.2007) . . . . . . . . . . . . . . . . . 32,33
“Numerous decisions of other appellate courts,
including Texas courts of appeals and courts of
other jurisdictions, are in accord with our
holdings....”
Ngo v.State,175 S.W.3d 738(Tex.Crim.App.En Banc 2005)
. . . . . . . . . . . . . . . . . . . . . . . . . 24,25
Failing to instruct the jury that they must return
a unanimous verdict is fundamental error.
People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50, 872
P.2d 591, 598–99 (1994) . . . . . . . . . . . . . . 33
Texas appellate courts have relied on decisions of
California courts.
People v. Vance, 116 Cal.Rptr.3d 98,102hn1(2010) . 33
“We conclude that the prosecutor made a sustained
Golden Rule closing argument so blatant that it
alone requires reversal.”
Plessy v. Ferguson,163 U.S.537(1896) . . . . . . 25,26
Counsel may advocate for a position taken by a
minority of Judges.
Rushing v. State,50 S.W.3d 715,742hn42(Tex.App.–Waco
2001,pet.ref’d) . . . . . . . . . . . . . . . . . 29,30
“Anything more than a scintilla of evidence is
sufficient to entitle a defendant to a lesser
charge.”
Sanders v. State,664S.W.2d705,710(Tex.Crim.App.1982)

INITIAL BRIEF - 8
. . . . . . . . . . . . . . . . . . . . . . . . . 25,26
An offense that must be submitted as lesser
included if requested by the accused, may not be
submitted at behest of the State over a defense
objection.
Thomas v. State, 578 S.W.2d 691,695(Tex.Crim.App.1979)
. . . . . . . . . . . . . . . . . . . . . . . . . 33,34
There was an instruction to disregard in Ramirez.
It was ineffective to cure the harm done.

CONSTITUTIONS & CODES:
TEX.CODE CRIM.P.art.36.27 . . . 6,14,17,22,24,29,35,37
TEX.CONST.art.I,sec.10 . . . . . . . . . 5,13,16,21,30
Tex.Const.art.V,§13 . . . . . . . . . . . . . . . . 24
U.S.CONST.amend.VI . . . . . . . . . . . 5,13,16,21,30

OTHER:
Criminal Law News November 1, 2010 27 No. 22 West's
Criminal Law News 29 . . . . . . . . . . . . . . 31,32

INITIAL BRIEF - 9
Pursuant to Tex.R.App.P.38.1(a), Appellant provides the
following statement of the case, stating concisely the
nature of the case, the course of the proceedings, and
the trial court's disposition of the case:

STATEMENT OF THE CASE

The defendant was charged by indictment with

robbery.(CR4;42)

He pleaded not guilty and tried the case to the

jury.(CR42)

The defendant rested without presenting any

evidence; the defendant did not testify.

“MR. PADILLA: We rest, Your Honor.”

(RRvol.7,p.4,line11) (subsequently RR 4,7/11)

The jury found him guilty of robbery.(CR42)

He had elected to have the judge impose

punishment.(CR42)

The judge imposed a sentence of six years’

imprisonment, no probation.(CR42)

The judge held a hearing on motions to revoke prior

probations.

“Plea of Not True on MTR's 32 9
13 Defendant sentenced in 2013-DCR-2246 33 9
14 Defendant Sentenced on MTR's 34 9" (RR 9 3)

INITIAL BRIEF - 10
 The judge plainly considered the evidence at the

jury trial in determining the motions to revoke. He

revoked the two prior probations, sentenced the

defendant to six years confinement on each of the two

prior probations, and ran the two sixes on the

probation revocations concurrently with the six for the

weedeater robbery.

“I am to going find the
22 allegations in the Motions to Revoke to be
true, and find
23 you guilty of the offenses stated therein,
and I'm going
24 to sentence you to six years TDC in each of
those cases,
25 but it is to run concurrent with the 2013
case.” (RR9 34/21-25)

Defendant gave timely notice of appeal to this
Court of Appeals.(CR 46)

INITIAL BRIEF - 11
Pursuant to Tex.R.App.Proc.38.1(e), Appellant presents
this statement of issues presented:

ISSUES PRESENTED

1. Did egregious harm result from the following
error in the instructions to the jury at
guilt/innocence?

EGREGIOUS HARM IN JURY INSTRUCTIONS?

In order to return a verdict, each verdict (sic)

must agree thereto, but jurors have a duty to consult

with one another and to deliberate with a view to

reaching an agreement if it can be done without

violence to individual judgment. Each juror must decide

the case for himself but only after an impartial

consideration of the evidence with his fellow jurors.

(RR 7 17)

2. Did reversible error result from the Trial
Judge’s submitting theft as a lesser included
offense of robbery over defense’s timely and
specific objections? RR7 11/5

3. Did Egregious harm result from failure to
instruct jury on what to do if they find that
he is either guilty of robbery or of theft, but
they are not sure which, then find him guilty
of theft? RR 7 16

4. Is the following closing argument of the
prosecutor one of “community expectations”?

INITIAL BRIEF - 12
 “So what do we have to do now? You’ve got
to send a message to the community that if
you go into our property, our gated
property -- Mr. Gaubatz told you it was
closed -- if you go into our property, you
disregard any sort of right for the
victim.” (RR 7 48)

5. Did the following argument asking the jurors to
take the place of the complaining witness
deprive the defendant of a fair trial?
U.S.CONST.amend.VI;TEX.CONST.art.I,sec.10

“Wouldn’t you be in fear at 3:00 in the
morning? The dog is barking, he gets up,
he’s scared. And what happened then? He
sees somebody there. He sees an individual
going onto his property. Think about how
traumatic that was. Think about how
traumatic that could have been for all the
other victims that raised their hands
during voir dire.” (RR 7 48)

6. Was the following harmless error beyond a
reasonable doubt?

The prosecutor asked the jury to imagine what would

have happened if the complaining witness had not simply

stopped in his tracks instead of pursuing the

defendant. (RR 7 51/18) Defense counsel objected that

the argument was outside the record. (RR 7 51/21) The

judge overruled the objection. (RR 7 52/1) The

INITIAL BRIEF - 13
prosecutor continued to ask the jury to imagine what

might have happened. (RR 7 51-52)

7. Was the trial court’s bringing back the jury to
the courtroom and responding orally, rather
than in writing, to their request for evidence
fundamental error? TEX.CODE CRIM.P.art.36.27
Did counsel’s inquiry constitute an objection?
Was any error harmless beyond a reasonable
doubt?

INITIAL BRIEF - 14
Pursuant to Tex.R.App.Proc.38.1(f), Appellant provides
the following statement of facts stating concisely
without argument the facts pertinent to the issues of
points presented:

STATEMENT OF FACTS

1. Did egregious harm result from the following
error in the instructions to the jury at
guilt/innocence?

EGREGIOUS HARM IN JURY INSTRUCTIONS?

In order to return a verdict, each verdict (sic)

must agree thereto, but jurors have a duty to consult

with one another and to deliberate with a view to

reaching an agreement if it can be done without

violence to individual judgment. Each juror must decide

the case for himself but only after an impartial

consideration of the evidence with his fellow jurors.

(RR 7 17)

2. Did reversible error result from the Trial
Judge’s submitting theft as a lesser included
offense of robbery over defense’s timely and
specific objections? RR7 11/5

3. Did Egregious harm result from failure to
instruct jury on what to do if they find that
he is either guilty of robbery or of theft, but
they are not sure which, then find him guilty
of theft? (RR 7 16)

INITIAL BRIEF - 15
 4. Is the following closing argument of the
prosecutor one of “community expectations”?

“So what do we have to do now? You’ve got
to send a message to the community that if
you go into our property, our gated
property -- Mr. Gaubatz told you it was
closed -- if you go into our property, you
disregard any sort of right for the
victim.” (RR 7 48)

5. Did the following argument asking the jurors to
take the place of the complaining witness
deprive the defendant of a fair trial?
U.S.CONST.amend.VI;TEX.CONST.art.I,sec.10

“Wouldn’t you be in fear at 3:00 in the
morning? The dog is barking, he gets up,
he’s scared. And what happened then? He
sees somebody there. He sees an individual
going onto his property. Think about how
traumatic that was. Think about how
traumatic that could have been for all the
other victims that raised their hands
during voir dire.” (RR 7 48)

6. Was the following harmless error beyond a
reasonable doubt?

The prosecutor asked the jury to imagine what would

have happened if the complaining witness had not simply

stopped in his tracks instead of pursuing the

defendant. (RR 7 51/18) Defense counsel objected that

the argument was outside the record. (RR 7 51/21) The

INITIAL BRIEF - 16
judge overruled the objection. (RR 7 52/1) The

prosecutor continued to ask the jury to imagine what

might have happened. (RR 7 51-52)

7. Was the trial court’s bringing back the jury to
the courtroom and responding orally, rather
than in writing, to their request for evidence
fundamental error? TEX.CODE CRIM.P.art.36.27
Did counsel’s inquiry constitute an objection?
Was any error harmless beyond a reasonable
doubt?

INITIAL BRIEF - 17
Pursuant to Tex. R. App. Proc. 38.1(g), Appellant
provides the following summary of the argument which he
hopes the Court will find to be a succinct and accurate
statement of the argument made in the body of the brief
not merely a repetition of the issues or points
presented for review:

SUMMARY OF ARGUMENT

1. Did egregious harm result from the following
error in the instructions to the jury at
guilt/innocence?

“In order to return a verdict, each verdict
(sic) must agree thereto, but jurors have a
duty to consult with one another and to
deliberate with a view to reaching an agreement
if it can be done without violence to
individual judgment. Each juror must decide the
case for himself but only after an impartial
consideration of the evidence with his fellow
jurors.” (RR 7 17)

Jury verdicts in criminal cases must be unanimous.

The Judge has a duty to instruct the jury on the law

applicable to the case. Failing to instruct the jury

that they must return a unanimous verdict is

fundamental error. The jury asked for evidence, but the

Judge could not give it to them. Their having rendered

a verdict does not make the error in the instructions

moot.

INITIAL BRIEF - 18
 2. Did reversible error result from the Trial
Judge’s submitting theft as a lesser included
offense of robbery over defense’s timely and
specific objections? (RR 7 11/5)

There was no evidence that the defendant was only

guilty of theft. That defendant was not convicted of

theft does not obviate the error in submitting theft.

The error is not harmless beyond a reasonable doubt

because submitting the theft as well as the robbery

made it more likely that the jury would convict the

defendant of robbery.

3. Did Egregious harm result from failure to
instruct jury on what to do if they find that
he is either guilty of robbery or of theft, but
they are not sure which, then find him guilty
of theft? (RR 7 16)

Failure to instruct jury on what to do if
they find that he is either guilty of
robbery or of theft, but they are not sure
which, then find him guilty of theft is
fundamental error. (RR 7 16)

The Judge has a duty to instruct the jury on the

law applicable to the case. The error is not harmless

beyond a reasonable doubt because the instructions are

fundamentally incomplete. They do not tell the jury

INITIAL BRIEF - 19
what to do if they are not sure of which offense the

defendant is guilty.

The indictment charged robbery. Theft is a lesser,

as a matter of law. The defense argued that Appellant

was only guilty of theft, that the Complaining Witness

had come up with the threats and fear statement after

the Harlingen Police did not devote any effort to theft

of a weedeater case. The defense argument was based on

the evidence that the Complaining Witness did not

maintain that he felt threatened at first, that the HPD

did nothing on the theft of the weedeater case until

the CW maintained that he felt threatened, turning

theft into robbery. The instructions as a whole submit

robbery and submit theft.

4. Is the following closing argument of the
prosecutor one of “community expectations”?

“So what do we have to do now? You’ve got
to send a message to the community that if
you go into our property, our gated
property -- Mr. Gaubatz told you it was
closed -- if you go into our property, you
disregard any sort of right for the
victim.” (RR 7 48)

INITIAL BRIEF - 20
 Saying “Send a message” is akin to “the community

expects”.

5. Did the following argument asking the jurors to
take the place of the complaining witness
deprive the defendant of a fair trial?
U.S.CONST.amend.VI;TEX.CONST.art.I,sec.10

“Wouldn’t you be in fear at 3:00 in the
morning? The dog is barking, he gets up,
he’s scared. And what happened then? He
sees somebody there. He sees an individual
going onto his property. Think about how
traumatic that was. Think about how
traumatic that could have been for all the
other victims that raised their hands
during voir dire.” (RR 7 48)

It did deprive the defendant of a fair trial. The

verdict is supposed to be based on the evidence, not on

taking the place of the victim, the complaining

witness. Asking the jurors to take the place of the

victim called for a verdict based on inflamed passions,

rather than one based on reason and the evidence.

6. Was the following harmless error beyond a
reasonable doubt?

The prosecutor asked the jury to imagine what would

have happened if the complaining witness had not simply

stopped in his tracks instead of pursuing the

INITIAL BRIEF - 21
defendant. (RR 7 51/18) Defense counsel objected that

the argument was outside the record. (RR 7 51/21) The

judge overruled the objection. (RR 7 52/1) The

prosecutor continued to ask the jury to imagine what

might have happened. (RR 7 51-52)

The argument was erroneous because it was outside

the record. It was harmful because it called upon the

jury to rely upon matters outside the record in

reaching their verdict. It was harmful because it

called upon the jury to speculate on what might have

happened instead of basing their verdict on the

evidence. It was not harmful beyond a reasonable doubt

because it called upon the jury to violate the court’s

instructions to base its verdict on the evidence. It

inflamed the passions of the jury and prompted a

verdict based on speculation and emotion rather than

reason.

7. Was the trial court’s bringing back the jury to
the courtroom and responding orally, rather than
in writing, to their request for evidence
fundamental error? TEX.CODE CRIM.P.art.36.27 Did
counsel’s inquiry constitute an objection? Was
any error harmless beyond a reasonable doubt?

INITIAL BRIEF - 22
 Counsel’s inquiry was an objection. The Court’s

action amounted to overruling the objection. The error

was fundamental because the statute requires a written

response to the jury, not an oral one. Calling the jury

into the courtroom tends to emphasize the instruction

given in the courtroom and to deëmphasize the written

instructions.

INITIAL BRIEF - 23
Pursuant to Tex. R. App. Proc. 38.1(h), Appellant
provides the following argument or the contentions made,
with appropriate citations to the authorities and to the
record:

ARGUMENT

1. Did egregious harm result from the following
error in the instructions to the jury at
guilt/innocence?

Egregious harm did result from this instruction:

“In order to return a verdict, each verdict
(sic) must agree thereto, but jurors have a duty
to consult with one another and to deliberate
with a view to reaching an agreement if it can
be done without violence to individual judgment.
Each juror must decide the case for himself but
only after an impartial consideration of the
evidence with his fellow jurors.” (RR 7 17)

“Jury verdicts in criminal cases must be unanimous.”

Day v. State,No. 2-06-005-CR(Tex.App.–Fort Worth May 17,

2007)(not selected for publication)2007WL1441078at*2fn7

See: TEX.CONST.art.V,§13; Francis v. State, 36 S.W.3d

121, 126 (Tex.Crim.App.2000). The Judge has a duty to

instruct the jury on the law applicable to the case.

TEX.CODE CRIM.P.art.36.14 Failing to instruct the jury

that they must return a unanimous verdict is fundamental

INITIAL BRIEF - 24
error. Ngo v.State,175 S.W.3d 738(Tex.Crim.App.En Banc

2005) Cosio v. State,353 S.W.3d766(Tex.Crim.App.2011)

2. Did reversible error result from the Trial
Judge’s submitting theft as a lesser included
offense of robbery over defense’s timely and
specific objections? RR7 11/5

There was no evidence that the defendant was only

guilty of theft. That defendant was not convicted of

theft does not obviate the error in submitting theft. The

error is not harmless beyond a reasonable doubt because

submitting the theft as well as the robbery made it more

likely that the jury would convict the defendant of

robbery.

Three Judges of the Court of Criminal Appeals of

Texas noted that the status of the law was: “an offense

that must be submitted as lesser included if requested by

the accused, may not be submitted at behest of the State

over a defense objection!” Sanders v.

State,664S.W.2d705,710(Tex.Crim.App.1982)(Clinton,J.dis

sent) Counsel may advocate for a position taken by a

minority of Judges. That sort of advocacy is what

INITIAL BRIEF - 25
happened to Plessy v. Ferguson,163 U.S.537(1896) when

Brown v. Board of Education of Topeka, Kansas,

347U.S.483(1954) was argued, successfully. That is what

happened when the Court of Criminal Appeals changed its

mind, twice, in adopting and then, twenty years later,

rejecting factual sufficiency review of the evidence.

Brooks v. State,323S.W.3d893(Tex.Crim.App.2010)

The sequence in Sanders is what happened here. The

defendant was indicted for robbery. The state wanted to

submit theft as a lesser. The defendant objected, the

Trial Court overruled the objection. (RR 7 11/5)

Harm resulted. Theft was not mentioned in the

indictment. Of course it is true that robbery is assault

plus theft. But there was no evidence that the defendant,

if guilty of anything, was only guilty of misdemeanor

theft. The jurors must have thought that since there were

two charges, robbery and theft, and theft was not even

mentioned in the indictment, then he must be guilty of

one or the other.

INITIAL BRIEF - 26
 The Court of Appeals should find error, find that

harm did result, and find that the error was not harmless

beyond a reasonable doubt.

3. Did Egregious harm result from failure to
instruct jury on what to do if they find that he
is either guilty of robbery or of theft, but
they are not sure which, then find him guilty of
theft? (RR 7 16)

Failure to instruct jury on what to do if they find

that he is either guilty of robbery or of theft, but they

are not sure which, then find him guilty of theft is

fundamental error. (RR 7 16)

The Judge has a duty to instruct the jury on the law

applicable to the case. The error is not harmless beyond

a reasonable doubt because the instructions are

fundamentally incomplete. They do not tell the jury what

to do if they are not sure of which offense the defendant

is guilty.

The indictment charged robbery. Theft is a lesser, as

a matter of law. The defense argued that Appellant was

only guilty of theft, that the Complaining Witness had

INITIAL BRIEF - 27
come up with the threats and fear statement after the

Harlingen Police did not devote any effort to theft of a

weedeater case. The defense argument was based on the

evidence that the Complaining Witness did not maintain

that he felt threatened at first, that the HPD did

nothing on the theft of the weedeater case until the CW

maintained that he felt threatened, turning theft into

robbery. The instructions as a whole submit robbery and

submit theft.

“It wasn’t only until they went in and the
Judge gave them his advice that he thought they
should treat it as a robbery, then they decided
at that point to make it -- to make it into a
robbery but originally it was a theft. And what
did the Harlingen Police Department do in
investigating this case? Absolutely nothing.
Absolutely nothing.” (RR 7 34/1-7)

Typically, the trial judge gives an instruction like

this one when there are two offenses of which the

defendant might be convicted:

“If you believe from the evidence beyond a
reasonable doubt that the defendant is guilty of
either capital murder or aggravated robbery, but
you have a reasonable doubt as to which of said
offenses he is guilty, then you must resolve
that doubt in the defendant's favor and find him
guilty of the lesser offense of aggravated

INITIAL BRIEF - 28
 r o b b e r y . ” F u e n t e s v .
State,991S.W.2d267,274hn16(Tex.Crim.App.1999)

Giving that instruction on giving the defendant the

benefit of the doubt if the jury were unsure of which

offense he was guilty, implicates both his right to proof

beyond a reasonable doubt, In re

Winship,397U.S.358(1958), and to have the Judge instruct

the jury on the law applicable to the case. TEX.CODE

CRIM.P.art.36.14

Harm resulted, since theft of an $80 weedeater is “a

class B misdemeanor”,TEX.PEN.CODE §31.03(e)(2)(A)(i),

while robbery without a deadly weapon is a “felony of the

second degree” TEX.PEN.CODE.§29.03(b)

It is reversible error not to give such an

instruction if there is some evidence that the defendant

is guilty of the lesser-included offense:

“If there is some evidence that if a defendant
is guilty, he is guilty only of a
lesser-included offense, then the defendant is
entitled to have the jury instructed that it may
find the defendant guilty only of the
lesser-included offense. Wesbrook v. State, 29
S.W.3d 103, 113 (Tex.Crim.App.2000), cert.
denied, 532 U.S. 944, 121 S.Ct. 1407, 149

INITIAL BRIEF - 29
 L.Ed.2d 349 (2001). “The evidence must establish
the lesser-included offense as a valid rational
alternative to the charged offense.” Id. (citing
Rousseau v. State, 855 S.W.2d 666, 672–73
(Tex.Crim.App.1993)). “Anything more than a
scintilla of evidence is sufficient to entitle a
defendant to a lesser charge.” Bignall v. State,
887 S.W.2d 21, 23 (Tex.Crim.App.1994).” Rushing
v. State,50 S.W.3d 715,742hn42(Tex.App.–Waco
2001,pet.ref’d) [internal quotations unchanged]

The Court of Appeals should find egregious harm,

should find that the error is not harmless beyond a

reasonable doubt, and should require a new trial.

5. Did the following argument asking the jurors to
take the place of the complaining witness
deprive the defendant of a fair trial?
U.S.CONST.amend.VI;TEX.CONST.art.I,sec.10

“Wouldn’t you be in fear at 3:00 in the
morning? The dog is barking, he gets up,
he’s scared. And what happened then? He sees
somebody there. He sees an individual going
onto his property. Think about how traumatic
that was. Think about how traumatic that
could have been for all the other victims
that raised their hands during voir dire.”
(RR 7 48)

It did deprive the defendant of a fair trial. The

verdict is supposed to be based on the evidence, not on

taking the place of the victim, the complaining witness.

INITIAL BRIEF - 30
Asking the jurors to take the place of the victim called

for a verdict based on inflamed passions, rather than one

based on reason and the evidence.

The prosecutor’s “golden rule” argument, asking the

jury to put itself in the victim’s shoes” required

reversal of a murder conviction. Criminal Law News

November 1, 2010 27 No. 22 West's Criminal Law News 29

That is precisely what the prosecutor’s argument did at

the weedeater trial.

6. Was the following harmless error beyond a
reasonable doubt?

The prosecutor asked the jury to imagine what would

have happened if the complaining witness had not simply

stopped in his tracks instead of pursuing the defendant.

(RR 7 51/18) Defense counsel objected that the argument

was outside the record. (RR 7 51/21) The judge overruled

the objection. (RR 7 52/1) The prosecutor continued to

ask the jury to imagine what might have happened. (RR 7

51-52)

INITIAL BRIEF - 31
 The argument was erroneous because it was indeed

outside the record. It was harmful because it called upon

the jury to rely upon matters outside the record in

reaching their verdict. It was harmful because it called

upon the jury to speculate on what might have happened

instead of basing their verdict on the evidence. It was

not harmful beyond a reasonable doubt because it called

upon the jury to violate the court’s instructions to base

its verdict on the evidence. It inflamed the passions of

the jury and prompted a verdict based on speculation and

emotion rather than reason.

In a trial on the issue of the defendant's guilt of

murder, the prosecutor committed misconduct by making an

improper “Golden Rule” argument inviting the jury to put

itself in the victim's position. Criminal Law News

November 1, 2010 27 No. 22 West's Criminal Law News 29

The Court of Appeals may consider the opinions and

decisions of Courts of other jurisdictions. Texas

appellate Courts have relied on opinions of California

appellate courts before. The Court of Criminal Appeals

may rely upon opinions of other jurisdictions. “Numerous

INITIAL BRIEF - 32
decisions of other appellate courts, including Texas

courts of appeals and courts of other jurisdictions, are

in accord with our holdings....”Lawrence v. State,240

S.W.3d 912,917 hn12 fn24(Tex.Crim.App.2007) Texas

appellate courts have relied on decisions of California

courts: People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d

50, 872 P.2d 591, 598–99 (1994)

“We conclude that the prosecutor made a
sustained Golden Rule closing argument so
blatant that it alone requires reversal.” People
v. Vance, 116 Cal.Rptr.3d 98,102hn1(2010)

Texas’ Second Court of Appeals did note that a

“Golden Rule” argument is improper.

“It is improper in argument for a prosecutor to
ask members of the jury to place themselves in
the shoes of the victim. *335 United States v.
Cook, 592 F.2d 877 (5th Cir.1979)”
- C h a n d l e r v . S t a t e , 6 8 9
S . W . 3 3 2 , 3 3 4 h n 4 ( T e x . A p p . – F o r t
Worth1985,pet.ref’d)

There was an instruction to disregard in Ramirez. It

was ineffective to cure the harm done. Thomas v. State,

578 S.W.2d 691,695(Tex.Crim.App.1979). An instruction to

disregard is ineffective when “the remarks are so

inflammatory that their prejudicial effect cannot

INITIAL BRIEF - 33
reasonably be removed by such an admonition.” Thomas v.

State,578 S.W.2d 691,695(Tex.Crim.App.1979).

The instruction to disregard was ineffective because

of the prosecutor’s portrayal of the complaining witness

as a poor old man who was assaulted in his home by one

who even struck the old man’s dog, and further that the

old man could not get any help from the police.

“Mr. Ramirez escalates the situation. From just
the taking of a weedeater and a brief
confrontation with Mr. Gaubatz, he escalates it
to a threat. He puts his hand behind his back,
and again pardon me for my language but this is
what was said. He puts his hand behind his back
and he looks at Mr. Gaubatz directly in the eyes
and he says, “It’s not worth it, I'll fuck you
up,” intending to get him to back off so that he
can take off with that weedeater. He didn’t want
to drop it. He’d been asked to put it down, to
leave it. He wasn’t going to. He was trying to
get out of there with that weedeater and he was
trying to scare Mr. Gaubatz into stopping, to
not coming out. You heard, Mr. Gaubatz told us
that his dog got a hold of Mr. Ramirez. Mr.
Ramirez hit his dog with the weedeater in his
hands, got into his truck, into his white Jeep
Liberty, and drove off.” (RR 7 24)

So, when the prosecutor asked the jurors to take the

place of the complaining witness, a person in that

situation would be faced with one who had been threatened

INITIAL BRIEF - 34
verbally and who was confronted by another whose

additional threat was veiled...a hand behind his back.

The Judge’s instruction to disregard could not have cured

the effect of asking a jury to imagine being accosted by

a robber.

The Court of Appeals should require a new trial.

7. Was the trial court’s bringing back the jury to
the courtroom and responding orally, rather than
in writing, to their request for evidence
fundamental error? TEX.CODE CRIM.P.art.36.27 Did
counsel’s inquiry constitute an objection? Was
any error harmless beyond a reasonable doubt?

Counsel’s inquiry was an objection. The Court’s

action amounted to overruling the objection. The error

was fundamental because the statute requires a written

response to the jury, not an oral one. Calling the jury

into the courtroom tends to emphasize the instruction

given in the courtroom and to deëmphasize the written

instructions.

Counsel’s inquiry was an objection.

“A party preserves error by a timely request
that makes clear—by words or context—the grounds
for the request and by obtaining a ruling on
that request, whether express or implicit. TEX.
R. APP. P. 33.1. Thus, in Babcock, we held that

INITIAL BRIEF - 35
 a party preserved error by asking a specific and
proper question, stating the basis on which it
sought to ask that question, and obtaining an
adverse ruling from the trial court. 767 S.W.2d
at 708.” In re Committment of Hill,334
S.W.3d236(Tex.Sup.2011)

The interaction between counsel and the Court in

Ramirez was more subtle, but the result was the same. It

was obvious that Counsel did not agree with bringing the

jury back into the courtroom to answer their note.

“The Court has received a note through the
bailiff obviously at 11:07 a.m. It reads as
follows,
“Need copy of police report to read, need
copy of victim affidavit to read,”
and it’s signed by the presiding juror. (RR 7
54/1-5)
***

Defense counsel at trial made it clear that he

objected to bringing the jury back into the courtroom to

be instructed instead of giving them a written

instruction.

“THE COURT: I'll tell you what, why don’t we bring
them -- let’s start making arrangements so we can
bring them in.
MR. PADILLA: For what purpose, Judge? You're going to
give them a written answer and response?
That’ll probably be faster than bringing them in,
Judge.

INITIAL BRIEF - 36
 THE COURT: I’m thinking now the verbal admonishment
will be faster, but --
MR. PADILLA: Well, there is a record, but -- you
know, what happens in the past, Judge, and I know
this Court has a lot of experience in trying cases,
but they’ll start nitpicking different items, you
know, so --
THE COURT: That’s fine. We’ll just --
MR. PADILLA: They won’t ask for any other evidence
that was not introduced once you give them that
written instruction.
THE COURT: We’ll just -- all right. Let’s bring them
in. (Jury enters courtroom.)” (RR 7 55/4-23)

The trial court plainly overruled the objection that

the instruction be in writing by saying:

“THE COURT: We’ll just -- all right. Let’s
bring them in. (Jury enters courtroom.)” (RR 7
55/4-23)

Defense counsel at trial pointed out the harm of not

complying with the plain words of the statute and the

positive effects of complying with the Rule.

“but they’ll start nitpicking different items,
you know, so --
***
MR. PADILLA: They won’t ask for any other
evidence that was not introduced once you give
them that written instruction.” (RR 7 55/4-23)

The Court of Appeals should not be seduced by the

Sophist’s characterization of TEX.CODE CRIM.P.art.36.27

INITIAL BRIEF - 37
as “not a mandatory statute.” Why bother with statutes,

then? Shall the Legislature now designate each statute

as “mandatory”, just as it declares every enactment an

emergency? This is the “children’s law” one speaking

from the Judgment Seat rejected. Julius Caesar,

INITIAL BRIEF - 38
Pursuant to Tex. R. App. Proc. 38.1(I), Appellant
provides a short conclusion that clearly states the
nature of the relief sought:

CONCLUSION AND REQUEST FOR RELIEF

For the failure of proof, the Court of Appeals should

acquit the Appellant.

Failing an acquittal, the Court of Appeals should

remand for a new trial.

RESPECTFULLY SUBMITTED
February 23, 2015.

/s/Larry Warner
Larry Warner,
Counsel for Michael Ramirez
COA No.13-14-00171-CR
3109 Banyan Circle
Harlingen, Tx 78550 7443
Phone (956) 454 4994
Tex.State Bar# 20871500
Usdc,Stdx# 1230
office@larrywarner.com
website: larrywarner.com
Member, Bar of the Supreme
Court of the United States
(1984); Board Certified,
Criminal Law, Texas Board of
Legal Specialization (1983)

INITIAL BRIEF - 39
 CERTIFICATE OF SERVICE

I certify that I had delivered a copy of the

foregoing APPELLANT’S INITIAL BRIEF via fax to the

following counsel of record on this 23RD day of February,

2015 to the District Attorney’s office at 964 E. Harrison

Street, 2nd Floor, Brownsville, Texas 78520. Fax: 1-956-

544-0869.

Respectfully Submitted,
February 23, 2015.

/s/Larry Warner
Larry Warner,
Counsel for Appellant

Certificate Of Compliance
I certify that this brief complies with
TEX.R.APP.9(i) (2)(B) and was prepared using WordPerfect
X3, font in Courier New 14pt. And contains 4254 words as
counted by the WordCount Tool of this software program.

Respectfully Submitted,
February 23, 2015.

/s/Larry Warner
Larry Warner,
Counsel for Appellant

INITIAL BRIEF - 40