                            NUMBER 13-14-00199-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ANDY TORRES RAMOS,                                                         Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Garza and Longoria
                 Memorandum Opinion by Justice Garza

      Appellant, Andy Torres Ramos, was convicted of aggravated assault, a second-

degree felony, and was sentenced to three years’ imprisonment. See TEX. PENAL CODE

ANN. § 22.02 (West, Westlaw through Ch. 46, 2015 R.S.). The prison sentence was

suspended and Ramos was placed on community supervision for three years. By one

issue on appeal, he contends the evidence was insufficient to support his conviction. We
affirm.

                                        I. BACKGROUND

          Jay Hinojosa testified that he was a San Patricio County Sheriff’s deputy on July

14, 2013. On that date, he was dispatched to a call reporting a vehicle assault on County

Road 61 near Sinton. When he arrived, the complainant, Victoria Martinez, appeared

injured and in pain. Hinojosa took photographs of Martinez’s injuries. The photographs,

which were entered into evidence, depict minor bruises and abrasions to Martinez’s hand,

leg, neck, and torso. Martinez was taken to a hospital and was treated and released the

same day.

          On cross-examination, in response to a question by defense counsel, Hinojosa

stated that Martinez reported that a car “[r]an over the lower portion of her body.” He

agreed with defense counsel that Martinez said “that the tire was on her back as he drove

away.” He did not, however, take photographs of Martinez’s back.

          Hinojosa testified that he was later provided with Martinez’s purse, which was

recovered from the car that allegedly ran over her. The purse contained, among other

things, what Hinojosa believed to be hydrocodone pills. Hinojosa stated that, according

to Martinez, the pills belonged to her and were for “an old prescription,” but he did not

arrest Martinez because “[t]he purse wasn’t in her possession, the pills were not in her

possession at the time.”       Hinojosa conceded that a person could possibly become

“intoxicated” by using hydrocodone.

          Martinez testified that she and Ramos were in a relationship but that they broke up

in April. Ramos texted her that he missed her, so she agreed that he could pick her up

in his white Ford Mustang and take her to Corpus Christi. They then returned to Sinton.



                                               2
Martinez testified:

        I was about to get out of the car and he wanted to have sex with me. I told
        him no. He said he was claiming that I was seeing somebody else and
        that’s why I didn’t want to. From then that’s when it started. As soon as I
        was about to get out of the car, he took off . . . . I was unable to get out of
        car. Just—as soon as I was attempting to get out of the car he just floored
        it, just pushed the gas and took off around the block. . . .

        I wanted to get out. He was driving very reckless and fast. I was scared. I
        didn’t want to be in the car with him. I was going to—any chance that I got
        that he was going to slow down, I wanted to get out of the car. . . .

        So we go over the railroad tracks, we take a left. You go left and it curves
        but he makes a u-turn. He doesn’t go all the way down the road. He makes
        a u-turn. I almost fell out of the car but he kind of pulls me back because
        my door was open. At that time he starts slowing down and he’s trying to
        get my purse. . . .

        Um, at that point he tried—he slowed down and he's trying to get the purse
        and we’re still arguing and I want to get out of the car and I’m yelling at the
        top of my lungs. My door is slightly open because I’m holding it with my
        feet. So he finally gets a hold of just the purse strap because it’s still around
        my shoulder and he just starts pulling it towards him and that’s when it was
        choking me. . . . I’m scared for my life. I’m trying to scream but I can’t
        because I’m being choked, I can’t breathe. . . .

        At that point, when I told him that I couldn't breathe he stopped, he let go
        and then he took off. Just drove again, pushed the pedal. . . .

        We’re driving, he stops the car, he gets a hold of my purse . . . [f]rom behind
        me. From that point, when he has the car stopped I had my door open still
        from with my feet pushing it, so when he stops the car, I’m getting out of the
        car sitting with my feet out. He gets a hold of the purse—as soon as he
        gets a hold of the purse, he pushes me. I felt his hand, I end up on the
        floor. . . [o]utside the car. On the road. Half the road where my head is
        where the grass starts. I’m under the car. I could feel the heat of the car. I
        felt the back tire, the driver’s side back tire around my feet and in a split
        second . . . [t]he tire went over my back.

Martinez stated that she was in “excruciating pain” and “couldn’t really believe what

happened.”1 She denied that the hydrocodone pills found in her purse belonged to her,


        1  Martinez stated that a female bystander came to her after the incident to ask if she was okay, but
the trial court sustained defense counsel’s hearsay objection to that testimony. Later, referring to the
bystander, Martinez stated: “I was shocked, I didn’t think the car had went over me. She assured me it

                                                     3
but she admitted having a “dependency” on hydrocodone for “about a year or two” several

years ago when she was prescribed the medication for a broken hand and “busted head.”

       On cross-examination, when asked “how did you exit the vehicle,” Martinez replied:

“When he had stopped, after he had pulled my purse from behind me, he pushed me.”

She clarified that the car ran over her back and her feet. She conceded that she suffered

no deep lacerations, broken bones, ruptured organs, internal bleeding, or severe bruising

as a result of the incident. She also conceded that she was wearing glasses at the time

of the incident but that the glasses were not damaged. Martinez denied that she and

Ramos were arguing about the hydrocodone pills, and she denied that Ramos was

actually trying to restrain her from jumping out of the car.

       Three eyewitnesses testified that they observed a young woman in a white Ford

Mustang, with the door open, screaming. They later saw the woman outside the car on

the ground. They did not see the car strike anyone.

       Ramos called two witnesses, his mother and sister-in-law, who each testified that

Martinez had a hydrocodone problem. They did not see the incident in question. Ramos

himself testified that he got into an argument with Martinez over the hydrocodone pills.

He stated that “[s]he kept trying to exit the vehicle.” When asked why he did not want

Martinez to leave the car, Ramos stated:

       I felt if she would have gotten away and I would have dropped her off at her
       house, she would have abused her prescription pills and probably would’ve
       caused bodily harm to herself. She was really depressed coming from a—
       she had just recently had an abortion—not an abortion—it was a
       miscarriage and I believe that’s what caused the root of everything. . . .

       I was trying to hold on with one hand and, you know, keep her from


did.” However, defense counsel also objected to this statement on hearsay grounds and the trial court
sustained the objection and struck the testimony from the record.

                                                 4
       grabbing, from falling out of the car with the other hand.

Ramos denied pushing Martinez out of the car or running over her.

       The jury convicted Ramos of aggravated assault and sentenced him to three years’

imprisonment. The trial court suspended the sentence and placed Ramos on community

supervision. Ramos was also ordered to pay $14,450 in restitution to Martinez. 2 This

appeal followed.

                                            II. DISCUSSION

A.     Standard of Review and Applicable Law

       In reviewing the sufficiency of evidence supporting a conviction, we consider the

evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports

conflicting inferences, we must presume that the trier of fact resolved any such conflicts

in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326

S.W.3d 195, 200 (Tex. Crim. App. 2010).

       Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.


       2   Ramos does not challenge the assessment of restitution on appeal.

                                                    5
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. Id. A hypothetically correct jury charge in this case would

state that Ramos is guilty if he intentionally, knowingly, or recklessly caused bodily injury

to Martinez by striking her with a vehicle.3 See TEX. PENAL CODE ANN. § 22.02. “Bodily

injury” means “physical pain, illness, or any impairment of physical condition.”                       Id.

§ 1.07(a)(8) (West, Westlaw through Ch. 46, 2015 C.S.). A person acts intentionally with

respect to the result of his conduct when it is his conscious objective or desire to cause

the result. Id. § 6.03(a) (West, Westlaw through Ch. 46, 2015 R.S.). A person acts

knowingly with respect to the result of his conduct when he is aware that his conduct is

reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with respect

to the result of his conduct when he is aware of but consciously disregards a substantial

and unjustifiable risk that the result will occur. Id. § 6.03(c). The risk must be of such a

nature and degree that its disregard constitutes a gross deviation from the standard of

care that an ordinary person would exercise under all the circumstances as viewed from

the actor’s standpoint. Id.

B.      Analysis

        In arguing that the evidence was insufficient to support his conviction, Ramos

makes the following points on appeal: (1) Martinez testified that Ramos ran over her with



        3  Ramos does not dispute that a vehicle is a deadly weapon as defined by statute. See TEX. PENAL
CODE ANN. § 1.07(a)(17) (West, Westlaw through Ch. 46, 2015 R.S.) (“‘Deadly weapon’ means: (A) a
firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.”).

                                                    6
his car but she suffered no broken bones or other serious injuries; (2) other than Martinez,

no one saw the car run over her; (3) no one saw Ramos attempt to run her over; (4) there

was evidence that Ramos was trying to prevent Martinez from throwing herself out of the

car; (5) Martinez admitted being dependent on hydrocodone in the past; (6) hydrocodone

was found in Martinez’s purse on the day of the incident; (7) a photograph of Martinez

entered into evidence shows that she “consumed substances which had an intoxicating

effect precipitating excessive emotional emoting during this incident”; (9) Martinez’s two

miscarriages “may have exacerbated [her] hysterical conduct”; (10) Martinez’s “history of

argumentation and debate with [Ramos]” showed that she “could direct abusive outburst

against [Ramos] due to the demands of her addiction”; (11) Martinez’s testimony was

“incredulous” and there “was sufficient evidence before [the jury] that such an event never

happened.”

        Even assuming the truth of these statements,4 we nevertheless find the evidence

sufficient to support the essential elements of the offense. Martinez testified that, shortly

after arguing with Ramos about her phone, Ramos “pushed” her out of the car and she

then “felt the back tire, the driver’s side back tire around my feet and in a split

second . . . [t]he tire went over my back.” She stated the incident left her in “excruciating

pain.” Ramos testified that the argument was about hydrocodone and that, instead of

pushing Martinez out of the car, he was trying to prevent her from exiting the car.

However, the jury is the sole judge of the credibility of witnesses and the weight to be

given the testimony, and it may choose to believe some testimony and disbelieve other


        4 We do not share Ramos’s opinion that the photograph of Martinez entered into evidence shows
that she was intoxicated. There was no testimony indicating that Martinez was intoxicated at the time of
the incident. We note that, to the extent Martinez appeared disoriented and flushed in the photograph, that
may have been because she was recently run over by a car.

                                                    7
testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Therefore,

Martinez’s testimony alone was sufficient to establish that Ramos intentionally, knowingly,

or recklessly caused her bodily injury by striking her with a vehicle. See TEX. PENAL CODE

ANN. § 22.02. Even if we were to agree with Ramos that Martinez’s testimony was

unreliable, we may not act as a “thirteenth juror” by substituting our judgment for that of

the jury. See Brooks, 323 S.W.3d at 905.

       Because the evidence was sufficient to support the verdict, we overrule Ramos’s

sole issue.

                                     III. CONCLUSION

       The trial court’s judgment is affirmed.


                                                 DORI CONTRERAS GARZA,
                                                 Justice

Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of July, 2015.




                                             8
