       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-18-00773-CR



                             Javier Morales-Ramirez, Appellant

                                                v.

                                 The State of Texas, Appellee

             FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
        NO. 16-3188-K368, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Appellant Javier Morales-Ramirez appeals from his conviction for aggravated

assault with a deadly weapon, see Tex. Penal Code § 22.02(a)(2), arguing that the evidence is

insufficient to support the verdict and that the district court abused its discretion by admitting

testimony regarding a hit-and-run automobile accident that occurred just before the collision

forming the basis of the assault offense. We will affirm the judgment of conviction.


                                       BACKGROUND

               Morales-Ramirez’s prosecution arose from a fatal automobile collision that

occurred just before 11:00 p.m. on December 2, 2016, when Morales-Ramirez’s vehicle struck

pedestrian Sean Kelley in or near a crosswalk at the intersection of Mays Street and Main Street

in Round Rock, Texas. At trial, counsel for Morales-Ramirez did not deny Morales-Ramirez

was driving the vehicle at the time of the incident. Instead, he argued that Kelley caused his own
injury by being too inebriated to walk safely and that the witnesses were all too inebriated to

accurately recall what transpired that night.

               Jurors heard testimony from individuals that had seen Morales-Ramirez shortly

before the accident, witnesses to the accident, and police officers that observed the resulting

injury. Waitress Maria Acuna testified that on the evening of the incident, she was working at a

restaurant in a shopping center less than two miles from what would become the accident site.

She said she served a table of three men that she recalls as “quite drunk”—so inebriated, in fact,

that she refused to serve them any alcohol. She remembered watching them leave around fifteen

minutes after arriving and said one of them stumbled and fell outside the door. She testified that

when police visited her a few days later, she identified a photo of Morales-Ramirez as one of the

three men.

               Valeska Reynolds was dating Morales-Ramirez at the time of the incident.

Reynolds testified that Morales-Ramirez was out drinking and was “very ugly” that afternoon

and evening. She had hoped they would go to dinner together, but he decided to stay out with

friends, instead. She recalled that by 8:00 p.m. she “gave up” trying to persuade him. Reynolds

testified that she began receiving texts between 10:00 and 10:30 from Morales-Ramirez, who had

become disoriented and did not know how to get home. Reynolds left to find him because, she

said, she feared he was “too drunk to drive.” She intercepted him in the shopping center parking

lot and attempted to retrieve the keys to Morales-Ramirez’s truck—a silver Dodge Ram—but he

was able to keep them from her. She left feeling “very mad” and “very upset” and testified that

she did not want him at her apartment that night. On her drive home, she watched as Morales-

Ramirez’s truck passed her vehicle at a high rate of speed and then raced through two red lights

in an apparent attempt to make it to Reynolds’s apartment before she did. She did not see his

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truck strike Kelley, although she saw the truck begin to fishtail after the collision. When

Morales-Ramirez arrived at Reynolds’s townhouse a few minutes after she did, Reynolds

described the truck as “destroyed.” She recalled that Morales-Ramirez was “very upset” and

kept repeating that he needed to go. She explained he took all her money, over her objections,

and was headed back to his truck when officers arrived and prevented him from leaving.

               James Carter was in the same shopping center as Morales-Ramirez and Reynolds

that night. He testified that he had driven there to use an ATM. As he was attempting to exit the

shopping center in his vehicle, he recalled that a silver truck “jumped out in front of [him]” and

“cut [him] off,” leading him to honk his horn. He testified that the other driver “hit the brakes”

and then “stopped his vehicle.” Carter recalled that he became “a little nervous” as he watched

the truck’s reverse lights illuminate and the truck “smash[] right into” Carter’s vehicle before

“peel[ing] out” of the parking lot. Carter attempted to follow the truck but became “alarmed”

when the truck began moving at speeds Carter had “never witnessed before.” He called 911,

reported the license plate number, and returned to the parking lot to make a police report.

               Detective Patrick Turck testified that he was initially dispatched to investigate

Carter’s incident but was diverted when a call came in about a nearby hit-and-run with injuries.

He recalled that he arrived to find Officer Brian Knowles already at the scene and performing

CPR on Kelley, although “it was pretty clear . . . that [Kelley] was already deceased.” Turck

remembered that Kelley had been knocked out of his shoes and one sock by the impact, which in

his experience is not uncommon “[f]or high-speed impacts.” Turck further testified that he

found five eyewitnesses in the crowd and obtained statements from four of them. He recalled

that each of these witnesses appeared to have been drinking.



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               One of the eyewitnesses Turck identified was Johanna Granados. She testified

that she and her friends had just finished dinner and drinks and were waiting to cross Mays Street

to stop by a piano bar on the opposite side. She remembered stepping into the street when the

light changed but recalled that they “all kind of stepped back at the same time” when they saw

headlights and a truck “com[ing] really quickly.” Granados then recalled hearing “a horribly

loud crash” and turning to see a body “flying through the air.” She testified that the body landed

on the opposite side of the street and “way down on Mays [Street].” She remembered that the

truck did not stop but instead “sped up” and drove away.

               Bryan Smart was in the same group with Granados that night. He testified that

when they began to cross the street, he heard a “revved up” truck coming toward them and pulled

his friends back onto the sidewalk. He noticed a man—later revealed to be Kelley—crossing the

street nearby. He then heard a “loud noise” and turned to see Kelley’s body flying down the

street. He estimated the truck was traveling 60 or 70 miles an hour at the time of the collision

with Kelley and noticed that the truck made no attempt to slow down or stop “at all.” Smart

described the intersection as well lighted and testified that it was not too dark to see that night.

               Police officer Adam Rankin reconstructed the accident for the jury. He explained

“that the pedestrian was struck by the leading edge of the vehicle lower than his center mass,

the[n] rotated around that center mass up onto the hood and then was projected off the hood,

coming to final rest” 218 feet away from the point of impact. He determined that because the

point of impact was the middle of the front of the truck, instead of on the truck’s passenger side,

Kelley had not “just stepped off the curb” but was instead walking across the street when the

truck struck him. Based on the distance, he estimated that Morales-Ramirez was traveling 54 to



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65 miles an hour at impact—up to 30 miles per hour over the posted speed limit for that stretch

of Mays Street. Yet he testified that there was “no indication” of pre- or post-collision braking.

               With respect to Kelley, the jury heard testimony that Kelley had been drinking

with a friend at a bar near the collision site, that Kelley often “drank a lot,” that he stumbled

when leaving the bar, and that post-mortem testing revealed a blood-alcohol concentration four

times the legal limit for driving. See Tex. Penal Code § 49.01(2)(B). After deliberating, the jury

returned a verdict of guilty, and the court sentenced Morales-Ramirez to 18 years of confinement

with the Texas Department of Corrections. Morales-Ramirez perfected this appeal.


                                          DISCUSSION

               Morales-Ramirez contends that the State produced insufficient evidence to prove

he caused Kelley’s bodily injury and that the district court abused its discretion in admitting

certain evidence.


Sufficiency of the Evidence

               Morales-Ramirez contends the evidence was insufficient to prove that he caused

Kelley’s injury. We measure the sufficiency of the evidence against “the elements of the offense

as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). Such a charge “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. For the aggravated assault charged here, the hypothetically correct

charge would require the jury to find that Morales-Ramirez recklessly caused bodily injury to




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Kelley and used or exhibited a deadly weapon (i.e., a motor vehicle) during the commission of

the assault. See Tex. Penal Code § 22.02(a)(2).

                 In evaluating a sufficiency challenge, we consider all 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.” Lang v. State, 561 S.W.3d 174,

179 (Tex. Crim. App. 2018). This standard requires us to presume that the jury “resolved any

conflicting inferences from the evidence in favor of the verdict” and to defer to that resolution

because “jurors are the exclusive judges of the facts, the credibility of the witnesses, and the

weight to be given to the testimony.” Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App.

2018). Our role on appeal is limited to ensuring that “the evidence presented actually supports a

conclusion that the defendant committed the crime that was charged.”             Morgan v. State,

501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (quoting Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007)).

                 Morales-Ramirez argues that Kelley was too inebriated to walk in a safe manner

and that Kelley would not have been injured if he had been sober and thus that Morales-Ramirez

did not cause Kelley’s bodily injury.      The Penal Code contemplates concurrent causation,

providing that a defendant “is criminally responsible if the result would not have occurred but for

his conduct, operating either alone or concurrently with another cause, unless the concurrent

cause was clearly sufficient to produce the result and the conduct of the [defendant] clearly

insufficient.”   See Tex. Penal Code § 6.04(a).       The jury heard evidence that Kelley was

inebriated at the time of the incident and had “stumbled” out of a bar shortly before the collision.

But the jury also heard testimony that Kelley was crossing the street on a green light—just like

the other eyewitnesses had intended to do before seeing and hearing the truck. Additional

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evidence indicated that Morales-Ramirez had been drinking heavily, was speeding down a road

crowded with pedestrians, and had deliberately “smashed into” Carter’s vehicle shortly before

striking Kelley.   Morales-Ramirez complains that every one of the eyewitnesses had been

drinking alcohol the night of the collision and cannot be expected to recall the incident

accurately. However, weighing witness credibility and resolving questions of fact lie within the

exclusive province of the jury. See Febus, 542 S.W.3d at 572. Further, given the overwhelming

evidence of Morales-Ramirez’s intoxication and the recklessness of his driving, even if the jury

believed Kelley was inebriated that night, a rational juror still could have concluded that

Morales-Ramirez was criminally responsible for the bodily injury that Kelley sustained from the

collision. See Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986) (explaining that

outside cause will excuse defendant from criminal liability only when outside cause was by itself

enough to cause result and defendant’s conduct was not by itself enough to cause result;

defendant is still criminally liable when defendant’s conduct and other cause together are

sufficient to cause harm). The evidence at trial established a “but for” causal connection

between appellant’s conduct and the resulting bodily injury to Kelley. See id. (“If concurrent

causes are present, two possible combinations exist to satisfy the “but for” requirement: (1) the

defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the

existence of a concurrent cause; or (2) the defendant’s conduct and the other cause together may

be sufficient to have caused the harm.”). The evidence is therefore sufficient to support the

verdict, and we overrule Morales-Ramirez’s issue.




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Evidentiary Challenge

               Morales-Ramirez contends the court abused its discretion by admitting evidence

of the hit-and-run collision with Carter, characterizing it as inadmissible character-conformity

evidence under Rule 404(b). We disagree. Rule 404(b) provides, “Evidence of a crime, wrong,

or other act is not admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Tex. R. Evid. 404(b)(1). As one of

our sister courts has explained, “The rule and its concept envisioned past crimes and offenses”

admitted as evidence of character. Hill v. State, 888 S.W.2d 255, 258 (Tex. App.—Beaumont

1994, no pet.) (emphasis added); see also Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim.

App. 2016) (observing that Rule 404(b) is “a rule of inclusion rather than exclusion” that

excludes only evidence of past acts used “solely for proving bad character and conduct in

conformity with that bad character”).

               Here, the State’s did not introduce a past bad act as evidence that Morales-

Ramirez acted in conformity with any character trait. Instead, the earlier collision occurred just

minutes before Morales-Ramirez struck Kelley and was part of the same driving spree that

resulted in the fatality. Thus, the evidence provided the context of the fatal collision. See Devoe

v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (“Evidence of another crime, wrong, or

act also may be admissible as same-transaction contextual evidence . . . .”); Hill, 888 S.W.2d 258

(rejecting Rule 404(b) challenge to testimony regarding “the present, dramatic, horrendous acts

by appellant” where those acts were contemporaneous with the alleged offense). In addition, the

evidence rebutted Morales-Ramirez’s defense that Kelley’s acts caused his own injury. See

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (explaining that rebuttal of

defensive theory is “one of the permissible purposes for which [relevant] evidence may be

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admitted under Rule 404(b)”). The admission of the evidence, therefore, did not violate Rule

404(b)’s prohibition on character-conformity evidence, and the district court did not abuse its

discretion in admitting that evidence. We overrule the issue.


                                        CONCLUSION

               Having overruled Morales-Ramirez’s issues on appeal, we affirm the district

court’s judgment of conviction.



                                             __________________________________________
                                             Edward Smith, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: April 29, 2020

Do Not Publish




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