                                     Fourth Court of Appeals
                                             San Antonio, Texas
                                        MEMORANDUM OPINION

                                                 No. 04-17-00669-CR

                                             Michael Anthony RAMOS,
                                                     Appellant

                                                             v.

                                                 The STATE of Texas,
                                                       Appellee

                         From the 226th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2017CR1344A
                               Honorable Maria Teresa Herr, Judge Presiding 1

Opinion by:          Luz Elena D. Chapa, Justice

Sitting:             Luz Elena D. Chapa, Justice
                     Irene Rios, Justice
                     Liza A. Rodriguez, Justice

Delivered and Filed: April 24, 2019

AFFIRMED

           Michael A. Ramos appeals multiple convictions for causing bodily injury and serious

bodily injury to a child, T.G. 2 Ramos complains of insufficiency of the evidence, charge error, the

trial court’s failure to order a mistrial sua sponte, improper jury argument, and the trial court’s

failure to hold a hearing on his motion for new trial. We affirm Ramos’s convictions.




1
    Sitting by assignment.
2
    We refer to the minor child by his initials. See TEX. R. APP. P. 9.10(a)(3).
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                                          BACKGROUND

       In January 2016, three-year-old T.G. was living with his mother Lizzette and her boyfriend,

Ramos. Jared Garno moved into the apartment and agreed to babysit T.G. while Lizzette and

Ramos were at work. In February 2016, T.G.’s grandmother and aunt visited the apartment and,

after discovering T.G. had bruises and other visible injuries, they called the police. T.G. was

eventually transported to the hospital.

       Ramos was indicted for multiple counts of causing bodily injury and serious bodily injury

to T.G., and the case was tried to a jury. At trial, Garno testified Ramos hit T.G. with his hand,

injuring T.G.’s eye, when Ramos became upset with T.G. He also testified he saw Ramos spank

T.G., causing bruising. Garno further testified he saw Ramos push, kick, and step on T.G.; push

T.G. off of a chair; forcibly throw T.G. on a bed, causing T.G. to hit his back on the bed and then

hit his head on the ground; and bite T.G.’s arm and finger. He explained T.G. was bruised and

started limping after Ramos stepped on T.G. Garno also testified he saw Ramos repeatedly pull

on the tip of T.G.’s penis, causing a cut on T.G.’s penis. Other evidence, including the testimony

of T.G.’s grandmother and aunt and a recording of Ramos’s conversation with the police, showed

Ramos and Lizzette explained T.G.’s injuries were accidental.

       Dr. James Lukefahr, a child abuse pediatrician, testified T.G. had extensive bruising and

swelling around his left eye, a hemorrhage on the surface of his left eye that left redness and

bleeding, and internal injuries to his eye. T.G. also had numerous bruises on his face in varying

sizes and shapes, and on his hand. T.G. had two bone fractures, one in his pubic bone on the front

right side of his genital area and one in his lower spine. He had seven compression fractures in his

upper spine. Dr. Lukefahr also testified T.G. had ten bite marks on his body, a laceration on his

penis, and bruising on his scrotum. He opined that T.G.’s physical injuries were indicative of




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abuse, and it would be impossible for some of T.G.’s injuries to be caused by the types of accidents

that Ramos and Lizzette had described.

        After hearing the evidence, the jury found Ramos guilty of multiple counts of causing

bodily injury to T.G. and one count of causing serious bodily injury to T.G. The jury assessed

punishment and, after the trial court imposed the sentence, Ramos timely appealed.

                                        LEGAL SUFFICIENCY

        Ramos argues there is legally insufficient evidence under Jackson v. Virginia, 443 U.S.

307 (1979), that: (1) he was the person who had caused T.G.’s injuries; and (2) that he caused

those injuries intentionally or knowingly, as charged in the indictment. In reviewing the legal

sufficiency of the evidence, we ask whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 319; accord Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence “in the light most favorable to

the verdict.” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). We must “defer 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.” Isassi v. State, 330 S.W.3d 633,

638 (Tex. Crim. App. 2010) (internal quotations omitted).

        Garno testified he personally observed Ramos abusing T.G. by throwing him onto a bed,

striking him with his hand, stepping or stomping on him, pulling T.G.’s “privates,” and biting T.G.

Ramos acknowledges this testimony, but argues (1) this evidence “was derived from inadmissible

hearsay evidence and contradictory evidence from Jared Garno” and (2) Garno “should have been

evaluated as a co-conspirator or party to the offense” and his testimony was not corroborated.

However, uncorroborated accomplice witness testimony “can be sufficient to support a conviction

under the legal sufficiency standard dictated by Jackson v. Virginia,” Taylor v. State, 10 S.W.3d

673, 684–85 (Tex. Crim. App. 2000); we must consider all evidence—even improperly admitted


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evidence—in a legal sufficiency review, Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App.

2004); and we must defer to the jury’s role in resolving inconsistencies in the evidence. Isassi, 330

S.W.3d at 638. We hold there is legally sufficient evidence under Jackson to support Ramos’s

convictions.

                                  ACCOMPLICE WITNESS ISSUES

       In arguing the evidence is legally insufficient under Jackson, Ramos asserts Garno was an

accomplice witness and his testimony was not corroborated. In a separate issue, he argues he was

harmed by the trial court’s failure to submit an accomplice witness instruction to the jury. Ramos

contends Garno was an accomplice witness because he observed Ramos continuously assault T.G.,

did nothing to report or stop the alleged abuse, and Garno could have been charged as an

accomplice by causing injury to a child by omission.

       Article 38.14 of the Texas Code of Criminal Procedure provides, “A conviction cannot be

had upon the testimony of an accomplice unless corroborated by other evidence tending to connect

the defendant with the offense committed; and the corroboration is not sufficient if it merely shows

the commission of the offense.” TEX. CODE CRIM. PROC. art. 38.14. “[A] trial court must instruct

the jury sua sponte in accordance with Article 38.14 where applicable.” Jackson v. State, 487

S.W.3d 648, 658 (Tex. App.—Texarkana 2016, pet. ref’d). Because Ramos did not object at trial

to the absence of an accomplice witness instruction, we must determine whether Ramos was

egregiously harmed by the absence of the instruction. See Saunders v. State, 817 S.W.2d 688, 690

(Tex. Crim. App. 1991). “Under the egregious harm standard, the omission of an accomplice

witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is so

unconvincing in fact as to render the State’s overall case for conviction clearly and significantly

less persuasive.” State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App. 2016) (quotation marks

omitted).


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          Ramos argues Garno also could have been charged for the same offenses of injury to

T.G.—by omission—because Garno had assumed care, custody, and control of T.G. when he

babysat T.G. See TEX. PENAL CODE § 22.04(a), (b)(2). Garno was not charged with or convicted

of the same offenses. However, because the jury could have inferred Garno assumed care, custody,

and control as T.G.’s babysitter, and thus had a duty to act when Ramos was at home, the jury

could have found Ramos was an accomplice as a matter of fact. See Ash v. State, 533 S.W.3d 878,

884 (Tex. Crim. App. 2017) (holding a witness may be an accomplice as a matter of fact when the

evidence permits the jury to infer the witness was an accomplice). Although the State argues that

causing injury to a child by omission is not the same offense as causing injury to a child by act,

“injury to a child by act and injury to a child by omission should be treated as a different means of

committing the same offense.” See Villanueva v. State, 227 S.W.3d 744, 745 (Tex. Crim. App.

2007). We therefore turn to consider Ramos’s issues regarding Garno’s status as an accomplice

witness.

A. Corroborating Evidence

          We first consider Ramos’s assertion that the evidence is insufficient because there is no

non-accomplice evidence corroborating Garno’s testimony. In the accomplice witness context,

“corroborating evidence . . . need not be sufficient, standing alone, to prove beyond a reasonable

doubt that a defendant committed the offense.” Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim.

App. 2007). “There need be only some non-accomplice evidence tending to connect the defendant

to the crime, not to every element of the crime.” Id. “Such evidence may be either direct or

circumstantial.” Ambrose, 487 S.W.3d at 593. In our analysis, we must eliminate the accomplice

witness     testimony from      our   consideration    and   view   “all   of   the   non-accomplice

testimony . . . together, rather than as isolated, unrelated incidents.” See Simmons v. State, 282

S.W.3d 504, 511 (Tex. Crim. App. 2009).


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       We eliminate Garno’s testimony from our consideration, and assess whether the non-

accomplice evidence tends to connect Ramos to the offense. “[P]roof that an accused was at or

near the place where the crime occurred at or about the time that it happened, along with evidence

of other circumstances,” such as a motive, opportunity, flight, and attempts to conceal wrongdoing,

“can be sufficient corroboration to support a conviction.” Cox v. State, 830 S.W.2d 609, 611 (Tex.

Crim. App. 1992).

       Here, the non-accomplice evidence showed Ramos was one of three adults living with

T.G., and T.G.’s physical injuries were readily apparent. The trial court admitted photographs of

T.G.’s injuries from the day the police were called to the apartment, and they depict numerous

injuries to T.G.’s face, stomach, forearms, hands, and pelvic region. A responding police officer,

Nathan Zachary, testified he went to the apartment, saw T.G., and “immediately noticed” T.G.’s

injuries and T.G.’s limp. T.G.’s father testified he saw T.G. on that same day, and T.G. had bruises

on his face and he had a “black eye on his left eye.” A dash cam video recording was also admitted.

The video shows only the side of a building, but the audio recording contains the conversation

between Ramos and Officer Zachary. During the conversation, Ramos explained he, Lizzette, and

Garno lived in the apartment with T.G.

       The non-accomplice evidence also showed Ramos made numerous attempts to conceal

T.G.’s injuries. T.G.’s grandmother, Rose, testified she and her daughter, Celeste, went to check

on T.G. Rose testified she knocked on the door for four to five minutes before Ramos answered.

Ramos told her “nobody lives here,” including Lizzette. When Rose asked to see T.G., Ramos told

her he was going to dress T.G., closed the door, and fifteen to twenty minutes went by before he

opened the door again. Rose testified she saw T.G. standing in a corner, scared, which was unusual

because T.G. would run up to her and hug her. She also testified T.G. was wearing a long-sleeved




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shirt, and when she lifted up his sleeve, she saw T.G. had bruises. Celeste also testified, and her

testimony was generally consistent with Rose’s testimony.

       On the audio recording, Ramos falsely told Officer Zachary, initially, that he had taken

T.G. to Lizzette’s workplace fifteen minutes before Officer Zachary had arrived. Ramos then

admitted T.G. was inside the apartment. Officer Zachary testified T.G. was inside of a bedroom

closet. When Officer Zachary asked about T.G.’s injuries, Ramos stated they were caused by their

dog and T.G. running into a bookshelf. Dr. Lukefahr testified T.G.’s objective injuries, including

T.G.’s bruised eye and bone fractures, were inconsistent with accidents, but were consistent with

intentional physical abuse. Dr. Lukefahr also testified the bite marks on T.G. were caused by a

human adult. Furthermore, T.G.’s father testified T.G. had no facial injuries at the time T.G. had

moved, which was one month before the day of the father’s visit. We hold non-accomplice

evidence corroborates Garno’s testimony.

B. Egregious Harm

       Having identified the non-accomplice evidence corroborating Garno’s testimony, we next

consider whether this evidence is so unconvincing so as to render the State’s overall case for

conviction clearly and significantly less persuasive. See Ambrose, 487 S.W.3d at 598. We assess

the strength of non-accomplice evidence by examining its reliability or believability and the

strength of its tendency to connect the defendant to the crime. Id.

       The non-accomplice testimony discussed above was generally undisputed and key parts of

Ramos’s conversation with Officer Zachary on the audio recording are undisputable. This

undisputed non-accomplice evidence showed Ramos lived with T.G. and T.G. had immediately

apparent injuries to his face and body. Dr. Lukefahr provided extensive testimony regarding T.G.’s

injuries, and opined that the likely cause of T.G.’s injuries were consistent with intentional physical

abuse, and that some of the accidental explanations for T.G.’s injuries were impossible. On this


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record, considering the non-accomplice witness evidence’s reliability, believability, and its

tendency to connect Ramos to the offenses, we cannot say this evidence is so unconvincing so as

to render the State’s overall case for conviction clearly and significantly less persuasive. See id.

We therefore hold the record does not show Ramos was egregiously harmed by the trial court’s

failure to include an accomplice witness instruction in the jury charge.

                                 FAILURE TO DECLARE A MISTRIAL

        Ramos argues the trial court erred by failing to declare a mistrial sua sponte. Over Ramos’s

hearsay objection, the trial court allowed Rose, as an outcry witness, to testify T.G. told her Ramos

bit him. The trial court thereafter reconsidered its ruling, and instructed the jury to disregard Rose’s

testimony about what T.G. had told her. Ramos acknowledges he did not request a mistrial at trial.

Instead, when the trial court announced it would instruct the jury to disregard this testimony,

Ramos’s response was, “That’s fine.”

        Ramos contends he was not required to preserve his complaint about the denial of a mistrial

on appeal because the trial court’s error in admitting the evidence is incurable. When prejudice

arising from trial court error is incurable, a defendant is generally “required to request a mistrial

to preserve error on appeal because a mistrial would be the appropriate remedy.” See McGinn v.

State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). The applicability of this preservation

requirement ultimately “turns on the nature of the right allegedly infringed.” Grado v. State, 445

S.W.3d 736, 739 (Tex. Crim. App. 2014). Here, the nature of the right allegedly infringed is the

right to exclude hearsay testimony. However, the right to exclude hearsay evidence, even when

the evidence is admitted in violation of the Confrontation Clause, is a forfeitable right that must

be preserved. See id. at 741 & n.29. We hold that even if Ramos is correct that the admission of

Rose’s testimony was error that could be cured only by a mistrial, he forfeited his rights by failing

to request a mistrial in the trial court. See id.


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                                   IMPROPER JURY ARGUMENT

       Ramos argues the trial court erred by overruling his objection to the prosecutor’s closing

argument. During its rebuttal in closing arguments, the State referred to Ramos’s statements made

on February 25, 2016, when Ramos told Officer Zachary that T.G. was not at the apartment and

then changed his story. The prosecutor then stated:

           So a few minutes ago, the defense counsel said that his client stood up and said,
       “Not guilty.” Just like he was a liar on February 25, 2016, with everything he told
       the police on that day, he was a liar when he stood up and said, “Not guilty.”

Defense counsel immediately objected, “Your Honor, I object to that. That is my client’s

Constitutional right. I’m appalled that she has said that to this jury.” The trial court overruled

Ramos’s objection. On appeal, Ramos argues the prosecutor’s statement was an improper

comment on his failure to testify in violation of his rights under the Fifth and Fourteenth

Amendments to the United States Constitution, Article I section 10 of the Texas Constitution, and

article 38.08 of the Texas Code of Criminal Procedure.

       Assuming Ramos’s objection was sufficient to preserve the issue he raises on appeal, “[w]e

review a trial court’s ruling on an objection to improper jury argument for an abuse of discretion.”

Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San Antonio 2014, no pet.). Jury argument

may be proper if the argument answers the argument of opposing counsel. Id. Arguments that the

defendant denied responsibility for a crime simply because he pled not guilty is generally an

impermissible comment on the failure to testify. See Randolph v. State, 353 S.W.3d 887, 892

(2011). However, “comments about the failure to testify are permissible if they are a ‘fair response’

to the defendant’s claims or assertions.” Id.

       During his closing, Ramos argued Garno had repeatedly lied during his testimony, stating:

       Garno . . . lied to you repeatedly. . . . [and] you-all promised me you would judge
       the credibility of witnesses. And I ask that – I hold you to that, that you will do that.



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           Now, one thing is very important. Some of you might still have that lingering
       thing. “Well, Michael Ramos didn’t testify.” You can’t hold that against him at all,
       but Michael Ramos said something very important. He said, “I’m not guilty. I’m
       not guilty.”

Ramos’s argument at trial suggested that although he did not testify, his not guilty plea was a

statement the jury should consider. Because the prosecutor’s argument could reasonably be

considered a “fair response” to the defense counsel’s argument, we cannot say the trial court

abused its discretion by overruling Ramos’s objection. See id.

                   FAILURE TO HOLD HEARING ON MOTION FOR NEW TRIAL

       Ramos argues the trial court erred by not granting his request for a hearing on his motion

for new trial. To preserve a complaint for appeal about the trial court not holding such a hearing,

the defendant must obtain or attempt to obtain a ruling on his request for a hearing. Perez v. State,

429 S.W.3d 639, 644 (Tex. Crim. App. 2014). When a trial court expressly denies a motion for

new trial, the trial court implicitly denies a request for a hearing. Garcia v. State, 291 S.W.3d 1, 9

(Tex. App.—Corpus Christi 2008, no pet.). But when “a motion for new trial is overruled by

operation of law, the trial court’s failure to conduct a hearing, without more, is simply a ‘failure to

rule’ on the request for a hearing.” Oestrick v. State, 939 S.W.2d 232, 235 (Tex. App.—Austin

1997, pet. ref’d). Here, Ramos’s motion for new trial was overruled by operation of law. The trial

court’s failure to conduct a hearing therefore does not constitute a ruling on Ramos’s request for a

hearing. See id. Because Ramos did not obtain a ruling on his request for a hearing, this issue is

not preserved for our review. See Perez, 429 S.W.3d at 644.

                                            CONCLUSION

       We affirm the judgments of conviction.

                                                    Luz Elena D. Chapa, Justice

DO NOT PUBLISH



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