                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-11-00251-CR
        ______________________________


      GUADALUPE RAMIREZ, III, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 196th Judicial District Court
                Hunt County, Texas
               Trial Court No. 26486




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                         MEMORANDUM OPINION

         Guadalupe Ramirez, III, was convicted by a jury of aggravated assault against a public

servant. He pled true to the State’s enhancement paragraph and received an enhanced sentence

of fifty years’ imprisonment. On appeal,1 Ramirez argues that the evidence was insufficient to

convict him2 and that the trial court improperly commented on the weight of the evidence when

instructing the jury on the law of the parties.3 We affirm the trial court’s judgment because we

find: (1) no error in the court’s proper instruction, and (2) the evidence legally sufficient to

establish that Ramirez committed aggravated assault against a public servant.

         Ramirez argues that the trial court erred in instructing the jury on the law of the parties

under Section 7.02(b) of the Texas Penal Code. Ramirez’ arguments are based on the theory that

the evidence was legally insufficient for the jury to find Ramirez guilty, as a party, of assaulting

Fernandez. In other words, he complains that because there was no evidence that Ramirez

conspired with Vincent Thomas to engage in any crime, the instruction was improper. As

explained below, because we find the evidence legally sufficient to convict Ramirez as a party,

1
 Ramirez also appeals from the following convictions entered on the same date: aggravated assault of Virginia
Green with a deadly weapon (cause number 06-11-00252-CR); aggravated assault of Joanna Brock with a deadly
weapon (cause number 06-11-00253-CR); aggravated assault of Darlene Moffitt Robinson with a deadly weapon
(cause number 06-11-00254-CR); and aggravated robbery with a deadly weapon (cause number 06-11-00255-CR).
The complete factual background giving rise to all of these convictions is the same, and is set forth in our opinion of
this date in cause number 06-11-00255-CR. Therefore, this opinion only discusses the facts necessary to decide this
opinion.
2
 In a separate point of error, Ramirez argues that the court erred in overruling his motion for directed verdict. In
reviewing the denial of a directed verdict, we look to the legal sufficiency of the evidence. Williams v. State, 356
S.W. 3d 508, 522–23 (Tex. App.—Texarkana 2011, pet. ref’d); Todd v. State, 242 S.W.3d 126, 136 (Tex. App.—
Texarkana 2007, pet. ref’d).
3
 Ramirez’s brief incorrectly asserts that the trial court charged the jury on the law of transferred intent. Transferred
intent is covered under Section 6.04 of the Texas Penal Code. TEX. PENAL CODE ANN. § 6.04 (West 2011). A
transferred intent jury charge was not given to the jury.

                                                           2
we reject Ramirez’ contention that the court’s proper instruction amounted to a comment on the

weight of the evidence.

        In evaluating legal sufficiency, we review all of the evidence in the light most favorable

to the jury’s verdict to determine whether any rational jury could have found the essential

elements of aggravated assault against a public servant beyond a reasonable doubt. Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).

Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks,

323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the

direction of the Brooks opinion, while keeping in mind that the credibility of witnesses is the sole

province of the jury and that we “must 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)

(quoting Jackson 443 U.S. at 318–19); see Ehrhardt v. State, 334 S.W.3d 849, 857 (Tex. App.—

Texarkana 2011, pet. ref’d).

        Legal sufficiency of the evidence 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.

1997). The hypothetically correct jury charge “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.

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        The indictment in this case alleged that Ramirez, individually and acting together with

Thomas and Darius Williams, intentionally or knowingly threatened Fernandez by shooting a

firearm at him while knowing that he was a public servant who was investigating an aggravated

robbery. Ramirez individually committed the offense of aggravated assault against a public

servant if (1) he (2) intentionally or knowingly (3) used or exhibited a deadly weapon 4 (4) to

threaten Fernandez with imminent bodily injury (5) while knowing that Fernandez was a public

servant (6) who was lawfully discharging an official duty.                      TEX. PENAL CODE ANN. §§

22.01(a)(2), 22.02(a)(2), (b)(2)(B) (West 2011).

        “A person is criminally responsible as a party to an offense if the offense is committed by

his own conduct, by the conduct of another for which he is criminally responsible, or by both.”

TEX. PENAL CODE ANN. § 7.01(a) (West 2011).                    “A person is criminally responsible for an

offense committed by the conduct of another if[,] . . . acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other

person to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). Also, a

person is criminally responsible for the acts of another if

        in the attempt to carry out a conspiracy to commit one felony, another felony is
        committed by one of the conspirators, all conspirators are guilty of the felony
        actually committed, though having no intent to commit it, if the offense was
        committed in furtherance of the unlawful purpose and was one that should have
        been anticipated as a result of the carrying out of the conspiracy.




4
 A “deadly weapon” is “anything that in the manner of its use or intended use is capable of causing death or serious
bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2012).


                                                         4
TEX. PENAL CODE ANN. § 7.02(b) (West 2011).5 Thus, Ramirez committed aggravated assault

against a public servant as a party if he acted with intent to promote or assist Thomas and/or

Williams in the commission of the offense by encouraging, aiding, or attempting to aid them in

the aggravated assault of Fernandez.

        The evidence was sufficient to convict Ramirez if he was physically present at the

commission of the offense and encouraged its commission by words or other agreement.

Hartsfield, 305 S.W.3d at 864 (citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App.

1994) (op. on reh’g)). In determining whether the accused participated as a party, the fact-finder

may “look to the events occurring before, during and after the commission of the offense, and

may rely on actions of the defendant which show an understanding and common design to the

prohibited act.” Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh’g)

(quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)); see King v. State, 29

S.W.3d 556, 564 (Tex. Crim. App. 2000); Hartsfield, 305 S.W.3d at 864.

        In our opinion in cause number 06-11-00255-CR, we explained that the evidence was

sufficient for the jury to find that Ramirez was one of three men who robbed Bonnie Lou’s Game

Room and that all three robbers, Ramirez, Williams, and Thomas, were acting together. After

the robbery, all three fled the scene in a silver car driven by Ramirez. Officer Joseph Fernandez

spotted the getaway car and attempted to pull it over.

        Officer Jeffrey Reese testified that he saw Fernandez’ patrol unit chasing the silver car

“with his lights activated.”       He testified, “[T]hey had already came [sic] to a stop at the
5
 While not contained in the State’s indictment, an instruction based on Section 7.01(b) was included in the jury
charge.

                                                       5
intersection of 276 and 34. I heard gunshots at that time and proceeded up in the intersection.

And as I approached the intersection, I saw the deputy running to his vehicle.”

       As Fernandez was chasing the suspects he noticed “that they were talking to each other,

kind of . . . panicking.” After the vehicle stopped, Fernandez testified:

       The passenger, front passenger of the vehicle jumped out of the vehicle -- jumped
       out and shot. Before he jumped out, I had opened my car door. . . . It was a black
       male.

               The only thing I remember is blue gloves, and he had a bag in his hand.
       And as he jumped out, he was coming back towards my vehicle, and immediately,
       as soon as he turned around towards my vehicle, he pointed his arm up at me, and
       there -- I think what appeared to be a gun and opened fire.

                I dove from my vehicle, stepping out. I think I remember shooting one
       round . . . but he continued shooting at me. I crawled on my hands and knees to
       the back of my car. . . . The car was still in drive because I didn’t have time to put
       it in park.

              I turned over and sat on my butt, and immediately thinking he was right
       behind me; he wasn’t. I had saw my taillights were glaring on an object that
       appeared to be a man walking towards me with a gun pointed at my head.

                I lifted my arm and shot until he collapsed. And then I waited until he was
       -- until what I thought he was subdued.

Fernandez testified that Thomas was the shooter and was carrying a bag of money and a

Winchester .380 caliber gun.      Thomas was killed by Fernandez’ bullets. Concerned that the

other passengers in the car could have weapons, Fernandez “got up and chased the car, the

suspect car, and shot at the car.” It sped off.

       Reese saw the “small sedan turn and go towards Greenville.” He followed the suspect

vehicle at “94 miles an hour” with lights and sirens activated. Another unit, driven by Officer


                                                  6
David Wilson, joined the chase. Eventually, Trooper Jay E. Simpson “deployed stop sticks” that

“punched” the tires of the suspect’s vehicle. The vehicle came to a stop after a few miles, and

Reese commanded the occupants to exit the vehicle.

            Ramirez testified that he had no idea Thomas was going to get out and shoot at

Fernandez.         Ramirez stated he continued driving the getaway car because Fernandez was

shooting at the car.6 The jury was free to reject Ramirez’ self-serving testimony.

            It was already established that Ramirez was an active participant in the aggravated

robbery at the game room -- Ramirez drove the getaway car. Fernandez testified that he noticed

the occupants of the vehicle speaking to each other. Thereafter, the video recording from

Fernandez’ patrol car established that Ramirez stopped at the intersection just long enough to

allow Thomas to exit the car with his gun in hand. Ramirez sped off after Thomas was shot.

The jury could infer that Ramirez remained at the intersection for a brief period so that he could

transport Thomas in the event Thomas was successful in shooting Fernandez.

            Under Section 7.02(a)(2) of the Texas Penal Code, the jury could have found beyond a

reasonable doubt, that Ramirez knew Fernandez was a police officer who was discharging his

official duty to apprehend the game room robbers and that Ramirez encouraged, aided, or

attempted to aid Thomas in intentionally or knowingly threatening Fernandez with imminent

bodily injury by using a deadly weapon. Under Section 7.20(b) of the Texas Penal Code, the

jury could have also found Ramirez responsible for Fernandez’ assault since it determined that

Ramirez was involved in a conspiracy to rob the game room. They could have decided that

6
    Ramirez also told the jury that he did not conspire with anyone to rob the game room.

                                                            7
Fernandez’ assault was committed by Thomas, a co-conspirator, that the assault was committed

in furtherance of escape from the robbery, and that the assault should have been anticipated as a

result of carrying out the robbery, especially when Thomas exited the vehicle at the intersection

with a gun. Thus, Ramirez would have been liable for Fernandez’ assault. We find the evidence

sufficient to establish that Ramirez was a party to aggravated assault of a public servant.

       We affirm the trial court’s judgment.



                                                      Jack Carter
                                                      Justice

Date Submitted:        November 7, 2012
Date Decided:          November 27, 2012

Do Not Publish




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