                                                                          PD-1097-15
                         PD-1097-15                      COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                       Transmitted 8/24/2015 12:00:00 AM
                                                          Accepted 8/25/2015 5:00:08 PM
            TEXAS COURT OF CRIMINAL APPEALS                               ABEL ACOSTA
                                                                                  CLERK
_______________________________________________________

ANDY TORRES RAMOS                                        APPELLANT
                                 VS.

THE STATE OF TEXAS                             APPELLEE
_______________________________________________________

       Appealed from the 36th Judicial District Court

                      San Patricio County, Texas

                        Tr.Ct.No. S-13-3236-CR

                   APPELLATE CASE NO. 13-14-00199-CR

     13TH COURT OF APPEALS OF CORPUS CHRISTI, TEXAS
_______________________________________________________

                   APPELLANT'S BRIEF
_______________________________________________________

                       RANDALL E. PRETZER, PLLC

                        State Bar No. 16279300

                            P.O. Box 18993

                      Corpus Christi, Texas 78480

                          BUS: (361) 883-0499

                          FAX: (361) 883-2290

                      E-Mail: repretzer@gmail.com

                        ATTORNEY FOR APPELLANT



 August 25, 2015
IDENTITY OF PARTIES AND COUNSEL

        JUDGE PRESIDING

    THE HONORABLE RON CARR

  36H JUDICIAL DISTRICT COURT

SAN PARTRICIO COUNTY COURTHOUSE

      SINTON, TEXAS 78387

     COUNSEL FOR THE STATE

        MR.SAMUEL SMITH

  ASSISTANT DISTRICT ATTORNEY

         P.O. BOX 1393

      SINTON, TEXAS 78387

           APPELLANT

     MR. ANDY TORRES RAMOS

          P.O. BOX 83

     PORTLAND, TEXAS 78374

      APPELLANT'S COUNSEL

 MR. RANDALL E. PRETZER, PLLC

    ATTORNEY FOR APPELLANT

        P.O. BOX 18993

  CORPUS CHRISTI, TEXAS 78480


               i
                    TABLE OF CONTENTS


                                                     Page

IDENTITY OF PARTIES AND COUNSEL     . . . . . . . . . i

TABLE OF CONTENTS   . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . iii-iv

STATEMENT REGARDING ORAL ARGUMENT    . . . . . . . . v

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 1-2

STATEMENT OF THE CASE     . . . . . . . . . . . . . . 2-4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . 3-13

SUMMARY OF THE ARGUMENT    . . . . . . . . . . . . . 13

SOLE GROUND FOR REVIEW . . . . . . . . . . . . . . 14



                SOLE GROUND FOR REVIEW

 THE APPELLATE COURT ERRED WHEN IT FAILED TO FIND THAT

  THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND

LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION

 FOR AGGRAVATED ASSAULT, ALL INVIOLATION OF THE 5TH AND

   14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.




                             ii
ARGUMENT AND AUTHORITIES    . . . . . . . . . . . . 14-20

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE     . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE, RULE 9.4(i), T.R.A.P.    21

APPENDIX . . . . . . . . . . . . . . . . . . . .    22




                             iii
                   INDEX OF AUTHORITIES

Cases:                                             Page


Hightower v. State, 389 S.W.2d 674 (Tex.Crim.

App.1965)   . . . . . . . . . . . . . . . . . . . .   15

Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978) 15

Moore v. State, 531 S.W.2d 140 (Tex.Crim.App.1978 .   15

Houston v. State, 663 S.W.2d 455 (Tex Crim.App.1984) 15

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,61

L. Ed.2d 560 (1979) . . . . . . . . . . . . . . . . 15

Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.

[Panel Op] 1982)    . . . . . . . . . . . . . . . . . 15

Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1985). 16




                           iv
STATEMENT REGARDING ORAL ARGUMENT

Appellant waives oral argument.




                v
            TEXAS COURT OF CRIMINAL APPEALS
_______________________________________________________

ANDY TORRES RAMOS                              APPELLANT
                           VS.

THE STATE OF TEXAS                             APPELLEE
_______________________________________________________

     Appealed from the 36th Judicial District Court

               San Patricio County, Texas

                 Tr.Ct.No. S-13-3236-CR

           APPELLATE CASE NO. 13-14-00199-CR

     13TH COURT OF APPEALS OF CORPUS CHRISTI, TEXAS
_______________________________________________________

                   APPELLANT'S BRIEF
_______________________________________________________



TO THE HONORABLE COURT OF CRIMINAL APPEALS:



                    PROCEDURAL HISTORY
    ANDY T. RAMOS, hereinafter referred to as Appellant,

respectfully petitions the Court of Criminal Appeals to

review the judgment of the 13th Court of Appeals which

had affirmed his conviction as per that judgment in Cause

No. 13-14-00199-CR as set forth in the Appendix, attached


                            1
hereto and incorporated by             reference herein for any

purpose.



                      STATEMENT OF THE CASE

     On January 27, 2014, a jury was selected in this

case.   On January 28, 2014 the Appellant pled NOT guilty

to charge of Aggravated Assault, a second degree felony,

under Cause No. S-13-3236-CR, entitled The State of Texas

v.   Andy    Torres     Ramos.    (RR,      Vol.    3,    pp.     14-15).

Subsequently,    the     state    presented        to    the    jury   its

evidence through testimony and exhibits. Appellant did

testify and presented to the jury his evidence through

testimony.     Thereafter, the state and Appellant rested.

After deliberation, the jury returned with a unanimous

verdict of guilty to the charge of Aggravated Assault.

(RR, Vol. 4, page 34).           On January 29, 2014, the court

again convened to hear evidence during the punishment

phase of this trial.         The state after it rested and

closed,     presented    argument      to    the    court       regarding

sentencing. The Appellant presented his evidence through


                                   2
two witnesses’ testimony.       Thereafter, Appellant rested,

closed, and presented argument regarding sentencing. The

jury sentenced Appellant to three (3) years in prison,

but    recommended   to   the   court   that   the   sentence   be

probated. The jury did not asses a fine. (Vol. 5, pp. 27-

28).

       Appellant perfected his appeal by filing with the

District Clerk of San Patricio County, Texas, in writing

his Notice of Appeal, on January 29, 2014. (CR, Vol. 1,

page 65).



                      STATEMENT OF FACTS

       Again, On January 27, 2014, a jury was selected in

this case.    On January 28, 2014 the Appellant pled NOT

guilty to the charge of Aggravated Assault, a second

degree felony, under Cause No. S-13-3236-CR, entitled The

State of Texas v. Andy Torres Ramos. (RR, Vol. 3, pp. 14-

15).    Subsequently, the state presented to the jury its

evidence through testimony and exhibits. Appellant did




                                3
testify and presented to the jury his evidence through

testimony.

    During the trial on the merits, the state called

several witnesses to testify regarding the charge of

Aggravated Assault as set forth in the indictment to

which Appellant had pled NOT guilty.

    The first witness called by the state was Deputy

Sheriff Jay Daniel Hinojosa, who testified as follows:

that on or about July 14, 2013, he was dispatched to

County Road 61 regarding an alleged vehicular assault

involving Victoria Renee Martinez (hereinafter generally

referred to as the victim); that he interviewed the

victim   and   took   pictures   of   her   injuries   allegedly

inflicted on her person as a result of the alleged

assault; that four of these pictures were offered and

received into evidence; that she had redness on her

throat, her neck and the palms of her hands; that she had

some pain in her feet;     that there was a picture of her

purse and six or seven Hydrocodone pills found in that

same purse belonging to the victim; that the victim


                                 4
admitted    to    the   deputy      that      the   Hydrocodone    pills

belonged     to     her;     [all       subsequent      emphases       are

Appellant’s]; that the purse was found in the car driven

by Appellant and was not at the place where the victim

was found but subsequently delivered to the deputy; that

due   to   the    injuries    that      the    victim   sustained,     an

ambulance was dispatched to the scene and transported the

victim to the hospital; that the deputy did not, however,

see any car hit the victim, nor was there anything in his

report that any other witness saw Appellant’s car hit the

victim; that the victim’s Hydrocodone pills could cause

intoxication; that the victim told him that the car had

driven over her back; that he was not aware that the

Appellant’s Ford Mustang weighed a little less than 3,400

pounds, but he was aware that the car was heavy. (RR,

Vol. 3, pp. 24-46).

      The next witness called by the state was Sergeant

Steven Loving, who testified as follows: that he prepared

the   offense     report     that    would     be   submitted     to   the

District Attorney for review and possible prosecution;


                                    5
that the victim did bring her purse to his office to

demonstrate cuts and rips (teeth marks?); that he had no

idea of the condition of the purse prior to the alleged

assault; that the victim related to him that she felt the

back TIRE of Appellant’s car on her back; that he was

informed that the victim was taken to the hospital,

treated and released that SAME DAY; and, that there were

no torn or ripped clothing, or any other articles with

tire-tracks, belonging to the victim that were tagged and

prepared as evidence in this case. (RR, Vol. 3, 46-67).

    The next witness called by the state was the alleged

victim,   Victoria   Renee   Martinez,   who   testified   as

follows: that on the day of the incident Appellant had

picked her up at her home, they had driven to Corpus

Christi, Texas, and then Appellant had driven her back

to her home; that while in Appellant’s car and in front

of her home he had asked her to have sex with him; that,

though they had had intimate relations in the past, she

had refused and an argument ensued wherein Appellant had

accused her of seeing someone else; that Appellant left


                              6
with her still in the car; that Appellant wanted to see

her cell phone to see who she had been calling; that

while he was driving around the neighborhood he was

trying to keep her in the car by pulling on her arms and

purse straps; that she was screaming for him to “Let me

out”; that Appellant was driving recklessly; that he

finally stopped and pushed her out of the car on the

passenger side, where she fell under the car with her

feet next to the rear tire on the driver’s side of the

car; that this driver’s side rear tire went over her

back; that she was in pain; that the rear tire had not

made any marks on her back; that she DENIED that she told

Deputy Hinojosa that the Hydrocodone pills had belonged

to her; that she had in the past been addicted to

Hydrocodone; that she was admitted and released from the

hospital the same day; that there was no evidence that

she had lacerations, broken bones or ruptured organs such

as   her   lungs,   spleen,   pancreas,   liver,   stomach   or

intestines; and, that she had no follow-up examination

with a physician. (RR, Vol. 3, pp. 68-1120).


                               7
      Thereafter,   the    state     called   Gracie   Orta,   who

testified as follows: that on the day of this incident

she heard screaming coming from a car which would stop

and start again; that it was a white car with a red

stripe; that a lady was screaming, kicking and trying to

get out of the car; that the car finally left; that she

had no idea what the argument may have been; and, that

she did not see the car strike anyone. (RR, Vol. 3, pp.

114-117).

      The next witness called by the state was Israel

Flores, who testified as follows: that on the day of the

incident he and Ms. Orta where in his front yard when he

heard a lady screaming; that he and his sister ran over

to the area where the screams came from and saw a young

lady being pulled into a car with arms and one leg still

hanging out; that Mr. Flores got into his car and pursued

the fleeing vehicle which was white with a red stripe;

that he found the lady by the side of the road about a

mile from his house; that he had no idea what the argument

was   about   and   he    had   no   idea     what   the   victim’s


                                8
relationship had been with the driver; and, that he did

not see the vehicle strike anyone. (RR, Vol. 3, pp. 118-

123).

    Thereafter, the state called Randall Hatton, who

testified as follows: that on the day of the incident a

white car with a red stripe with the passenger door open,

pulled up near the place where he and his son were working

on a car; that a lady in the car was screaming for help;

that he and his son attempted to render assistance but

the car left; that he did not see the car strike anyone;

and, that he had no idea what the argument may have been

about. (RR, Vol. 3, pp. 124-128).

    Finally, the state called James Allen Baugus, who

testified as follows: that on the day of the incident he,

along with Randall Hatton and son, basically saw the same

events regarding the car and the victim; that he did

pursued the car with the victim therein and finally found

her standing by the road; that she appeared to be very

upset; that he did not see the car strike anyone; and,




                            9
that he had no idea what the argument was about. (RR,

Vol. 3, pp. 129-137).

      The state rested.

      Then counsel for the Appellant notified the court

that the Appellant would, in fact, testify, along with

other witnesses for the defense.

      The first defense witness called was Gracie Torres,

who testified as follows: that she was the mother of the

Appellant; that beginning sometime in 2012, Appellant and

Victoria Martinez, the victim, lived in her household for

about a year; that during that time the victim told her

that she had become addicted to Lortab;            that in the past

the victim’s mother would give the victim Hydrocodone

because she was always in pain; that the victim had asked

her   not   to   tell   Appellant    about   the   Lortab   problem

because it would upset the Appellant; that the Appellant

and the victim argued frequently; that the victim was

usually the aggressor in such arguments, screaming and

yelling     at   the    Appellant;   that    she   never    saw   the

Appellant do anything physically to hurt the victim; that


                                10
Appellant would just walk away from the victim when she

became argumentative and aggressive; (RR, Vol. 3, pp.

139-152).

    Then    the   defense   called   Nicole   Montalvo,   who

testified as follows: that the Appellant was her brother-

in-law; that back in 2012, she lived in the household

with Appellant and the victim, along with other family

members; that she observed the victim taking Hydrocodone

and Lortab on a daily basis; that the Appellant and the

victim would frequently get into arguments because the

victim did not have either of these drugs on hand; that

the victim was usually the aggressor in these arguments

since Appellant did not want her to have these drugs;

that again, the Appellant would try to calm the crises

generated by the victim or would just walk away from such

confrontations regarding the victim’s addiction; and,

that Appellant was never physical with the victim. (RR,

Vol. 3, pp. 152-162).

    Finally, the Appellant was sworn and testified as

follows: that on the day of the incident he did have an


                             11
argument    with    the    victim         about   her   use   of   those

prescription pills; that there were in the past frequent

arguments regarding such consumption of Hydrocodone and

Lortab; that on the day of this incident he believed that

she had them in her purse; that on the day of the incident

she kept trying to exit the vehicle; that he did not want

her to leave his car because she was depressed because

of a recent miscarriage; that he felt she might abuse the

drugs she had in her possession and injure herself; that

she   in   fact    had   had   two    (2)    miscarriages     which   he

personally believed had brought about such gynecological

problems to include depression; that he never tried to

push her out of his car; that he never tried to choke

her; that he tried to keep her from jumping out of his

car when it was moving; that he never tried to run her

over with his car; and, that when she finally exited his

car, he looked back, saw that she was standing and

concluded that she was only two blocks (five-hundred

[500] yards), more or less, from her home; and, that he

left because she was standing and not lying in the middle


                                     12
of the street, that she was not far from her home, and

that she had no dangerous medications since he had taken

the Hydrocodone from her. (RR, Vol. 3, pp.163-176).

    The state called as a rebuttal witness, Deputy Steven

Loving in an effort to clarify the distance that the

victim may have been from her home when she finally left

Appellant’s car.     However, it appeared that the Deputy

Loving’s   testimony   was   tentative   and   in   Appellant’s

opinion, inconclusive at best, regarding his estimate of

that particular distance. (RR, Vol. 3, pp. 177-184).

    The state rested and closed.

    The defense rested and closed.



                   SUMMARY OF THE ARGUMENT

    The state utterly failed to offer sufficient evidence

to support the jury’s finding that Appellant had, beyond

a reasonable doubt, committed the offense of aggravated

assault, all in violation of the 5th and 14th Amendments

to the United States Constitution.




                              13
                    SOLE GROUND FOR REVIEW

 THE APPELLATE COURT ERRED WHEN IT FAILED TO FIND THAT

  THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND

LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION

 FOR AGGRAVATED ASSAULT, ALL INVIOLATION OF THE 5TH AND

   14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.



                   ARGUMENT AND AUTHORITIES

    Appellant      contends   that    the    evidence     introduced

during    the   trial   was   insufficient         to   support   his

conviction under the indictment.

    Formerly, Appellant was charged by indictment with

aggravated assault, which stated in part as follows:



    “. . . that ANDY RAMOS TORRES on or about 14th
    day of July, A.D. 2013 and anterior to the
    presentment of this indictment, in the County
    and    State    aforesaid,       did    then    and   there
    intentionally,      knowingly     or    recklessly    cause
    bodily injury to Victoria Martinez by striking
    the said Victoria Martinez with a deadly weapon,
    to wit: a vehicle, which in the manner of its


                               14
    use of intended use was then and there capable
    of causing serious bodily injury or death. (CR,
    Vol. 1, pp. 5-6).


    The courts have held that the state always has the

burden    to   prove   beyond    a    reasonable      doubt   that   the

accused    committed    the     criminal      acts    charged   in   the

indictment,      Hightower      v.        State,     389   S.W.2d    674

(Tex.Crim.App.1965).      Furthermore, the state being bound

by its allegations in the indictment must prove them

beyond a reasonable doubt.           Crocker v. State, 573 S.W.2d

190 (Tex.Crim.App.1978); Moore v. State, 531 S.W.2d 140

(Tex.Crim.App.1978).       The courts have held that in all

criminal cases regarding points of error for insufficient

evidence, the courts must examine the evidence in the

light most favorable to the verdict and determine whether

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.                Houston

v. State, 663 S.W.2d 455 (Tex Crim.App.1984); Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.


                                     15
[Panel Op] 1982).      In addition, the courts have held that

this test for the sufficiency of the evidence would be

applied equally to direct and circumstantial evidence

cases.      Wilson      v.        State,     654    S.W.2d       465

(Tex.Crim.App.1985).

    In this particular case, this Court of Criminal

Appeals may note the following:



    1. That Victoria Martinez, the alleged victim, would

         want   the   jury   to    believe   that   when   and   if

         Appellant’s Ford Mustang allegedly ran over her

         upper torso or her back, it was possible for her

         to sustain NO broken bones, NO ruptured spleen, NO

         ruptured pancreas, NO ruptured liver, NO ruptured

         stomach or intestines, or NO serious lacerations;



    2. That, other than the alleged victim, no one saw

         Appellant run over her with his 3,400 (more or

         less) pound car;




                                  16
3. That no one saw Appellant attempt to run over the

  alleged victim with his car;



4. That    there    was    evidence       that    Appellant    was

  attempting       to   prevent    the    alleged    victim    from

  throwing herself out of his car;


5. That there was evidence that the Appellant (with

  his knowledge of her past emotional proclivities)

  was attempting to prevent          the alleged victim from

  injuring herself;


6. That the alleged victim had been in the past, (and

  by her own admission), addicted to Hydrocodone and

  Lortab,    which      affected    her    past     demeanor   and

  conduct;


7. That such addiction probably had again, on the day

  of the incident, surely been a factor precipitating

  her     emotional     state,     since    the     investigating

  officer obtained from her an admission that the



                             17
  Hydrocodone found in her purse that same day,

  belonged to her;


8. That if the Court of Appeals examined the exhibits

  received     into    evidence,          particularly          the   one

  showing the alleged victim’s face, it may find that

  her   eyes    were    those       of    one    who     had    consumed

  substances     which        had    an        intoxicating       effect

  precipitating excessive emotional emoting during

  this incident;


9. That the alleged victim’s history, as set forth by

  the      Appellant,         of         two      (2)         unfortunate

  miscarriages, may have exacerbated the victim’s

  hysterical conduct;


10. That       the     alleged           victim’s         history      of

  argumentation        and    debate           with     the    Appellant

  demonstrated         that         she        was      an      unhappy,

  unpredictable and troubled individual, who could




                              18
        direct abusive outburst against Appellant due to

        the demands of her addiction;


      11. That if anyone was reckless in their                conduct,

        the actions of the alleged victim on that day of

        the incident were consistent with her past abusive

        and irrational conduct brought on by her addiction

        and tragic miscarriages; and,


      12. Finally, Appellant askes in all humility how

        could the jurors render its verdict of guilty,

        considering    the     INCREDULOUS        testimony   of    the

        alleged victim who insisted that the Appellant had

        run   over    her    with    his    car,    when   there    was

        sufficient evidence before the same jurors that

        such an event never happened! Sacre Blue!


      Accordingly, the state failed to meet its burden of

proof and the jury should have found that there was, as

a matter of law and fact, insufficient evidence to prove

the   elements   of   the    offense       of    aggravated   assault.

Furthermore,     citizens      should      not     be   convicted   by

                                    19
inconclusive and ambiguous evidence, which does not meet

the very high burden of proof as set forth by the time

tested phrases “beyond a reasonable doubt,” or “to a

moral certainty.”



                         PRAYER FOR RELIEF

       For   ALL   the    reasons    stated   above,   Appellant

respectfully requests that the honorable Court of Appeals

reverse the trial court’s judgment, and render a finding

that Appellant is NOT guilty of the offense of aggravated

assault as had been set forth in the indictment against

him.

       RESPECTFULLY SUBMITTED:



    /S/   Randall E. Pretzer
    Randall E. Pretzer, PLLC
    Attorney for Appellant
    State Bar No. 16279300
    P.O. Box 18993
    Corpus Christi, Texas 78480
    BUS: (361) 883-0499
    FAX: (361) 883-2290
    E-Mail: repretzer@gmail.com




                                20
                  CERTIFICATE OF SERVICE

    I certify that a true and correct copy of Appellant's

Brief was delivered to the San Patricio County District

Attorney’s Office, ATTN: Appellant Division, 400 West

Sinton Street, Sinton, Texas 78387, by hand-delivery;

and, to The State Prosecuting Attorney, P.O. Box 13046,

Austin, Texas 78711-3046, on August 24, 2015, by first

class mail.


                                   /S/   Randall E. Pretzer
                                   Randall E. Pretzer, PLLC
                                   Attorney for Appellant


                  CERTIFICATE OF COMPLIANCE
                   UNDER RULE 9.4 (i), TRAP

    Please be advised that in compliance with Texas Rule

of Appellate Procedure 9.4(i)(3), as amended, I certify

that the number of words in this brief, excluding those

matters listed in Rule 94 (i)(1), is       3,110   as per the

computer count.

                                   /S/   Randall E. Pretzer
                                   Randall E. Pretzer, PLLC
                                   Attorney for Appellant



                             21
APPENDIX


   22
                    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.


                                 23
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.

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. . .
     .




                                24
        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, but she admitted having

        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

                                                    25
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 grabbing, from falling out of the car with the other
     hand. grabbing, from falling out of the car with the other
     hand.

______________________________________________________________
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.


                                    26
          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. 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.

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

                                                  27
“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 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


bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.”).
         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.

                                                    28
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 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.




                                 29
