                                                                                    ACCEPTED
                                                                                01-14-00831-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                            7/7/2015 2:40:42 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK


                    No. 01-14-00831-CR
                             In the
                       Court of Appeals                   FILED IN
                                                   1st COURT OF APPEALS
                            For the                    HOUSTON, TEXAS
                    First District of Texas        7/7/2015 2:40:42 PM
                          At Houston               CHRISTOPHER A. PRINE
                                                           Clerk
                  
                         No. 1411387
                  In the 263rd District Court
                   Of Harris County, Texas
                  
                        RICKY RAMOS
                           Appellant
                               V.
                   THE STATE OF TEXAS
                            Appellee
                  
                STATE’S APPELLATE BRIEF
                  

                                       DEVON ANDERSON
                                       District Attorney
                                       Harris County, Texas

                                       ABBIE MILES
                                       State Bar No: 24072240
                                       Assistant District Attorney
                                       Harris County, Texas

                                       Hank Altmiller
                                       Lacy Johnson
                                       Assistant District Attorneys
                                       Harris County, Texas

                                       1201 Franklin, Suite 600
                                       Houston, Texas 77002
                                       Tel.: 713/755-5826
                                       FAX No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                STATEMENT REGARDING ORAL ARGUMENT

        Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.


                       IDENTIFICATION OF THE PARTIES

        Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

        Complainant, victim, or aggrieved party:

              Leonardo “Johnny” Adler

        Counsel for the State:

              Devon Anderson  District Attorney of Harris County

              Abbie Miles  Assistant District Attorney on appeal

              Hank Altmiller & Lacy Johnson  Assistant District Attorneys at

trial

        Appellant or criminal defendant:

              Ricky Ramos

        Counsel for Appellant:

              Melissa Martin  Counsel on appeal

              Michael P. Fosher  Counsel at trial

        Trial Judge:


                                            i
Hon. Jim Wallace  Presiding Judge




                         ii
                             TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT……………………...………..i

IDENTIFICATION OF THE PARTIES……………………………………...……i

INDEX OF AUTHORITIES……………………………………..………………..iii

STATEMENT OF THE CASE……………………………………………..………1

STATEMENT OF THE FACTS…………………………………..………………..1

SUMMARY OF THE ARGUMENT……………………………………..………....4

REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
Appellant did not suffer egregious harm by the trial court’s failure to include a beyond
a reasonable doubt instruction regarding the extraneous allegations in the punishment
phase of trial because the State conceded in closing arguments that appellant may or
may not be a gang member, there was no mention during the punishment phase of
the trial of appellant’s drug use during the commission of the offense, and the jury
assessed a punishment below what the State urged….............………………………...4

CONCLUSION…………………………………..………………………………..13

CERTIFICATE OF SERVICE………………………………………………….....14




                                           iii
                                    INDEX OF AUTHORITIES
Cases
Abdnor v. State,
 871 S.W.2d 726 (Tex. Crim. App. 1994). ......................................................................... 5

Allen v. State,
 253 S.W.3d 260 (Tex. Crim. App. 2008) ........................................................................ 11

Allen v. State,
 47 S.W.2d 47 (Tex. App. –Fort Worth 2001, pet. ref’d) .......................................... 7, 10

Almanza v. State,
 686 S.W.2d 157 (Tex. Crim. App. 1984) ...................................................................... 5, 7

Ellison v. State,
 86 S.W.3d 226 (Tex. Crim. App. 2002) ...................................................................... 7, 11

Graves v. State,
 176 S.W.3d 422 (Tex. App.—Houston [1st Dist.] 2004, pet. stricken) ......................... 9

Guzman v. State,
 No. 04-02-00198-CR, 2003 WL 22336052 (Tex. App.—San Antonio Oct. 15, 2003,
 pet. ref’d) (mem. op., not designated for publication) ................................................. 10

Harper v. State,
 No. 05-04-00004-CR, 2004 WL 2601659 (Tex. App.—Dallas Nov. 17 2004, pet.
 ref’d) (mem. op., not designated for publication) ........................................................... 9

Huizar v. State,
 29 S.W.3d 249 (Tex. App.—San Antonio 2001, pet ref’d)………………...……9, 12

Hutch v. State,
 922 S.W.2d 166 (Tex. Crim. App. 1996) .......................................................................... 7

Prenger v. State,
  108 S.W.3d 501 (Tex. App.—Houston [14th Dist.] 2003, pet ref’d). ............................ 5

Tabor v. State,
  88 S.W.3d 783 (Tex. App.—Tyler 2002, no pet.) ........................................................... 9


                                                        iv
Walton v. State,
 No. 14-06-00227-CR, 2007 WL 706582 (Tex. App.—Houston [14th Dist.] March 8,
 2007, pet. ref’d) (mem. op., not designated for publication) ......................................... 8
Statutes
TEX. CODE OF CRIM. PROC. ANN. art. 36.19 (West 2012). ............................................ 5, 7
TEX. CODE CRIM. PROC. 37.07 Sec. 3(a)(1) (West Supp. 2014). ....................................... 6

Rules

TEX. R. APP. P. 9.4(g) .............................................................................................................. i
TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i
TEX. R. APP. P. 39.1 ................................................................................................................. i




                                                                   v
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

      Appellant was charged with aggravated assault with a deadly weapon, and in

one enhancement paragraph, was alleged to have been previously convicted of

harassment of a public servant (C.R. 16). Appellant entered a plea of not guilty to the

offense, and stipulated that the enhancement paragraph was true (R.R.III 7, R.R.IV 5-

6; C.R. 135). The jury found appellant guilty, and sentenced him to confinement for

twenty-five years in the Institutional Division of the Texas Department of Criminal

Justice (R.R.III 165, R.R.V 44; C.R. 135). A written notice of appeal was timely filed

(C.R. 138-139).

                         


                             STATEMENT OF FACTS

      The State challenges all factual assertions in appellant’s brief and presents the

following account of the facts.

      Laura Ann Cobb and Leonardo “Johnny” Adler were at home on December

12, 2013, with their nephew Ricky Ramos, appellant, that was over visiting (R.R.III

11-12, 17-18). This was a common occurrence as Laura and Johnny had a good

relationship with appellant (R.R.III 13, 15, 52-53).

      Johnny was in the kitchen cooking oatmeal (R.R.III 55). Appellant left and

came back about an hour later (R.R.III 57). When appellant returned, he entered
through the unlocked door without knocking, which was not unusual (R.R.III 62).

Appellant did not seem right when he walked in, he appeared to be “out of it”

(R.R.III 62-63). Johnny offered appellant some oatmeal, and asked him if he was okay

(R.R.III 63). While Johnny’s back was turned to appellant, appellant walked up behind

Johnny and stabbed him (R.R.III 64-65). The knife blade broke off inside of Johnny,

but appellant was undeterred and began stabbing Johnny with the handle of the knife

(R.R.III 67). Appellant stabbed Johnny three to four times (R.R.III 29, 67). Johnny

fell to the ground (R.R.III 68). Johnny said to appellant “[w]hate are you doing?[] I

didn’t do nothing to you” (R.R.III 68). Johnny was able to grab onto appellant and

pull him to the ground, and hit him with a pan (R.R.III 72-73).

      Laura had taken her medication at 8 p.m. and fell asleep, but was woken up

thirty to fort-five minutes later to Johnny yelling “Laura, come get me. Come get me.

I’m bleeding.” (R.R.III 19-20, 57, 72-73). Laura got up and went into the dining room

and saw Johnny on the floor bleeding and “holding onto [appellant]” (R.R.III 20-21,

74). Laura got appellant off of Johnny, and called 911, and told the 911 dispatcher

that appellant appeared to be under the influence of “Cush” (R.R.III 23, 25, 76,

State’s Exhibit 6). Johnny had already lost a lot of blood and could barely talk (R.R.III

25-26). Police arrived shortly (R.R.III 27, 76). The officer tried to slow the bleeding by

putting pressure on the stab wound (R.R.III 30, 76). Johnny was in a lot of pain and

thought he was going to die (R.R.III 77).




                                            2
      Laura saw the handle of a knife on the floor, but could not find the blade until

EMS had taken Johnny out of the house (R.R.III 29). The knife did not come from

Laura’s and Johnny’s apartment (R.R.III 48). Once the officers arrived, one officer

put pressure on Johnny’s stab wound until EMS arrived (R.R.III 30). An ambulance

took Johnny from the apartment, but then he was transferred to a life flight helicopter

and taken to the Ben Taub Hospital (R.R.III 30-31, 78). Johnny was in the hospital

for several days (R.R.III 78). Johnny now has to walk with a cane, and has a scar from

the stab wound right by his spine (R.R.III 80, 83).

      Officer Brian Ridings of the Pasadena Police Department was on patrol on

December 12, 2013, and responded to the scene and took photographs of the scene

(R.R.III 104-105). Officer Doug Buckert of the Pasadena Police Department also

responded to the scene (R.R.III 124). When he arrived he saw Johnny sitting in a pool

of blood (R.R.III 126). He applied pressure to the stab wound (R.R.III 127). Johnny

was able to tell Officer Buckert that appellant stabbed him (R.R.III 128). Johnny was

in and out of consciousness and Officer Buckert was unsure if Johnny would survive

(R.R.III 129-130). Officer Buckert spoke to Laura to try to get a location on appellant

(R.R.III 132). Johnny was found hiding in his girlfriend’s apartment (R.R.III 134).

Appellant’s girlfriend asked what was going on, and appellant responded that “he had

stabbed his uncle” (R.R.III 135).

      During the punishment phase of the trial, the State offered evidence of

appellant’s prior criminal history, but called no witnesses (R.R.IV 4-7). During the

                                           3
testimony of Jeanette Ramos Adler, appellant’s aunt, the State introduced pictures

from appellant’s Facebook account in which appellant can be seen with “Tango blast”

tattoos (R.R.V 24-26). Ms. Adler testified that “Tango blast” was a “prison gang”

(R.R.V 26).

                        


                       SUMMARY OF THE ARGUMENT

      Appellant did not suffer egregious harm by the trial court’s failure to include a

beyond a reasonable doubt instruction regarding the extraneous allegations in the

punishment phase of trial because the State conceded in closing arguments that

appellant may or may not be a gang member, there was no mention during the

punishment phase of the trial of appellant’s drug use during the commission of the

offense, and the jury assessed a punishment below what the State urged. Appellant’s

point of error should be overruled.

                        


                         REPLY TO POINT OF ERROR

      Appellant argues that the trial court erred in not sua sponte giving a beyond a

reasonable doubt instruction during the punishment phase of the trial regarding

extraneous offense evidence. Appellant further argues that he suffered egregious harm

as a result of this failure because the evidence of his drug use and gang membership



                                          4
was weak and simply used to inflame the jury into assessing a higher punishment.

However, appellant was neither denied a fair or impartial trial nor suffered egregious

harm by the trial court’s failure to include a beyond a reasonable doubt instruction

regarding the extraneous allegations in the punishment phase of trial because the State

conceded in closing arguments that appellant may or may not be a gang member,

there was no mention during the punishment phase of trial of appellant’s drug use

during the commission of the offense, and the jury assessed a punishment below what

the State urged. Appellant’s point of error should be overruled.

Standard of Review

      In reviewing a claim of jury charge error, the reviewing court must first

determine whether error occurred. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim.

App. 1994). If the error is properly objected to, reversal is required if “some harm”

occurs. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); TEX. CODE OF

CRIM. PROC. ANN. art. 36.19 (West 2012). “Some harm” simply means that reversal is

mandated when it has any impact on the accused. Id. However, if the error is not

objected to at trial, reversal is required only when the accused “has not had a fair and

impartial trial.” Almanza, 686 S.W.2d at 171; TEX. CODE     OF     CRIM. PROC. ANN. art.

36.19 (West 2012). This type of error is referred to as “egregious” or “fundamental

error.” Almanza, 686 S.W.2d at 171. The entire record is examined considering the

charge, the evidence, arguments of counsel, weight of the evidence, contested




                                           5
evidence, and anything else that is relevant in the record when looking for whether

some harm or egregious harm occurred. Id.

Analysis

          Section 37.07 Sec. 3 of the Texas Code of Criminal Procedure states that

                 Regardless of the plea and whether the punishment be assessed by the
          judge or the jury, evidence may be offered by the state and the defendant as to
          any matter the court deems relevant to sentencing, including but not limited to
          the prior criminal record of the defendant , his general reputation, his character,
          the circumstances of the offense for which is being tried, and notwithstanding
          Rules 404 and 405, Texas Rules of Evidence, any other evidence of an
          extraneous crime or bad act that is shown beyond a reasonable doubt by
          evidence to have been committed by the defendant or for which he could be
          held criminally responsible, regardless of whether he has previously been
          charged with or finally convicted of the crime or act…

TEX. CODE CRIM. PROC. 37.07 Sec. 3(a)(1) (West Supp. 2014).

          In the present case, the State introduced photographs from appellant’s

Facebook page of appellant with gang tattoos (R.R.IV 25-26, R.R.VI 97). Additionally,

Laura, the 911 caller, made an assertion that appellant was on “Cush” and this call was

played for the jury in the guilt-innocence phase of trial (State’s Exhibit 6). Appellant

complains about these extraneous allegations.1

          Appellant argues that “the State offered evidence that [appellant] was ‘high on

something’ and [appellant’s] possible affiliation with the Tango Blast prison gang” and

error occurred because “the charge did not include an instruction regarding the




1
    Appellant’s brief at 3.


                                               6
appropriate burden of proof necessary before the jury could consider the extraneous

acts in assessing punishment.”2

          Appellant made no objection to the punishment charge (R.R.V 28). “[T]he trial

court is required, when punishment phase evidence of extraneous offenses or bad acts

evidence is admitted, to sua sponte instruct the jury on the reasonable-doubt standard

of proof concerning the extraneous offenses and bad acts.” Allen v. State, 47 S.W.3d

47, 50 (Tex. Crim. App. 2001). Trial counsel failed to object to the omission of the

instruction in the jury charge, the degree of the harm must be egregious to warrant

reversal. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Almanz, 686

S.W.2d at 171. The harm is evaluated considering the effect of the omission of the

instruction, not the effect of the extraneous evidence. Ellison, 86 S.W.3d at 227. The

Almanza Court explained that errors that result in egregious harm are errors that affect

“the very basis of the case,” divest the defendant of a “valuable right,” or “vitally

affect a defensive theory.” Almanza, 686 S.W.2d at 172.

          A proper harm analysis considers the following four factors when conducting

an Almanza harm analysis: (1) the jury charge itself; (2) the state of the evidence

including contested issues and the weight of the probative evidence; (3) counsel’s

arguments; and (4) any other relevant information in the entirety of the record. Id.;

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); TEX. CODE         OF   CRIM.

PROC. ANN. art. 36.19 (West 2012).

2
    Appellant’s brief at 5.


                                            7
       When applying the four factors to the present case, appellant was not

egregiously harmed by the omission of a beyond a reasonable doubt instruction

regarding extraneous offenses during the punishment phase of trial. Although the jury

charge did not include a burden of proof instruction on extraneous offenses, it did

include an instruction that the State must prove the enhancement paragraphs beyond

a reasonable doubt3 (C.R. 131). Further, the jury charge reiterated that the “burden of

proof in all criminal cases rests upon the State throughout the trial and never shifts to

the defendant” (C.R. 131). See Walton v. State, No. 14-06-00227-CR, 2007 WL 706582,

at * 3 (Tex. App.—Houston [14th Dist.] March 8, 2007, pet. ref’d) (mem. op., not

designated for publication) (holding that the defendant did not suffer egregious harm

when the trial court failed to give a burden of proof instruction regarding extraneous

offenses in the punishment phase of trial because the jury was instructed that “’[t]he

burden of proof in all criminal cases rests upon the State throughout the trial and

never shifts to the defendant’ [and t]here is no reason to believe that the jury did not

remember the reasonable doubt and burden of proof definitions and apply them to

the uncontested extraneous charge as well.”).

       Appellant faced a range of punishment of five to ninety-nine years in prison,

but received a twenty-five year sentence from the jury despite the State’s

3
  The full instruction told the jury that “[t]he prosecution has the burden of proving the allegations
in the penalty paragraphs beyond a reasonable doubt. The prosecution does not have to prove the
allegations in the penalty paragraphs beyond all possible doubt. The prosecution’s proof must
exclude all reasonable doubt concerning the penalty paragraphs” (C.R. 131).



                                                  8
recommendation of a thirty year sentence (C.R. 128, R.R.V 29). See Graves v. State, 176

S.W.3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. stricken) citing Tabor v.

State, 88 S.W.3d 783, 788-89 (Tex. App.—Tyler 2002, no pet.) (holding that failure to

give a reasonable doubt instruction regarding pen packets in the punishment phase of

trial was harmless considering the jury assessed a punishment below what the State

requested). The jury assessed punishment at twenty five years imprisonment, which is

well below the median of the range of punishment appellant was facing for being a

“backstabber” who attacked his own uncle who was in poor health (C.R. 128, 135,

R.R.V 36, 38). See Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.—San Antonio 2001,

pet ref’d) (reasoning that the defendant did not suffer egregious harm from failure to

give reasonable doubt instruction because the sentence was within the range of

punishment).

      During closing arguments in the punishment phase of trial, appellant

highlighted his mental health problems, and the lack of parental involvement in his

life (R.R.V 30). Appellant then urged that simply because he made a mistake “his life

should not be thrown away” (R.R.V 32). The State also urged the jury to consider “the

mitigation the defense has provided” and “the circumstances surrounding [appellant’s]

birth” when assessing appellant’s punishment (R.R.V 35-36). The State highlighted

appellant’s criminal history including his prior violent offenses, and although he may

not be highly intelligent, the evidence showed that he knew right from wrong (R.R.V

39-42). See Harper v. State, No. 05-04-00004-CR, 2004 WL 2601659, at * 2 (Tex.

                                          9
App.—Dallas Nov. 17 2004, pet. ref’d) (mem. op., not designated for publication)

(holding that the facts of the case and the defendant’s criminal history clearly

warranted the sentence of fifteen years, and thus the defendant could not have

suffered egregious harm from the absence of a reasonable doubt instruction regarding

extraneous offenses). The State mentioned appellant’s Facebook page, but when

asking the jury to sentence appellant to significant prison time did not do so by

emphasizing the complained of evidence of gang membership and drug use, but by

emphasizing the violent nature of the aggravated assault for which appellant had just

been convicted and urging that evidence as the main “reason to keep [appellant]

incarcerated for a longer period of time (R.R.V 41). See Allen v. State, 47 S.W.2d 47, 50

(Tex. App. –Fort Worth 2001, pet. ref’d) (holding that facts surrounding the offense

supported the twenty year sentence imposed, and thus the defendant did not suffer

egregious harm).

       Appellant was not harmed the introduction of the allegation that he was on

“Cush” when he committed the offense during the guilt-innocence phase of trial4,

thus appellant’s assertion that the evidence of appellant’s drug use was “mere

speculation” is irrelevant because this allegation was never mentioned in the

punishment phase of trial. See Guzman v. State, No. 04-02-00198-CR, 2003 WL

22336052, at *4 (Tex. App.—San Antonio Oct. 15, 2003, pet. ref’d) (mem. op., not


4
 The State did mention the allegation that appellant was under the influence of Cush in its closing
argument during the guilt-innocence phase of trial (R.R.III 157).


                                                 10
designated for publication) (holding that the defendant suffered no harm despite the

lack of beyond a reasonable doubt instruction when the State did not use the

extraneous evidence in the punishment phase of trial).

           When the State did spend time talking to the jury about the allegation that

appellant was a gang member, the State conceded that “[m]aybe [appellant is] just a

really big Astros fan or maybe he’s a Tango Blast which is, in the words of his aunt, a

prison gang” (R.R.V 42). Thus, the State did not assert that appellant was a gang

member as if it were a foregone conclusion, but rather presented it as an open

question for the jury to do with the information, what they wished. It cannot be said

that appellant suffered egregious harm when even the State conceded that the

allegation that appellant was a gang member may not be true. The State’s own

characterization of the gang evidence certainly undercuts appellant’s argument that

“[t]he State introduced [the evidence of the gang membership] merely to goad the jury

into making an improper reference of gang membership and inflame them into

assessing a greater sentence.”5 Compare Allen v. State, 253 S.W.3d 260, 267-68 (Tex.

Crim. App. 2008) (finding no egregious harm when the case for punishment was not

made clearly more persuasive by error) with Ellison v. State, 97 S.W.3d 698, 701 (Tex.

App. –Texarkana 2003, no pet.) (holding that the defendant was egregiously harmed

because the sentence could have been substantially affected by evidence that he

committed hate crimes).

5
    Appellant’s brief at 9.


                                            11
      Appellant was neither denied a fair or impartial trial nor suffered egregious

harm by the trial court’s failure to include a beyond a reasonable doubt instruction

regarding the extraneous allegations in the punishment phase of trial because the State

conceded in closing arguments that appellant may or may not be a gang member,

there was no mention during the punishment phase of trial of appellant’s drug use

during the commission of the offense, and the jury assessed a punishment below what

the State urged. See Huizar, 29 S.W.3d at 251. Appellant’s point of error should be

overruled.

                        




                                          12
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the conviction

should be affirmed.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas


                                                    /s/ Abbie Miles

                                                    ABBIE MILES
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    TBC No. 24072240
                                                    Miles_abbie@dao.hctx.net
                                                    Curry_Alan@daohctx.net



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document has

a word count of 3,663 words, based upon the representation provided by the word

processing program that was used to create the document.

                                                    /s/ Abbie Miles

                                                    Abbie Miles
                                                    Assistant District Attorney




                                         13
                           CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on July 7, 2015:


      Melissa Martin
      Assistant Public Defender
      1201 Franklin, 13th Floor
      Houston, Texas 77002


                                                      /s/ Abbie Miles

                                                      ABBIE MILES
                                                      Assistant District Attorney
                                                      Harris County, Texas
                                                      1201 Franklin, Suite 600
                                                      Houston, Texas 77002
                                                      (713) 755-5826
                                                      TBC No. 024072240
                                                      Miles_abbie@dao.hctx.net
                                                      Curry_Alan@dao.hctx.net


Date: July 7, 2015




                                           14
