                                MEMORANDUM OPINION
                                        No. 04-09-00323-CR

                                         Roger RAMIREZ,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-4291
                          Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen Angelini, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: November 24, 2010

REVERSED IN PART, MODIFIED IN PART, AFFIRMED IN PART

           This appeal arises from Appellant Roger Ramirez’s conviction for felony murder,

manslaughter, and failure to stop and render aid following an accident resulting in the death of

Ryan Stephens. Based on Ramirez’s plea of true to the two enhancement allegations, Ramirez

was sentenced to life imprisonment in the Institutional Division of the Texas Department of

Criminal Justice, and fined $10,000.00 for each count. On appeal, Ramirez argues: (1) the trial

court’s imposition of a fine is not authorized by the habitual felony offender statute; (2) the trial
                                                                                       04-09-00323-CR


court violated Ramirez’s right to be free from double jeopardy in entering a judgment convicting

Ramirez of felony murder and manslaughter; (3) the trial court erred in admitting the graphic

photograph depicting Mr. Stephens’ injuries; and (4) the evidence is factually insufficient to

support the jury’s verdict. We reverse the trial court’s judgment in part, modify the trial court’s

judgment in part, and affirm the trial court’s judgment in part.

                                       FACTUAL BACKGROUND

          On November 17, 2006, Ryan Stephens was trimming trees at a residence on Cadillac

Drive when he was struck and killed by a Dodge pickup truck. At the time of the accident, Mr.

Stephens was sharpening chainsaws and his body was severely disfigured in the accident. The

Dodge pickup that struck Mr. Stephens subsequently ran into a tree, backed away, and sped

down the road less than a mile before being abandoned. Two of Mr. Stephens’ employees were

also at the residence at the time of the incident, but neither employee could identify the driver of

the vehicle. The truck in question had been reported stolen earlier that same morning from a

motel parking lot. A video of the theft showed two individuals stealing the truck, but lacked any

detail.

          Mr. Stephens’ employee, Roberto Carlos Sierra Luna, described the assailant as a

Hispanic man with a mustache. Another witness testified that she saw the truck traveling at an

excessive speed, but could not identify anyone in the vehicle. An additional witness a few

blocks away described a man running from the direction of Cadillac Drive as a Hispanic male,

5’6” or 5’7”, in his late thirties or forties, with a beard with gray spots. A video obtained from a

nearby local business could not provide a clear view of the individual in question.

          The officers arriving at the accident scene collected several items for testing, including a

stain from the deployed airbag. Subsequent DNA tests consistent with Ramirez’s DNA profile,



                                                  -2-
                                                                                   04-09-00323-CR


along with a Crimestoppers tip, led officers to conclude that Ramirez was the driver of the truck

that struck Mr. Stephens. During questioning and at trial, Ramirez admitted to being involved in

the theft of the Dodge truck and that he was, in fact, in the vehicle during the early morning

hours on the day in question. Ramirez further relayed that he was using drugs while sitting in the

truck and that the airbag had deployed prior to his being in the truck.

         Ramirez testified in his own defense, adamantly denying that he was driving the truck

when Mr. Stephens was killed. To support his allegations, Ramirez offered testimony supported

by several defense witnesses that he was reporting to his parole officer at the time of the

accident. The State, however, also presented witnesses, including two parole officers, that

testified that Ramirez did not report on the day of the accident, but instead, reported three days

later.

         The jury charge alleged that Ramirez committed felony murder, manslaughter,

unauthorized use of a motor vehicle, and failure to stop and render aid. The jury returned a

guilty verdict on all counts.     The trial court set aside the jury’s finding of guilt on the

unauthorized use of a motor vehicle and entered a judgment finding Ramirez guilty of felony

murder, manslaughter, and failure to stop and render aid. This appeal ensued.

                              DOUBLE JEOPARDY & ILLEGAL FINE

         The State concedes that the conviction and life sentence for both felony murder and

manslaughter violate Ramirez’s rights against double jeopardy and that the manslaughter

conviction should be vacated, and the felony murder conviction upheld. See Ervin v. State, 991

S.W.2d 804, 816–17 (Tex. Crim. App. 1999); Bigon v. State, 252 S.W.3d 360, 369–70 (Tex.

Crim. App. 2008); (prohibiting conviction for felony murder and manslaughter stemming from

the same conduct and same offense); Ex parte Cavazos, 203 S.W.3d 333, 338–39 (Tex. Crim.



                                                -3-
                                                                                   04-09-00323-CR


App. 2006) (authorizing appellate courts to affirm the conviction on the most serious offense and

vacate the other conviction).

       Additionally, the State concedes that the habitual felony offender statute does not

authorize the assessment of a fine. See TEX. PENAL CODE ANN. § 12.42(d) (West 2009).

Ramirez, however, argues that the assessment of a fine requires this court to remand the matter

for a new sentencing hearing. The State argues that the judgment should be reformed because

the imposition of a fine was the only penalty outside the proper punishment range. This Court

has the power to modify incorrect judgments when we have the necessary data and information

to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.

1993); see, e.g., McCray v. State, 876 S.W.2d 214, 217 (Tex. App.—Beaumont 1994, no pet.)

(modifying a judgment containing a sentence greater than the applicable range of punishment).

Accordingly, we modify the trial court’s judgment to delete the $10,000.00 fine for each

conviction.

                                ADMISSION OF THE PHOTOGRAPH

       During its case-in-chief, the State offered a photograph, taken immediately after the

accident, depicting the severe damage to Mr. Stephens’ body. Ramirez argues that the probative

value of the evidence was low compared to the prejudicial effect of the photograph. See TEX. R.

EVID. 403.

A. Standard of Review

       A trial court’s ruling on the admission of evidence is reviewed for an abuse of discretion.

See State v. Mechler, 153 S.W.3d 435, 438–39 (Tex. Crim. App. 2005). A trial court abuses its

discretion when it acts arbitrarily or unreasonably, and without reference to guiding rules and

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). An appellate



                                              -4-
                                                                                     04-09-00323-CR


court views the evidence in the light most favorable to the trial court’s ruling and affords almost

total deference to the trial court’s findings of fact that are supported by the record. Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This Court will not reverse a trial court’s

findings so long as the ruling is “within the zone of reasonable disagreement.” Mechler, 153

S.W.3d at 440.

B. Texas Rule of Evidence 403

       Texas Rule of Evidence 403 permits the exclusion of relevant evidence if its probative

value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A

review under Rule 403 requires a trial court to consider: the probative value of the evidence; the

evidence’s potential to impress the jury in some irrational, yet indelible way; the time required to

develop the evidence; and the proponent’s need for the evidence. Id.; Shuffield v. State, 189

S.W.3d 782, 787 (Tex. Crim. App. 2006). More specifically, with regard to photographs, several

additional factors are considered: the number, size, gruesome nature, and the color of the

photographs; the ability of the State to prove the evidence by other means; and the circumstances

unique to the individual case. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992);

see also Davis v. State, 313 S.W.3d 317, 330 (Tex. Crim. App. 2010); Erazo v. State, 144

S.W.3d 487, 489–90 (Tex. Crim. App. 2006). As the Erazo Court explained, “If there are

elements of a photograph that are genuinely helpful to the jury in making its decision, the

photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh

the helpful aspects.” Erazo, 144 S.W.3d at 491–92.

C. Analysis

       There is no dispute that only one photograph is in question. It was the only photograph

used to identify Mr. Stephens at the scene, and the photograph portrays a color depiction of the



                                                -5-
                                                                                    04-09-00323-CR


very violent end to Mr. Stephens’ life. See Narvaiz, 840 S.W.2d at 429. As such, there is little

question that the photograph would have had a serious impact on the jury. See id. Ramirez

argues that the photograph had little, if any, probative value because the only issue before the

jury was whether Ramirez was driving the Dodge truck when it struck Mr. Stephens.

       We disagree. The trial court could have reasonably determined that the photograph was

probative of Mr. Stephens’ identity and the manner in which he was killed. The trial court could

have also reasonably determined that the photograph was probative of an essential element of the

crime of failure to stop and render aid. Failure to stop and render aid requires the State to prove

that the defendant knew the circumstances surrounding his conduct. See TEX. TRANSP. CODE

ANN. § 550.021 (West 2009); St. Clair v. State, 26 S.W.3d 89, 98 (Tex. App.—Waco 2000, pet.

ref’d). More specifically, the State was required to prove that Ramirez knew that an accident had

occurred, and that a victim suffering an injury required him to “stop, return or remain” at the

scene. See Huffman v. State, 267 S.W.3d 902, 909 (Tex. Crim. App. 2008). Thus, the picture

was probative of the elements upon which the jury was called to decide.

       Moreover, the trial court could have reasonably determined that the risk of undue

prejudice was low. The photograph was not enlarged or viewed on a video screen in open court.

The photograph was not a close up of the injuries, but instead a representation of how Mr.

Stephens would have appeared to someone standing a few feet away from the accident scene.

Finally, the five-inch by eight-inch photograph was offered to the jury, and individually passed

to the jurors, allowing each juror to view the picture as long as each felt necessary. We cannot

conclude that it was outside the zone of reasonable disagreement for the trial court to admit the

photograph. Thus, the trial court did not abuse its discretion. See TEX. R. EVID. 403; Mechler,

153 S.W.3d at 438–39.



                                               -6-
                                                                                     04-09-00323-CR


                                     FACTUAL SUFFICIENCY

       Ramirez next argues that the evidence is factually insufficient to support the jury’s

finding of guilt.   The question of factual sufficiency in the present case focuses on the

identification of Ramirez as the driver of the vehicle that struck Mr. Stephens. The State’s case

relies on DNA evidence, witness testimony, alibi witness testimony, and circumstantial evidence.

A. Standard of Review

        Recently, the Court of Criminal Appeals has determined that there is no meaningful

distinction between a legal-sufficiency standard under Jackson v. Virginia, 443 U.S. 307 (1979),

and a factual sufficiency review under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

We, therefore, apply the single legal sufficiency standard of review as set forth in Jackson v.

Virginia, which is whether, considering all the evidence in the light most favorable to the verdict,

was the jury rationally justified in finding guilt beyond a reasonable doubt. Id. at 319. The

standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v.

State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

B. Evidence of Identity

       Ramirez alleges that the evidence is insufficient based on lack of identification. More

specifically, Ramirez claims the State’s case is based on indistinct descriptions of the truck’s

driver, an unclear video, an anonymous caller providing the name “Ramirez,” and DNA evidence

that Ramirez was in the truck prior to the accident. Ramirez argues that his alibi witness and the

State’s failure to prove that he was injured make the jury’s verdict insufficiently supported by the

evidence. Although the State relied entirely on circumstantial evidence, we note that the identity

of the perpetrator may be proven by either direct or circumstantial evidence. See Earls v. State,

707 S.W.2d 82, 85 (Tex. Crim. App. 1986).



                                                -7-
                                                                                 04-09-00323-CR


       1. DNA Evidence

       After collecting evidence swatches from the deployed airbag in the truck, the sample was

tested by Erin Reat, the Quality Assurance Manager for the Bexar County Criminal Investigation

Laboratory. In January of 2007, Reat developed a genetic profile from the swatch removed from

the airbag and, in March of 2007, the profile was compared to DNA taken from Ramirez. Reat

testified that Ramirez’s DNA profile “was expected to be found once in a population of one

quadrillion people.” Reat opined that “based on the rarity of [Ramirez’s] sample,” that the DNA

collected from the airbag “originated with Roger Ramirez.”

       Ramirez did not contest the DNA results, but did contest the circumstances surrounding

how his DNA came to be on the airbag. San Antonio Police Detective Adam Zeldes testified

that based on (1) the undisturbed powder residue on the dashboard of the truck, and (2) the

manner in which the airbag was draped over the steering wheel making the vehicle difficult to

maneuver, he believed that the evidence supported that the truck’s airbag had “recently

deployed.” In response, Ramirez explained that he was in the truck in the late evening to early

morning hours snorting methamphetamines and that he may have coughed or spit on the airbag.

He was adamant, however, that the airbag had deployed when the two men that stole the vehicle

hit the steering wheel with a sledgehammer. Yet, Detective Zeldes opined that the airbag would

have only deployed from an external force on the vehicle, not an impact on the steering wheel

itself. Moreover, Sergeant Mark Hubbard testified that contrary to Ramirez’s allegations, there

were no signs that the steering wheel was hit with a sledgehammer.

       Furthermore, Reat testified that the soiling on the airbag appeared “shaped somewhat as a

face” and that the stain was consistent with a mouth coming into contact with the airbag. Other

witnesses provided additional support for the State’s case.      Mr. Luna, one of Stephens’



                                              -8-
                                                                                     04-09-00323-CR


employees, testified that he was approximately six feet away from the truck at the time of the

accident. He testified that he ran toward the truck immediately after impact, and saw the airbag

inflated; this suggests that the airbag deployed as a result of the impact with Mr. Stephens.

       2. Alibi

       Ramirez next argues that the descriptions provided by the State’s witnesses were vague

and inconclusive. More specifically, no one identified Ramirez as the driver of the vehicle. Kay

Spears testified that as she was driving down Cadillac Drive, she looked up and saw a truck

approaching her at an extremely high rate of speed. She further explained she was able to see

only the truck, and could not recognize anyone in the vehicle or even testify as to how many

people were in the vehicle. Additionally, a video collected from a nearby gas station did not

provide a clear picture of the suspect.

       Furthermore, Ramirez testified that he was not on Cadillac Drive at the time of the

accident, but was instead on Perrin Beitel Road reporting to his parole officer. Ramirez testified

that Monica Martinez picked him up and that they drove to the parole office. According to

Ramirez, when he arrived at the parole office, he was informed that his parole officer, John

Rangel, was not at the office. Ramirez testified that a different parole officer told him that he

would have to reschedule his appointment for Monday, November 20. He also testified that he

was at the parole office for about fifteen to twenty minutes and then he left. Denise Vasquez,

Ramirez’s niece, corroborated Ramirez’s testimony and relayed that she followed Ramirez to the

parole office where she waited for approximately thirty to forty-five minutes, and that Ramirez

was in the parole office the entire time.

       Several parole officers, however, contradicted this testimony. Julie Morales and John

Rangel both testified that Ramirez did not report as directed on November 17, the day in



                                                -9-
                                                                                   04-09-00323-CR


question, but instead reported on Monday, November 20. The sign-in sheet, which did not

include Ramirez’s signature, was admitted into evidence. More specifically, Rangel reported

that he was, in fact, at the parole office on November 17 from 7:30 a.m. to 10:30 a.m. and

reiterated that Ramirez did not appear on that day. In response, Ramirez explained that he was

required to report weekly, and that if he had not appeared on November 17, a rapid response

notice would have been issued, but yet no notice was issued. On redirect, though, Morales

explained that because November 17 was a Friday, the rapid response would not have issued

before Monday. Thus, because Ramirez reported on Monday, no rapid response notice was

issued.

          Ramirez further testified that the fact he had a “scheduled appointment” on November 20

was evidence that he was at the parole office on November 17. More specifically, Ramirez

argued that the “scheduled appointment” had to be made in person. Once again, however,

Morales explained that Ramirez could have made the “scheduled appointment” either in person

or on the phone. Morales relayed that there was no record to show how the appointment was

rescheduled.     Thus, Morales explained the “scheduled appointment” was not evidence of

Ramirez’s appearance at the parole office on November 17.

          3. Ramirez’s Alleged Injuries

          Rangel testified that when Ramirez appeared on November 20, Ramirez was injured and

on crutches. Conversely, Ramirez, Vasquez, Monica Ramirez, and Elizabeth Madero (Ramirez’s

ex-wife) all testified that Ramirez was not on crutches in November of 2006, but that he was

injured during a roofing accident in February of 2007. The defense argued that Rangel was

simply confused about the dates in question. The State acknowledges that there is no direct

evidence that the driver of the vehicle was injured in the accident. Thus, the State argues that



                                               - 10 -
                                                                                    04-09-00323-CR


Rangel’s testimony that Ramirez was on crutches when he reported on November 20 was simply

evidence that substantiated Rangel’s memory of his meeting with Ramirez on that day.

C. Analysis

       All of Ramirez’s sufficiency arguments touch on the jury’s role as the fact-finder. We

remain mindful that the jury is the sole judge of the weight and credibility of the evidence and is

entitled to resolve conflicts in the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West

2007); Johnson, 23 S.W.3d at 7. The DNA evidence, coupled with the contradictory alibi

testimony, provides sufficient support for a jury to reasonably infer that Ramirez was on Cadillac

Drive at the time of the accident, was in the truck when the airbag deployed, and was not at the

parole office at the time of the accident. See Earls, 707 S.W.2d at 85. The jury apparently

resolved the conflicting testimony in the State’s favor. Based on a review of “the evidence in the

light most favorable to the prosecution,” we conclude a rational jury could find beyond a

reasonable doubt that Ramirez was guilty of felony murder. See Jackson, 443 U.S. at 319. Thus,

the evidence is sufficient to support the conviction.

                                           CONCLUSION

       Because the probative value of the photograph of the victim was not substantially

outweighed by the prejudicial effect, we conclude the trial court did not abuse its discretion in

admitting the photograph. Additionally, although the defense presented evidence that Ramirez

was not the driver of the Dodge pickup truck that struck and killed Mr. Stephens, the State

presented evidence of Ramirez’s DNA on the deployed airbag and evidence negating his alibi

testimony. As such, we cannot say the evidence is insufficient to support the jury’s verdict.

Finally, based on the State’s concessions, a conviction of both the felony murder and the

manslaughter offenses violate Ramirez’s rights against double jeopardy, and the manslaughter



                                                - 11 -
                                                                                 04-09-00323-CR


conviction should be set aside and the felony murder conviction upheld. Furthermore, the

habitual felony offender statute does not authorize the assessment of a fine. Accordingly, we

reverse the trial court’s judgment with regard to the manslaughter conviction and reform the

judgment to delete the assessment of a fine. The judgment of the trial court is affirmed in all

other aspects.


                                                Rebecca Simmons, Justice

DO NOT PUBLISH




                                             - 12 -
