Affirmed and Opinion Filed July 31, 2017




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-00649-CR

                               HARVEY RAMIREZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 397th Judicial District Court
                                  Grayson County, Texas
                              Trial Court Cause No. 063511

                             MEMORANDUM OPINION
                          Before Justices Bridges, Myers, and Boatright
                                   Opinion by Justice Bridges
       Harvey Ramirez appeals his conviction for making a false statement in an application for

a certified copy of a vital record. A jury convicted appellant, and the trial court sentenced him to

eight years’ confinement. In two issues, appellant argues the jury charge misapplied the mistake

of fact instruction, and the judgment inaccurately reflects a finding of true to the enhancement

paragraph. We affirm the trial court’s judgment.

       In September 2013, appellant was indicted on a charge of intentionally or knowingly

making a false statement on an application for a certified copy of “a vital record, to-wit: a birth

certificate.” In October 2015, the indictment was amended to allege appellant:

       PARAGRAPH I

       intentionally or knowingly made a false statement, to-wit: that the defendant was
       born in Laredo, Texas, in connection with Texas Birth Certificate number 075462
           and said statement was made on an application for a certified copy of a vital
           record, to-wit: a birth certificate,

           PARAGRAPH II

           intentionally or knowingly supply false information, to-wit: that the defendant
           was born in Laredo, Texas, or the defendant’s birth was connected to Texas Birth
           Certificate 075462, and this information was provided for use in the preparation
           of a certificate, record, report or amendment under Title 3 of the Health and
           Safety Code,

           PARAGRAPH III

           For the purpose of deception, intentionally or knowingly attempted to obtain,
           possess, or use a certificate, to-wit: a birth certificate or the certificate relates [sic]
           to the birth of another individual,

At trial, Steve Hamilton, an investigator with the Texas Health and Human Services

Commission, testified he was assigned to investigate allegations that appellant had submitted a

fraudulent birth record in connection with his application for a certified birth record. Along with

his application, appellant submitted his Texas identification card, his voter registration card1, his

social security card, and a birth certificate Hamilton determined was fraudulent. Specifically,

Hamilton identified a number on the birth certificate as belonging to another person born in

Dallas. Hamilton went to appellant’s house and left his contact information, and appellant called

him. Hamilton discussed with appellant his “concerns about the validity of that birth certificate

that he had attached as part of his application.” Hamilton invited appellant to meet and give

Hamilton the opportunity to look at the actual birth certificate rather than just the photocopy

appellant sent with his application. Appellant never showed Hamilton the birth certificate he

copied.

           Appellant testified his grandmother raised him in Mexico, but she told him he was born

in Laredo, Texas. Appellant’s grandmother gave him a birth certificate when he was thirteen

     1
       Appellant testified he had been issued a Texas ID card since 1988, and he “got that Texas ID by showing them that birth certificate.”
Appellant testified he then used his Texas ID to get a voter registration card. The voter registration card was valid from January 1, 2010 through
December 31, 2010.



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years old, but border patrol took it away when he was deported in 1989. Appellant testified he

got married under the name Constancio Enriquez. Appellant “asked an individual that had went

back there to bring [him] a birth certificate, and he brought [appellant] a birth certificate with

Constancio Enriquez. Appellant did this because “the copy – the one that [he] had with [him],

they were not accepting that one,” and he needed a birth certificate to get a marriage license.

       Neri Enriquez, appellant’s ex-wife, testified appellant used the names Harvey Ramirez

and Constancio Enriquez.        The couple’s marriage license showed appellant’s name as

Constancio Enriquez. Enriquez testified appellant provided the information that he was born in

January 1958 in Mexico when they sought to obtain birth certificates for their daughters.

Enriquez testified she had “no clear idea” where appellant was born, but “South Texas” was “the

only thing” she and appellant ever discussed. At the conclusion of Enriquez’ testimony the State

introduced into evidence appellant’s stipulation that he was convicted of a felony offense in 2004

and signed his name as both Harvey Ramirez and Constancio Enriquez.

       Lonzo Kerr, Deputy State Registrar for Vital Records, testified he assisted Hamilton with

his investigation. When Kerr saw appellant’s birth certificate, he noticed it said City of Laredo

and had a file number that was shorter than expected. Kerr testified appellant’s birth certificate

was an “abstracted” version, and such vital records never listed a city and only listed a county.

       Following Kerr’s testimony, counsel for appellant and the prosecutor discussed with the

trial judge the possibility of including a mistake of fact instruction in the jury charge. The trial

judge asked whose testimony was going to indicate there was a mistake of fact, and appellant’s

counsel stated “perhaps” appellant’s testimony would show a mistake of fact.

       The application portion of the jury charge provided, in part, the following:

       Now, if you find from the evidence beyond a reasonable doubt that on or about
       the 5th day of April, 2015 in Grayson County, Texas, the defendant Harvey
       Ramirez, did then and there intentionally or knowingly makes [sic] a false
       statement, to-wit: that the defendant was born in Laredo, Texas, in connection
                                                –3–
       with Texas Birth Certificate Number 75462 and said statement was made on an
       application for a certified copy of a vital record, to-wit: a birth certificate, then
       you will find the defendant guilty of False Record For/On Birth Certificate, as
       charged in the indictment.

       Unless you so find the evidence beyond a reasonable doubt, or if you have a
       reasonable doubt thereof, you will acquit the defendant and say by your verdict,
       “Not Guilty.”

       You are instructed that it is a defense to prosecution that a person through mistake
       of fact formed a reasonable belief about a matter of fact if his mistaken belief
       negated the kind of culpability required for the commission of the offense.

       A reasonable belief means a belief that would be held by an ordinary and prudent
       man in the same circumstances as the defendant.

       Now, if you find from the evidence beyond a reasonable doubt that on or about
       the 5th day of April, 2015 in Grayson County, Texas, the defendant Harvey
       Ramirez, did then and there intentionally or knowingly makes [sic] a false
       statement, to-wit: that the defendant was born in Laredo, Texas, in connection
       with Texas Birth Certificate Number 75462 and said statement was made on an
       application for a certified copy of a vital record, to-wit: a birth certificate, but you
       further find from the evidence, or have a reasonable doubt thereof, that at the time
       of such conduct by defendant, if any, that the defendant, through mistake formed
       a reasonable belief about a matter of fact, to-wit: that the birth certificate 75462
       incorporated in the defendant’s application was authentic, or if you have a
       reasonable doubt thereof, you will find the defendant not guilty.

       Before the charge was submitted to the jury, appellant’s counsel sought to include after

the language “that the birth certificate 75462 incorporated in the defendant’s application was

authentic” additional language “that [appellant] was told by his grandmother that he was born in

Laredo, Texas. Or that he believed his grandmother’s statement that he was born in Laredo,

Texas.” The trial court asked “if his grandmother told him and he believed that, that he was still

allowed to submit other documents that were not authentic or genuine?” or that “somehow the

fact that his grandmother told him that, that allowed him to submit false documents?”

Appellant’s counsel responded that appellant was not charged with submitting a false document

but was charged with intentionally and knowingly making a false statement that he was born in

Laredo, Texas. The prosecutor responded that the indictment was amended, and “the language is

that [appellant] was born in Laredo, Texas . . . In connection with Texas Birth Certificate
                                           –4–
75462.” The trial court denied appellant’s request. The jury convicted appellant of making a

false statement in an application for a certified copy of a vital record. The trial court sentenced

appellant to eight years’ confinement, and this appeal followed.

         In his first issue, appellant argues the court’s charge misapplied the mistake of fact

instruction. Specifically, he argues the trial court erred in refusing to include his requested

addition to the mistake of fact application paragraph, and this exclusion “gave greater weight to

the State’s theory and overshadowed the nature of the conduct of which appellant was charged--

making a false statement about his place of birth.”

         Appellate review of claims of jury-charge error first involves a determination of whether

the charge was erroneous and, if it was, then second, an appellate court conducts a harm analysis,

with the standard of review for harm being dependent on whether error was preserved for appeal.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Because we conclude that the

charge was not erroneous in this case, we do not conduct a harm analysis.

         The purpose of the trial court’s jury charge is to instruct the jurors on all of the law

applicable to the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); TEX.

CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The application paragraph is the portion of the

jury charge that applies the pertinent penal law, abstract definitions, and general legal principles

to the particular facts and the indictment allegations. Vasquez, 389 S.W.3d at 366. Therefore, a

jury charge with an application paragraph that incorrectly applies the pertinent penal law to the

facts of a given case is erroneous. See Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App.

2004).

         A defendant is entitled to an instruction on any defensive issue raised by the evidence,

whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how

the trial court views the credibility of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex.

                                                –5–
Crim. App. 2008). The statute governing the mistake-of-fact defense provides that it is “a

defense to prosecution that the actor through mistake formed a reasonable belief about a matter

of fact if his mistaken belief negated the kind of culpability required for commission of the

offense.” TEX. PENAL CODE ANN. § 8.02(a) (West 2011). When he raises evidence of a

mistaken belief as to the culpable mental state of the offense, a defendant is entitled to an

instruction on mistake of fact upon request. Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim.

App. 2013). “By ‘kind of culpability’ is meant ‘culpable mental state.’” Id. (quoting Beggs v.

State, 597 S.W.2d 375, 378 (Tex. Crim. App. 1980)).

       As the prosecutor argued at trial, the indictment alleged appellant intentionally or

knowingly made a false statement in connection with Texas Birth Certificate Number 75462 and

said statement was made on an application for a certified copy of a vital record, to-wit: a birth

certificate. Whether or not appellant believed his grandmother’s statement that he was born in

Laredo, this belief was only exculpatory if it led appellant to believe further that the birth

certificate he submitted with his application was authentic. This was the issue submitted to the

jury. If appellant did not believe the birth certificate was authentic, then his belief that he was

born in Laredo did not change the fact that he submitted a fraudulent birth certificate falsely

stating that he was born in Laredo. We overrule appellant’s first issue.

       In his second issue, appellant argues the judgment incorrectly reflects a finding of true to

the enhancement paragraph alleging a prior possession of a controlled substance conviction. In

making this argument, appellant concedes he pleaded true to the enhancement, but he argues

there is nothing in the record to indicate that the trial court found the enhancement true because

the trial court made no explicit pronouncement that it was true and the trial court’s sentence was

within the range of a third-degree felony.




                                               –6–
         Prior to sentencing, the trial judge asked if there were “any enhancements in the

indictment that I didn’t ask [appellant] to plead to?” The prosecutor stated there was a notice of

enhancement, and it was her understanding “that the defendant is pleading true to it today.” The

trial judge asked appellant how he pled to the allegation he had a prior conviction for possession

of a controlled substance, and appellant answered, “True.”         The trial judge did not orally

pronounce a finding that appellant pled true to the enhancement.

         A trial court is not required to make an oral pronouncement of its findings on

enhancements when it assesses punishment. See Meineke v. State, 171 S.W.3d 551, 557 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (trial court not required to make oral

pronouncement of its findings on enhancements). Although the better practice is for the trial

court to announce orally its enhancement findings before sentencing, the failure to do so does not

amount to error as long as the record reflects that the court found the enhancements true and

sentenced the defendant accordingly. See id.; Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d). A trial court makes an implied finding of true to an

enhancement allegation when the record establishes the truth of that allegation. Torres v. State,

391 S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

         Although the trial judge did not orally pronounce a finding of true to the enhancement

paragraph, the judgment correctly states a finding of true. Because the trial court had no duty to

make an oral finding of true or not true on the enhancement paragraph, we conclude the finding

of true recited in the written judgment of conviction is not inconsistent with the trial court's oral

silence concerning the finding. See Seeker, 186 S.W.3d at 39. We overrule appellant’s second

issue.




                                                –7–
       We affirm the trial court’s judgment.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

160649F.U05




                                               –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

HARVEY RAMIREZ, Appellant                          On Appeal from the 397th Judicial District
                                                   Court, Grayson County, Texas
No. 05-16-00649-CR        V.                       Trial Court Cause No. 063511.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Myers and Boatright participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 31, 2017.




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