                                                               PD-1155-15
                                            COURT OF CRIMINAL APPEALS
                                                             AUSTIN, TEXAS
                                            Transmitted 9/2/2015 10:18:40 PM
                                              Accepted 9/8/2015 12:44:37 PM
           NO.   __________________                           ABEL ACOSTA
                                                                      CLERK

 TO THE COURT OF CRIMINAL APPEALS OF TEXAS



       Thomas Ramirez, Jr., Appellant             September 8, 2015
                     v.
        The State of Texas, Appellee



                 ***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                 ***************

          FROM THE COURT OF APPEALS

     SECOND APPELLATE DISTRICT OF TEXAS

              FORT WORTH, TEXAS

             NO.   02-13-00540-CR

               TARRANT COUNTY
          TRIAL COURT NO. 1260933R



                                      Brian K. Walker
                                 STATE BAR # 24043978
                               222 W. Exchange Avenue
                                 Fort Worth, TX 76164
                                 (817) 625-2233 PHONE
                             (817) 887-5981 FACSIMILE
                            brian@walkerattorneys.com
                               Attorney for Appellant


         ORAL ARGUMENT NOT REQUESTED
                        1
                    TABLE OF CONTENTS
                                                   PAGE
TABLE OF CONTENTS    . . . . . . . . . . . . . . .    2
INDEX OF AUTHORITIES    . . . . . . . . . . . . . . 3
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . 3
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . . 5
QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . 6
ARGUMENT (LESSER INCLUDED OFFENSE)      . . . . . . . 7
PRAYER   . . . . . . . . . . . . . . . . . . . .     17
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 18
CERTIFICATE OF COMPLIANCE . . . . . . . . . . .      18




                            2
                 INDEX OF AUTHORITIES

                         CASES

Daniels v. State,
     313 S.W.3d 429, 432
     (Tex. App. – Waco 2010, pet. ref’d) . . . . . 9

Flores v. State,
     245 S.W.3d 432 (Tex. Crim. App. 2008) . . . . 9

Hall v. State,
     225 S.W.3d 524
     (Tex. Crim. App. 2007) . . . . . . . 7, 8, 9, 10

Miles v. State,
     259 S.W.3d 240, 247
     (Tex. App. – Texarkana 2008, pet. ref’d.) . . 9

                       STATUTES


Tex. Pen. Code Ann.,
     § 22.05 (Vernon 2011). . . . . . . . . . 29, 30




         STATEMENT REQUESTING ORAL ARGUMENT

    Oral argument is not requested.




                           3
             IDENTITY OF PARTIES AND COUNSEL

    The following is a complete list of all
parties, as well as the names and addresses of all
counsel.

Appellant:                  Thomas Ramirez, Jr.

Trial Counsel               Brian Salvant
                            Attorney at Law
                            610 E. Weatherford St.
                            Fort Worth, Texas 76102

Appellate                   Brian K. Walker
Attorney for Appellant      Attorney at Law
                            222 W. Exchange Ave.
                            Fort Worth, Texas 76164

Appellee                    The State of Texas

Trial Attorneys             Robert Huseman
for Appellee                Allenna Bangs
                            Tarrant County Assistant
                            District Attorney
                            401 W. Belknap
                            Fort Worth, Texas 76196

Appellate Attorney for      Charles M. Mallin
Appellee                    Assistant Tarrant County
                            District Attorney
                            401 W. Belknap
                            Fort Worth, Texas 76196


Trial Judge                 Honorable Everett Young
                            297th District Court
                            Tarrant County, Texas




                            4
    All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
THOMAS RAMIREZ, JR.,
      Appellant-Applying for Review
V.
THE STATE OF TEXAS,
      Appellee


                      ************
     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                      ************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:

                 STATEMENT OF THE CASE

      This appeal has resulted from appellant’s

conviction for murder.    (C.R. Vol. 1, p. 133).

Appellant proceeded to jury trial on Tuesday,

October 22nd.    (R.R. Vol. 1, p. 3).    After four days

of trial on guilt/innocence, both sides rested and

closed.   (R.R. Vol. 7, p. 43).      The jury found

appellant guilty on one count of felony murder on

Friday, October 25th.    Appellant’s trial on

punishment took place the following Monday, October

                            5
28th.   (R.R. Vol. 1, p. 3).   The jury assessed a

sentence of life in the Texas Department of

Criminal Justice – Institutional Division.    (R.R.

Vol. 8, p. 150).

    STATEMENT OF PROCEDURAL HISTORY OF THE CASE

    The Court of Appeals rendered its decision and

delivered its written non-published opinion on

August 6, 2015.    The deadline for filing a Petition

for Discretionary Review is September 5, 2015.

            QUESTIONS PRESENTED FOR REVIEW

    The trial court erred by denying appellant’s

request for a lesser-included offense instruction

for deadly conduct.   There was ample evidence that

appellant may have been only guilty of that

offense. Did the Court of Appeals (COA) err by

overruling this this issue and finding that “if the

jury found Appellant had engaged in the deadly

conduct, the lesser-included offense, it had no

rational basis for acquitting Appellant of the

greater offense of felony murder.” (Appeals Court

Opinion p. 17)?


                           6
                      ARGUMENT

     During the jury charge conference, appellant

moved the court to include a question pertaining to

the lesser-included offense of deadly conduct.

(R.R., Vol. 7, p. 45).   Apparently a discussion

took place off the record in chambers so there is

no record why the State objected to the inclusion

of the deadly conduct lesser-included offense

instruction and there is no record why the trial

judge denied appellant’s request.   (R.R., Vol. 7,

p. 46).   Hall v. State is the controlling authority

in Texas on whether or not an offense constitutes

an actual lesser-included offense and whether or

not a court is required to charge a jury on a

particular lesser-included offense.   See also Hall

v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).

According to Hall, there is a two-part test in

determining whether or not a lesser-included

offense instruction is necessary.   The first step

is to determine whether or not the proferred lesser

offense is in fact a lesser-included offense by


                          7
comparing the elements of the greater offense, as

pled in the indictment, with the elements in the

lesser offense as found in the penal code statute.

See Hall v. State, 225 S.W.3d at 535, (adopting the

“pleadings approach” or “cognate-pleadings

approach” as “the sole test for determining in the

first-step whether a party may be entitled to a

lesser-included-offense instruction”.)   The second

step is to determine whether there is evidence

“adduced at trial” that supports giving the

instruction by asking whether there is “some

evidence in the record that would permit a jury

rationally to find that if the defendant is guilty,

he is guilty only of the lesser-included offense.”

Hall goes on to say that “anything more than a

scintilla of evidence may be sufficient to entitle

a defendant to a lesser charge.”   Hall v. State,

225 S.W.3d at 536.   Courts have found that deadly

conduct can be a lesser-included offense for

various theories of murder.   In fact, this

honorable court has found that deadly conduct can

be a lesser-included offense for capital murder
                          8
while applying the “cognate-pleadings approach”

mentioned above.    Flores v. State, 245 S.W.3d 432

(Tex. Crim. App. 2008).    Courts applying the

“cognate-pleadings approach” have also found that

deadly conduct is a lesser included offense for

felony murder.     See Daniels v. State, 313 S.W.3d

429, 432 (Tex. App. – Waco 2010, pet. ref’d); Miles

v. State, 259 S.W.3d 240, 247 (Tex. App. –

Texarkana 2008, pet. ref’d.). However, it is still

incumbent to analyze this particular case through a

Hall “cognate-pleadings test”.    In order to meet

the first step of Hall, an element-by-element

analysis must be conducted by first setting out

what was actually asserted in the indictment and

then comparing what elements are found in the

lesser offense statute.    The theory of felony

murder in which Appellant was ultimately convicted

can be found in Count One of the indictment handed

down by the grand jury.    That reads that Thomas

Ramirez, Jr. did “then and there intentionally or

knowingly commit or attempt to commit an act

clearly dangerous to human life, namely, discharge
                            9
a firearm at or in the direction of a habitation or

building, which caused the death of Ivan Daniel

Valenzuela, and the said Defendant was then and

there in the course of or immediate flight from the

commission or attempted commission of a felony, to-

wit: Unlawful Possession of a Firearm by a Felon.”

(C.R., Vol. 1, p. 11).   Under Texas Penal Code §

22.05, there are two types of deadly conduct.     The

misdemeanor variation lists the elements as being

that “a person commits an offense if he recklessly

engages in conduct that places another in imminent

dangerous of serious bodily injury”.   The third-

degree felony variation lists the elements as being

that “a person commits an offense if he knowingly

discharges a firearm at or in the direction of: one

or more individuals; or a habitation, building, or

vehicle and is reckless as to whether the

habitation, building, or vehicle is occupied.”

Tex. Penal Code. Sec. 22.05.   Counsel did not

specify which he was requesting but one can clearly

assume that he was referencing the third-degree

felony variation. (R.R., Vol. 7, p. 45).    It would
                         10
also be a logical assumption that this variation of

deadly conduct would have been the indicted offense

if appellant had not had a felony record.    Applying

the element by element analysis there is no

question that the first part of the Hall test is

met.   The COA also assumed for purposes of their

analysis “that Appellant met the first prong.”

(Appeals Court Opinion P. 16).     Count One of the

indictment was basically a deadly conduct charge of

the third-degree felony variation with the

additional language pertaining to unlawful

possession of a firearm by a felon.    The trial

court should have instructed the jury on deadly

conduct because the second part of Hall

jurisprudence was met as well.    In order for the

second test to be met, the trial court only had to

find some evidence in the record that would permit

the jury to rationally find that if the defendant

was guilty, he was only guilty of the third-degree

variation of deadly conduct.     Again, the third-

degree variation of deadly conduct pertains to

instances where an actor discharges a firearm in
                          11
the direction of a habitation.   The jury obviously

believed that Appellant was driving through the

neighborhood shooting a pistol, and they could have

rationally found that if appellant was guilty of

something, it was only the lesser-included offense

of deadly conduct.   After all, there is lacking

proof that appellant actually caused the death of

Ivan Valenzuela.   This is presumably the reason the

State did not want the instruction made a part of

the charge, because they were afraid that the jury

might find appellant guilty of only deadly conduct.

The COA, however, found that “if the jury found

Appellant had engaged in the deadly conduct, the

lesser-included offense, it had no rational basis

for acquitting Appellant of the greater offense of

felony murder.” (Appeals Court Opinion p. 17).

However, this is illogical.    In fact, there was

evidence presented at trial that no firearm was

ever found and no actual ballistics testing could

be done to show a correlation between the bullet

that killed Ivan Venezuela and a firearm possessed

and/or allegedly used by appellant.   (R.R. Vol. 6,
                          12
p. 120).     Furthermore, at least one .25 caliber

shell casing was found in the street in front of

the victim’s apartment that differed from the .40

caliber shell casings that were found in greater

number which tends to show that other actors had

been shooting in the area.       (R.R. Vol. 5, p. 102).

Also, the testifying coroner testified that the

bullet traveled “slightly downward” from left to

right toward the back of the victim’s head. (R.R.

Vol. 6, p. 142).     It would be seemingly impossible

for a bullet shot from a vehicle in the street to

travel through the air up to a second story

apartment and to then change course in a downward

direction just before, or just after, it entered

the victim’s head.    All of these things could lead

a factfinder to believe that Appellant was only

guilty of deadly conduct but not necessarily felony

murder.    The jury could have easily concluded that

Appellant was driving around shooting aimlessly in

the air but someone else had shot and killed Ivan

Venezuela.


                            13
For those reasons, and all of the reasons above,

the trial court erred by denying appellant’s

request for a permissible instruction on the

lesser-included offense of deadly conduct and the

COA erred by not overturning on this issue.    The

COA also opined that “there was not a scintilla of

evidence that Ivan’s death was caused by anything

other than Appellant’s discharging a firearm while

being a felon in possession of a firearm.   (Appeals

Court Opinion P. 18).   This makes no sense taking

into consideration the angle of the trajectory, the

various types of shell casings found in the area,

and the lack of connecting ballistics in the case.

                        PRAYER

    WHEREFORE, PREMISES CONSIDERED, THOMAS RAMIREZ,

JR., Appellant, prays that this Petition for

Discretionary Review be granted; that this case be

submitted to the Court; that the Court of Appeals’

decision be reversed and for such other relief for

which he shows himself entitled.

                          14
                     Respectfully Submitted,

                     /s/ Brian K. Walker
                     By: BRIAN K. WALKER
                     222 W. Exchange Ave.
                     Fort Worth, Texas 76164
                     (817) 625-2233 Phone
                     (817) 887-5981 Fax
                     Attorney for Appellant
                     brian@walkerattorneys.com


              CERTIFICATE OF SERVICE
    A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 2nd day of September, 2015.

                              /s/ Brian K. Walker
                              BRIAN K. WALKER


             CERTIFICATE OF COMPLIANCE
    I certify that this document copmplies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 2183 words, and that the document is in 14
point type.

                              /s/ Brian K. Walker
                              BRIAN K. WALKER




                         15
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00540-CR


Thomas Ramirez, Jr.                        §   From the 297th District Court

                                           §   of Tarrant County (1260933R)

v.                                         §   August 6, 2015

                                           §   Opinion by Justice Gardner

The State of Texas                         §   (nfp)

                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was clerical error in the trial court’s judgment. The trial court’s judgment

incorrectly recites Appellant Thomas Ramirez Jr. was convicted of murder under

section 19.02(b)(1) of the Texas Penal Code. The judgment is modified to reflect

correctly that Appellant Thomas Ramirez Jr. was convicted of murder under

section 19.02(b)(3) of the Texas Penal Code. As modified, it is ordered that the

judgment of the trial court is affirmed.


                                      SECOND DISTRICT COURT OF APPEALS

                                      By _/s/ Anne Gardner______________
                                         Justice Anne Gardner
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00540-CR


THOMAS RAMIREZ JR.                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1260933R

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      A jury convicted Appellant Thomas Ramirez Jr. of felony murder and

assessed his punishment at life imprisonment.           In four issues, Appellant

contends: (1) the evidence was insufficient; (2) the trial court erred by refusing to

admit evidence Appellant offered; (3) the trial court erred by denying his charge

request for a lesser-included offense; and (4) the trial court erred by admitting


      1
       See Tex. R. App. P. 47.4.
evidence of his prior convictions during the trial on punishment. We modify the

judgment to correct clerical error and affirm as modified.

                                   Background

      In count one of the indictment, the State alleged that Appellant intentionally

or knowingly committed or attempted to commit an act clearly dangerous to

human life, namely, Appellant discharged a firearm at or in the direction of a

habitation or building and thereby caused the death of Ivan Daniel Valenzuela.

The State further alleged that Appellant was at that time in the course of or in

immediate flight from the commission or attempted commission of a felony, to-

wit: unlawful possession of a firearm by a felon. Appellant had a prior state jail

felony conviction from 2009 for the offense of theft from a person. The State in

count one alleged felony murder. Tex. Pen. Code Ann. § 19.02(b)(3) (West

2011). The jury found Appellant guilty of count one.

                                   The Evidence

      Appellant’s girlfriend testified that on August 21, 2011, Appellant picked up

her and her cousin around noon at her house in Oak Cliff, dropped off her cousin

at a beer barn where her cousin worked, bought some Bud Light despite already

being “somewhat” intoxicated, and headed to Arlington.        Appellant’s girlfriend

stated that Appellant, while driving down the highway, used cocaine and drove in

a crazy manner, swerving from lane to lane and going fast. Appellant was angry

and babbling about a drive-by shooting at his sister’s that she thought had

happened years ago before she knew him. She said Appellant exited on Fielder,


                                         2
and although they were supposed to go to Appellant’s sister’s house, Appellant

just drove around. Appellant’s girlfriend said the whole point was to hang out, but

Appellant did not listen to her requests to stop driving around; eventually,

however, he stopped at his sister’s. Appellant’s mother and sister tried to calm

down Appellant and invited him to come inside, but Appellant, who remained

angry and loud, refused to get out of his car. Appellant and his girlfriend left in

Appellant’s Suburban and started driving around again until Appellant stopped at

someone else’s house.       Appellant went inside the house, but Appellant’s

girlfriend got out of the Suburban and started to walk away because Appellant

refused to take her home. Appellant caught up with her in his Suburban, told her

to get into the car, and then started driving around again. While driving through

an Arlington neighborhood, she said Appellant pulled out a firearm and started

shooting out the window as he drove around and drank beer.             Appellant’s

girlfriend testified that she told Appellant to stop shooting, but he was mad and

would not stop. Eventually, they returned to Appellant’s sister’s house where his

sister came out to the car. Appellant gave his gun to his sister. Appellant’s

girlfriend said Appellant was supposed to take her home, so they took off;

however, the police pulled up behind them fairly quickly.        They stopped at

another residence and went inside, but the police came to the door and arrested

both of them. Appellant’s girlfriend said she saw Appellant throw down some

drugs after he exited the car before going inside the house.




                                        3
      Another witness testified that while near his pool in his backyard, he heard

gunshots outside his home on Ravinia Drive in Arlington around 1:00 p.m. He

ran to his gate and saw a red Suburban. He then ran through his house to his

front porch and saw the Suburban driving off. The witness’s roommate called

911, and shortly thereafter, the witness heard more gunshots in an area close to

an apartment complex.

      A convenience store worker at a Q Mart in Arlington said he heard four to

five gunshots around 1:00 p.m. He saw a red Suburban sitting at a stop sign on

Oakwood Street at the Sanford Street intersection in front of his store.

      The jury also heard a 911 call from a man who identified himself as

residing at Romack Court. In the call, he described a heavy-set, bald-headed,

tattooed Mexican in his twenties, who was probably drunk, driving a red

Suburban or Tahoe with a female in the vehicle while shooting his pistol in the

air. State’s Exhibits 88, 89, 91, 92, 93, and 94 show a heavy set, young Hispanic

male with many tattoos and a close-shaved haircut. The 911 caller said the

vehicle’s license plate started with a C. State’s Exhibit 6 showed the license

plate on Appellant’s red Suburban started with a C. The 911 caller said the

Suburban was headed south on Cousins Street.

      Officer Keith Crow went to the witness’s home on Ravinia Drive. He found

and collected three .40-caliber shell casings in the intersection in front of the

home. Officer Crow then went to Romack Court. Officer Crow found another

.40-caliber shell casing matching those he found on Ravinia and a Bud Light beer


                                         4
can. He collected both because the witnesses said the driver, as he passed by

shooting, had dropped a beer can out of the Suburban’s window.

      Officer Crow said he then got a call from Officer Charles Carik, so Officer

Crow drove to the Cousins Street location, where he saw that Officer Carik had

detained both Appellant and Appellant’s girlfriend. Officer Crow searched the

Suburban and found another Bud Light can inside the vehicle that matched the

can he had picked up on Romack Court.

      Officer Chad Hanny, who assisted in arresting Appellant, said a young

woman directed his attention to a little blue baggie that Appellant had dropped

within six inches of his feet as he was about to be frisked. The contents of the

little blue baggie were later identified as cocaine.   Officer Hanny transported

Appellant to the Arlington jail where Appellant was tested for gunshot residue.

      The father of Ivan Valenzuela said his son was supposed to attend a family

get-together on Sunday, August 21, but Ivan never showed up. Ivan’s father had

telephoned Ivan before noon, and Ivan had answered; when Ivan’s father

attempted to call his son again after 1:00 p.m., he did not answer. After Ivan’s

father had not heard from his son on Monday, he went to Ivan’s apartment to

check on him. Ivan lived on the second floor of the Oakwood Court Apartments

on Oakwood Lane in Arlington.

      Ivan’s neighbor said Ivan would frequently sit on the floor of his second-

floor apartment and listen to his headphones while smoking cigarettes. Ivan’s

neighbor said he would acknowledge her as she came and went from the


                                        5
Oakwood Court Apartments. When Ivan’s father arrived, he could see his son

sitting by the window of his upstairs apartment leaning against the wall with his

head down, not moving.      State’s Exhibit 18, a photo shot from outside the

apartment building, shows Ivan was visible through his second story window.

When Ivan did not respond, his father obtained a key from the managers, and

they went inside his son’s apartment. They found Ivan dead. Ivan’s father called

911.

       Detective Caleb Blank led the homicide investigation.       Detective Ben

Lopez assisted him. They saw a hole in the window screen that appeared to be

made from the trajectory of the bullet that had killed Ivan. Ivan’s apartment was

across the street from the Q Mart convenience store.

       Five days after the shooting, officers searched the street in front of the

crime scene for shell casings. They recovered .40-caliber shell casings and one

.25-caliber casing in the same vicinity. They were not able to recover the firearm

Appellant had allegedly fired. The detectives searched the Suburban again and

found another baggie of cocaine under the passenger seat.

       The detectives had the shell casings and the Bud Light beer can tested for

DNA and fingerprint comparisons. The Bud Light beer can had a fingerprint

matching Appellant’s, but the shell casings did not produce any DNA or

fingerprints matching Appellant’s. Appellant’s face tested positive for gunshot

residue.




                                        6
        A firearms specialist said that he was able to establish that the bullet that

killed Ivan had come from a Fabrique National, otherwise known as an FN; a Kel

Tec; a Smith & Wesson; a Springfield Inc., which was also known as Springfield

Armory; or a Walther firearm based on the FBI list he used to identify the bullet.

He said firearms were periodically added to the list.         The firearm specialist

acknowledged that Glocks were not on the FBI list and that witnesses had

testified that Appellant had been shooting a Glock.

        The chief medical examiner testified that a distant shot had killed Ivan.

The autopsy revealed that Ivan had died from a gunshot wound to the head. The

projectile was a .40-caliber shell.     He said the bullet, after it entered Ivan’s

temple, had traveled slightly downward from left to right toward the back of Ivan’s

head.

                             Sufficiency of the Evidence

        In his first issue, Appellant contends the evidence is insufficient to support

his conviction. Initially, Appellant attacks the finding that he was shooting a gun

at all. Appellant stresses that no firearm was found. Appellant asserts that his

ex-girlfriend may have felt pressured to cooperate with the prosecution.

Regarding the gunshot residue on Appellant’s face, Appellant emphasized that

even the gunshot-residue examiner admitted that the residue could have been

caused by something other than a gunshot. Next, Appellant contends that even

if the evidence was sufficient to prove he was driving around and shooting a

firearm, there was no evidence his conduct caused Ivan’s death. Because the


                                           7
firearm was not recovered, there was no way to show a correlation between the

bullet and the firearm that Appellant had allegedly possessed.             Appellant

stresses that the medical examiner’s testimony was that the bullet travelled

slightly downward. Appellant contends the State’s theory was that Appellant was

shooting from the street level in the direction of a second story apartment; he

maintains that a bullet would not strike Ivan’s head on the second floor and then

travel slightly downward.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are


                                         8
reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      There was abundant evidence Appellant was shooting a firearm.

Appellant’s girlfriend, who was in the car with him, said he was. The jury decides

whom to believe or disbelieve. See Turro v. State, 867 S.W.2d 43, 48 (Tex.

Crim. App. 1993).        We do not re-evaluate the factfinders’ credibility

determinations. See Isassi, 330 S.W.3d at 638. Besides Appellant’s girlfriend,

other witnesses identified the shooting as coming from the same type of car that

Appellant was driving and from the same locations, including the street in front of

the Oakwood Court Apartments, where they heard gunshots.             The gunshot

residue on Appellant’s face was further evidence supporting the finding that

Appellant was the shooter. The jurors decided how much weight to give this

evidence.   See Dobbs, 434 S.W.3d at 170.           We do not re-evaluate the

factfinders’ weight determinations. See Isassi, 330 S.W.3d at 638.

      Regarding    whether   Appellant   caused    Ivan’s   death,   Ivan’s   father

telephoned Ivan successfully before noon and unsuccessfully after 1:00 p.m. on

August 21. Appellant’s shooting spree occurred around 1:00 p.m. on August 21,

which corresponded with Ivan’s father’s unsuccessful attempt to call Ivan after


                                         9
1:00 p.m. after successfully telephoning him earlier. The cause of Ivan’s death

was a gunshot wound to the head by a .40-caliber shell from a distant range.

The police recovered .40-caliber shell casings from three locations where

witnesses had heard gunfire and had seen Appellant’s Suburban—Ravinia Drive,

Romack Court, and on the street in front of the Oakwood Court Apartments.

      Regarding the trajectory of the bullet through Ivan’s head, Appellant’s

argument fails to take into consideration the position of Ivan’s body and head

when he was struck. Given all the other evidence, the jury reasonably could

have found that Ivan was looking downward when the bullet struck him. State’s

Exhibit 9 shows the street level was slightly more elevated than the ground level

of the apartment building, which would have reduced the angle. State’s Exhibit

25, a photo from essentially the base of Ivan’s window looking out toward the

street while a vehicle was driving down the street, shows the variation in the

elevations, especially with someone sitting in a vehicle, was not as great as

Appellant suggests in his brief. The medical examiner said the lividity, that is, the

pooling of the blood that occurs after death because the blood is no longer

circulating, in the front of Ivan’s face suggested that he died while he was sitting

up and that his face was looking downward. State’s Exhibit 20 shows the base of

the window at which Ivan sat was at most a foot from the floor, and it shows the

vertical edge of the window was less than a foot from a wall that ran

perpendicular to the window. Ivan is shown sitting on the floor with his back

propped up against that wall. Outside the window is a street, and across the


                                         10
street is the convenience store. Ivan’s chin rests on his chest. His left hand still

holds a cigarette while simultaneously steadying a forward-tilted, canned

beverage, which suggests little or no movement after being shot. The lividity

discoloration is evident in his lower face and his lower extremities in State’s

Exhibits 20 and 25. The medical examiner said the bullet did not strike Ivan

perpendicularly but at an angle and described it as a glancing gunshot wound.

The trajectory of a bullet through the head of a victim from a gun fired from a

lower elevation to a higher one would vary depending upon whether the head

was tilted upward, positioned level with the ground, or bent looking downward.

The cumulative force of the evidence when viewed in the light most favorable to

the verdict shows the jury could have reasonably concluded Ivan was looking

downward when he was shot, which would explain the slightly downward

trajectory of the bullet.2 See Sorrells, 343 S.W.3d at 155.

      We hold the evidence was legally sufficient to support Appellant’s

conviction and overrule his first issue.

                                 Exclusion of Email

      In his second issue, Appellant complains about an email that a Ms.

Roberts, one of Ivan’s friends, had sent Detective Blank. Appellant asserts that

his theory was that Ivan, who had been convicted of first degree felony delivery



      2
        We note that defense counsel, during his closing arguments, did not rely
at all on the trajectory of the bullet.


                                           11
of drugs, was dealing drugs and was fearful for his life.3 Appellant maintains that

Ms. Roberts, in her email, indicated Ivan was afraid and that she was concerned

that the people Ivan was afraid of had killed him. Appellant asserted he offered

the email to show the detectives’ investigation was deficient and not for the truth

of the matter asserted, but the trial court sustained the State’s hearsay objection.

      The State responded that the trial court’s evidentiary rulings are reviewed

using an abuse of discretion standard. Foster v. State, 180 S.W.3d 248, 250

(Tex. App.—Fort Worth 2005, pet. ref’d). The State argued that the jury would

have had to believe the factual assertions in the email to adopt Appellant’s

argument that the officers’ investigation was flawed; therefore, the trial court

properly excluded the email as hearsay. See Tex. R. Evid. 801(d) (“‘Hearsay’

means a statement that: (1) the declarant does not make while testifying at the

current trial or hearing; and (2) a party offers in evidence to prove the truth of the

matter asserted in the statement.”) Alternatively, the State argued the trial court

properly excluded the email because its probative value was not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. See Tex. R. Evid. 403. The State stressed that the email

was full of historical details irrelevant to explaining the officers’ conduct during

their investigation; that the letter rambled on, sometimes cryptically, about many

other things; and that the threat it referenced happened years earlier. Finally, the


      3
       Ivan had a first degree felony conviction for delivery of amphetamine.


                                         12
State asserted any error was harmless because Appellant cross-examined

Detective Blank about the email extensively. See Tex. R. App. P. 44.2(b).

       Assuming, without deciding, that the email was admissible and improperly

excluded, we hold that the error, if any, was harmless. Tex. R. App. P. 44.2(b).

Ms. Roberts’s email is part of our record. The email is dated August 30, 2011—

only nine days after the shooting and eight days after Ivan’s body was

discovered.    Ms. Roberts was apparently trying to help the police identify

suspects.

       She initially identified as a suspect a “big ‘Mexican’ guy” who might have

been competing for the attention of the same girl that Ivan had shown an interest

in.   She then goes on for several pages about “‘the thing in Virginia.’”     Ms.

Roberts related that Ivan had spent time in Virginia with a friend from Texas

named Justin who worked for an organized crime organization in Virginia and

whom Ivan had described as doing “‘really scary-bad stuff.’” She related that at

some point, Ivan had told her that he had begged Justin not to kill him after Ivan

was accused of stealing a power washer while driving Justin’s truck, which

caused the police to suspect Justin.4 Ms. Roberts wrote that Ivan had hid when

he had returned to Texas.

       At trial, defense counsel cross-examined Detective Blank extensively

regarding his failure to aggressively follow up on Ms. Roberts’s email. Detective

       4
       This is our understanding of Ms. Roberts’s email. We agree with the
State that her email can be difficult to follow.


                                       13
Blank said the email described a theory involving the east coast mafia in Virginia.

Detective Blank explained that when he had talked to Ms. Roberts over the

phone, she had mentioned an upsetting conversation about a washing machine

from several years earlier. When defense counsel asked about the part where

Ivan had begged not to be killed, Detective Blank responded, “It was a[n]

improbable lead when I already had specific knowledge and probable cause to

charge [Appellant] with the offense at hand.” During closing arguments, defense

counsel even argued these investigative deficiencies to the jury. Consequently,

the jury was aware of Ms. Roberts’s email and was aware there were other leads

possibly pointing to other suspects that Detective Blank did not pursue.

Appellant wanted the email admitted to undermine Detective Blank’s decision not

to pursue these other leads, but Appellant already had that ability and made his

point through his cross-examination of Detective Blank, which the trial court

expressly stated Appellant would be allowed to do. We hold the error, if any, in

not admitting Ms. Roberts’s email was harmless. See Tex. R. App. P. 44.2(b).

      Having held the error, if any, was harmless, we overrule Appellant’s

second issue.

                Failure to Charge on the Lesser-Included Offense

      In his third issue, Appellant argues that the trial court abused its discretion

by denying his request that the charge include a question pertaining to the

lesser-included offense of deadly conduct. The State in count one alleged felony

murder under penal code section 19.02(b)(3), which provides:


                                        14
      (b) A person commits an offense if he:

             ....

             (3) commits or attempts to commit a felony, other than
             manslaughter, and in the course of and in furtherance of
             the commission or attempt, or in the immediate flight
             from the commission or attempt, he commits or
             attempts to commit an act clearly dangerous to human
             life that causes the death of an individual.

Tex. Pen. Code Ann. § 19.02(b)(3). Specifically, the State alleged that Appellant

intentionally or knowingly committed or attempted to commit an act clearly

dangerous to human life, namely, Appellant discharged a firearm at or in the

direction of a habitation or building and thereby caused Ivan’s death and, further,

that Appellant was at that time in the course of or immediate flight from the

commission or attempted commission of a felony, to-wit: unlawful possession of

a firearm by a felon.

      In the indictment, the felony “other than manslaughter” that Appellant

committed was unlawful possession of a firearm by a felon, which is a third

degree felony.      Id. § 46.04(a), (e) (West 2011).    It was in the course of

committing that offense (unlawful possession of a firearm by a felon) that

Appellant allegedly committed “an act clearly dangerous to human life that

cause[d] the death of an individual.”        Id. § 19.02(b)(3).   Specifically, he

“discharge[d] a firearm at or in the direction of a habitation or building, which

caused the death of Ivan Daniel Valenzuela.” Appellant contends the offense of

deadly conduct is subsumed within that latter allegation, that is, while Appellant



                                        15
was committing the felony offense of unlawful possession of a firearm by a felon,

he committed the offense of deadly conduct. The deadly conduct provision upon

which Appellant relies provides as follows:

      (b) A person commits an offense if he knowingly discharges a
      firearm at or in the direction of:

            ....

            (2) A habitation, building, or vehicle and is reckless as
            to whether the habitation, building, or vehicle is
            occupied.

Id. § 22.05(b)(2) (West 2011).

      We use a two-step analysis to determine whether an appellant was entitled

to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come

within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.

Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.

1998). The State does not dispute that Appellant met the first prong. See Tex.

Code Crim. Proc. Ann. art. 37.09(1), (2); Ex parte Watson, 306 S.W.3d 259, 273

(Tex. Crim. App. 2009) (op. on reh’g). Without deciding, we will assume for

purposes of our analysis that Appellant met the first prong. See Skinner v. State,

956 S.W.2d 532, 543 (Tex. Crim. App. 1997) (stating first prong met where

neither party disputed it), cert. denied, 523 U.S. 1079 (1998).




                                        16
      Under the second prong, some evidence must exist in the record that

would permit a jury to rationally find that if the appellant is guilty, he is guilty only

of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734,

741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence

must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8.

There must be some evidence from which a rational jury could acquit the

appellant of the greater offense while convicting him of the lesser-included

offense.   Id.   The court may not consider whether the evidence is credible,

controverted, or in conflict with other evidence. Id. Anything more than a scintilla

of evidence may be sufficient to entitle a defendant to a lesser charge. Hall, 225

S.W.3d at 536.

      Appellant contends he met the second prong as well. Appellant again

asserts there was no evidence his conduct caused Ivan’s death. We disagree. It

is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense; rather, there must be some evidence directly germane to the

lesser-included offense for the finder of fact to consider before an instruction on a

lesser-included offense is warranted. See Skinner, 956 S.W.2d at 543. Under

the facts, if the jury found Appellant had engaged in the deadly conduct, the

lesser-included offense, it had no rational basis for acquitting Appellant of the

greater offense of felony murder. See Moore, 969 S.W.2d at 8; Jones v. State,

241 S.W.3d 666, 672 (Tex. App.—Texarkana 2007, no pet.) (“[T]here was no

germane evidence presented for the jury to rationally consider that the lesser-


                                           17
included offense of simple assault took place; under the evidence presented, if

the jury found that any assault occurred at all, it was an aggravated assault.”).

There was not a scintilla of evidence that Ivan’s death was caused by anything

other than Appellant’s discharging a firearm while being a felon in possession of

a firearm. See Moore, 969 S.W.2d at 8.

      We hold the trial court did not err by refusing Appellant’s request for a

charge on the lesser-included offense and overrule Appellant’s third issue.

           Admission of Prior Convictions During the Punishment Trial

      In his fourth issue, Appellant contends that during the punishment phase,

the trial court erred by overruling his objections to State’s Exhibits 96, 97, 99, and

100, which were convictions not proven through fingerprint comparison. The

State argued the county identification numbers were the same on each document

and, in that way, were connected to the person “rolled” in court that day.

Appellant notes that this court has, in unpublished opinions, twice ruled against

his position on this issue. See Jones v. State, No. 02-11-00060-CR, 2012 WL

3735890, at *1–2 (Tex. App.—Fort Worth Aug. 30, 2012, pet. ref’d) (mem. op, not

designated for publication); Norris v. State, No. 02-10-00468-CR, 2012 WL

2135594, at *2–3 (Tex. App.—Fort Worth June 14, 2012, pet. ref’d) (mem. op,

not designated for publication). However, absent fingerprints, Appellant argues

that other inmates may have been abusing the system by using Appellant’s name

as an alias.




                                         18
      To establish that a defendant has a prior conviction, the State must prove

beyond a reasonable doubt that (1) a prior conviction exists and (2) the

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921

(Tex.Crim. App. 2007); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App.

1986) (“It is incumbent on the State to go forward and show by independent

evidence that the defendant is the person so previously convicted.”); see also

Timberlake v. State, 711 S.W.2d 50, 52 (Tex. Crim. App. 1986) (“[T]he facts of

each case must contain reliable evidence showing that the defendant had been

previously convicted of the offense for which evidence is offered.”). These two

elements may be shown by certified copies of a judgment and a sentence,

including fingerprints supported by expert testimony identifying them as identical

with known prints of the defendant. See Vessels v. State, 432 S.W.2d 108, 117

(Tex. Crim. App. 1968). There is no required mode of proof; the State may prove

a prior conviction in a number of different ways. Flowers, 220 S.W.3d at 921–22

(“Just as there is more than one way to skin a cat, there is more than one way to

prove a prior conviction.”). In proving the elements, the State may use “[a]ny

type of evidence, documentary or testimonial.” Id. at 922; see Human v. State,

749 S.W.2d 832, 836 (Tex. Crim. App. 1988). The factfinder looks at the totality

of the evidence to determine whether there was a previous conviction and

whether the defendant was the person convicted. Flowers, 220 S.W.3d at 923.

      John Pauley, a deputy in the Tarrant County Sheriff’s Office, said a county

identification number was assigned to a person the first time he or she came to


                                       19
jail. He said that number was not duplicated for any other person and that the

person assigned that number would always get that number every time that

person came back into custody. He rolled Appellant’s prints the same afternoon

during which he testified.    Those prints matched the prints and the county

identification number that the sheriff’s department kept on file for Appellant.

State’s Exhibits 96, 97, 99, and 100 had the same county identification number.

Deputy Pauley admitted that initially sometimes mistakes were made.

      Appellant’s arguments go to the weight of the evidence and not to its

admissibility. That State showed prior convictions and linked them to Appellant.

See Flowers, 220 S.W.3d at 921. The trial court signaled to the jury that the

issue was one of weight and not admissibility. When admitting State’s Exhibits

96, 97, 99, and 100, the trial court said, “At this time, the Court is going to

overrule the objection to State’s Exhibits 96, 97, 99, 100. The jury will assign the

proper weight to be given to the evidence.” Appellant does not direct us to any

other evidence supporting his speculation that these convictions were the

product of someone else successfully using his name and county identification

number as aliases.

      We hold that the trial court did not err by admitting State’s Exhibits 96, 97,

99, and 100 and overrule Appellant’s fourth issue.         See Jones, 2012 WL

3735890, at *1–2; Norris, 2012 WL 2135594, at *2–3.




                                        20
                     Reformation of Judgment to Speak the Truth

          An appellate court has the authority to reform a judgment to make the

record speak the truth. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992). The authority to correct a clerical error is not dependent upon a request

by either party or upon whether they objected and preserved error in the trial

court. Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet.

ref’d).    The judgment reflects that Appellant was convicted of murder under

section 19.02(b)(1) of the Texas Penal Code. This is clerical error. The jury

convicted Appellant on the first count in the indictment. The State alleged in the

first count of the indictment felony murder under section 19.02(b)(3) of the penal

code. Tex. Penal Code Ann. § 19.02(b)(3). We reform the judgment to speak

the truth, which is that Appellant was convicted under section 19.02(b)(3) of the

Texas Penal Code.

                                    Conclusion

          Having overruled Appellant’s four issues and having corrected the

judgment to speak the truth, we affirm the trial court’s judgment as modified.


                                                   /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 6, 2015


                                        21
