Michael David Ramirez AKA Michael Ramirez AKA David Michael Ramirez v. State ( 2015 )

ACCEPTED
13-14-00171-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/20/2015 11:07:06 AM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-14-00171-CR
13-14-00172-CR
13-14-00301-CR FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
4/20/2015 11:07:06 AM
IN THE COURT OF APPEALSDORIAN E. RAMIREZ
Clerk
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
MICHAEL DAVID RAMIREZ, Appellant
v.
STATE OF TEXAS, Appellee.
On appeal from the 445th Judicial District Court
of Cameron County, Texas
Trial Court Cause Numbers 2013-DCR-02246,
10-CR-2650-I, and 09-CR-2098-I
STATE’S APPELLATE BRIEF
Luis V. Saenz
Cameron County District Attorney
Oral Argument Requested
René B. González
Assistant District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
Attorneys for the State of Texas
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State’s Response to Appellant’s First Issue.. . . . . . . . . . . . . . . . . . . 3
State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . 6
State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . 7
State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . 11
State’s Response to Appellant’s Fifth Issue.. . . . . . . . . . . . . . . . . . 11
State’s Response to Appellant’s Sixth Issue. . . . . . . . . . . . . . . . . . 12
State’s Response to Appellant’s Seventh Issue.. . . . . . . . . . . . . . . 15
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-i-
INDEX OF AUTHORITIES
Cases
Allaben v. State,
418 S.W.2d 517 (Tex. Crim. App. 1967). . . . . . . . . . . . . . . . . . . . . 17
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . 8
Arevalo v. State,
943 S.W.2d 887 (Tex. Crim. App.1997). . . . . . . . . . . . . . . . . . . . . . . 6
Arrevalo v. State,
489 S.W.2d 569 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . 4, 17, 18
Avila v. State,
954 S.W.2d 830 (Tex. App.--El Paso 1997, pet. ref’d). . . . . . . . . . . . 6
Ayala v. State,
267 S.W.3d 428 (Tex. App.--Houston [14th Dist.] 2008, . . . . . . . . . 13
Barrios v. State,
283 S.W.3d 348 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . 8
Benavides v. State,
763 S.W.2d 587 (Tex. App.--Corpus Christi 1988, pet. ref’d).. 8, 9, 10
Brandley v. State,
691 S.W.2d 699 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . 14
Brown v. State,
505 S.W.2d 850 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . . . . 17, 18
Cockrell v. State,
933 S.W.2d 73 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . 12
-ii-
Denison v. State,
651 S.W.2d 754 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . 13
Garza v. State,
974 S.W.2d 251 (Tex. App.--San Antonio 1998, pet. ref’d). . . . . . 4, 5
Grey v. State,
298 S.W.3d 644 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . 6, 7
Johnson v. State,
233 S.W.3d 109 (Tex. App.--Houston [14th Dist.] 2007, no pet.). . . 12
Kihega v. State,
392 S.W.3d 828 (Tex. App.--Texarkana 2013, no pet.). . . . . . . . 8, 10
Linder v. State,
828 S.W.2d 290 (Tex. App.--Houston [1st Dist.] 1992, pet. ref’d). . 15
Love v. State,
909 S.W.2d 930 (Tex. App.--El Paso 1995, pet. ref'd). . . . . . . . . . . . 5
Loving v. State,
947 S.W.2d 615 (Tex. App.--Austin 1997, no pet.). . . . . . . . . . . . . . 5
Lowenfield v. Phelps,
484 U.S. 231 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Nacol v. State,
590 S.W.2d 481 (Tex. Crim. App. 1979). . . . . . . . . . . . . . . . . . 17, 19
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Resendiz v. State,
112 S.W.3d 541 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . 14
Richardson v. State,
108 Tex. Crim. 318, 239 S.W. 218 (1922). . . . . . . . . . . . . . . . . . . . . 9
-iii-
Rodriguez v. State,
625 S.W.2d 101 (Tex. App.--San Antonio 1981, pet. ref’d). . . . . . . 19
Russeau v. State,
171 S.W.3d 871 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 11
Shannon v. State,
942 S.W.2d 591 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . 13
Shelby v. State,
724 S.W.2d 138 (Tex. App.--Dallas 1987) (op. on reh’g),
vacated on other grounds, 761 S.W.2d 5
(Tex. Crim. App. 1988) (per curiam). . . . . . . . . . . . . . . . . . . . . . 9, 10
Torres v. State,
92 S.W.3d 911 (Tex. App.--Houston
[14th Dist.] 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16
Wesbrook v. State,
29 S.W.3d 103 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . 13
Statutes
Tex. Code Crim. Proc. art. 36.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Rules
Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-iv-
CAUSE NO. 13-14-00171-CR
13-14-00172-CR
13-14-00301-CR
____________________________________
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
____________________________________
MICHAEL DAVID RAMIREZ, Appellant
v.
STATE OF TEXAS, Appellee
____________________________________
STATE’S APPELLATE BRIEF
____________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and,
pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, files this,
its Appellate Brief in the above-styled and -numbered cause of action, and
in support thereof, would show this Honorable Court as follows:
State’s Brief Page 1
SUMMARY OF ARGUMENT
Appellant raises seven issues on appeal. (1) In his first issue,
Appellant argues that the trial court included an erroneous instruction in the
charge at the guilt phase of trial. The State responds by asserting that the
instruction was not erroneous. (2) In his second issue, Appellant argues
that the trial court erred in submitting a charge to the jury on the lesser
included offense of theft. The State responds by asserting that the trial
court did not err in submitting the lesser included charge because the State
properly requested same. (3) In his third issue, Appellant argues the trial
court erred by failing to provide the jury with a “benefit of the doubt”
instruction. The State responds by asserting the trial court did not commit
error by instructing the jury regarding its consideration of the greater
offense before the lesser included offense. (4) In his fourth issue,
Appellant complains of the State’s closing argument concerning
“community expectations”; however, Appellant completely fails to present
any argument in support of this issue. (5) In his fifth issue, Appellant
complains that the Prosecutor asked the jurors to put themselves in the
place of the victim. The State responds by noting that this issue has not
been preserved for appellate review. (6) In his sixth issue, Appellant
State’s Brief Page 2
argues that the State’s closing argument was outside the record, and
harmful. The State responds by asserting that the argument was not
improper. (7) In his seventh issue, Appellant argues that the trial court
erred in not complying with article 36.27 in providing a supplemental
instruction to the jury. The State responds by asserting that the trial court
did not violate article 36.27.
ARGUMENT & AUTHORITIES
State’s Response to Appellant’s First Issue
In his first issue, Appellant argues that the trial court included an
erroneous instruction in the charge at the guilt phase of trial. The State
responds by asserting that the instruction was not erroneous.
The court instructed the jury as follows:
In order to return a verdict, each juror must agree thereto,
but jurors have a duty to consult with one another and to
deliberate with a view to reaching an agreement, if it can be
done without violence to individual judgment.
Each juror must decide the case for himself, but only after
an impartial consideration of the evidence with his fellow
Jurors. (C.R. p. 36).1
Appellant is not clear as to why this language should not have been
1
Unless otherwise stated, all cites to the Clerk’s Record and Reporter’s Record
herein refer to the record filed in appellate cause number 13-14-00171-CR.
State’s Brief Page 3
included in the charge; however, the State surmises that Appellant is
arguing that the instruction overemphasizes the importance of reaching a
verdict and is coercive. Appellant implies that the trial court failed to
instruct the jury that their verdict must be unanimous; however, such
implication is clearly erroneous as the trial court did properly instruct the
jury that their verdict must be unanimous. (C.R. pp. 37-38).
This exact language was also challenged in Garza v. State, 974
S.W.2d 251, 255-56 (Tex. App.--San Antonio 1998, pet. ref’d). The Garza
court noted that both the United States Supreme Court and the Texas
Court of Criminal Appeals have approved charges containing similar
language when a jury has indicated that it is deadlocked. See Lowenfield
v. Phelps, 484 U.S. 231, 235 (1988) (approving charge that stated, in part,
“it is your duty to consult with one another to consider each other’s views
and to discuss the evidence with the objective of reaching a just verdict if
you can do so without violence to that individual judgment”); Arrevalo v.
State, 489 S.W.2d 569, 571–72 (Tex. Crim. App. 1973) (approving charge
that stated, in part, “you are instructed to continue deliberations in an effort
to arrive at a verdict which is acceptable to all members of the jury”).
Appellant does not complain that the instruction was particularly
State’s Brief Page 4
coercive in this case because it was given in the initial charge instead of
after the jury was deadlocked, and there is no reason to conclude that the
instruction would be more coercive in this situation. Indeed, some courts
have determined that this type of instruction is less coercive if included in
the initial jury charge. See Loving v. State, 947 S.W.2d 615, 619 (Tex.
App.--Austin 1997, no pet.) (citing cases); but see Love v. State, 909
S.W.2d 930, 937 (Tex. App.--El Paso 1995, pet. ref'd) (finding that the
inclusion of similar language is not erroneous, but discouraging the
inclusion in the initial jury charge of an instruction informing the jury of the
consequences of a mistrial).
Assuming that the language could have a coercive effect standing
alone, the remainder of the jury charge, including the admonishment that
“no juror should surrender his honest conviction as to the weight or effect
of the evidence solely because of the opinion of his fellow jurors, or for the
mere purpose of returning a verdict” (C.R. p. 36), eliminated any potential
for coercion. Garza, 974 S.W.2d at 256. Accordingly, this Court should
conclude that the trial court did not err in giving the instruction and
Appellant’s first issue should be overruled.
State’s Brief Page 5
State’s Response to Appellant’s Second Issue
In his second issue, Appellant argues that the trial court erred in
submitting a charge to the jury on the lesser included offense of theft. The
State responds by asserting that the trial court did not err in submitting the
lesser included charge because the State properly requested same.
Prior to the Court of Criminal Appeals decision in Grey v. State, 298
S.W.3d 644 (Tex. Crim. App. 2009), in a case such as this one, a trial
court’s decision to included a lesser-included offense instruction in the jury
charge at the State’s request, was subject to a two part inquiry: (1) is the
lesser-included offense included within the proof necessary to establish the
offense charged; and (2) is there some evidence in the record that would
permit a jury to rationally determine that if the defendant is guilty, he is
guilty only of the lesser offense. Avila v. State, 954 S.W.2d 830, 842 (Tex.
App.--El Paso 1997, pet. ref’d); see also Arevalo v. State, 943 S.W.2d 887,
889-90 (Tex. Crim. App.1997) (applying the second prong of the
Rousseau-Aguilar-Royster test to State’s request for a lesser-included
offense instruction), overruled by Grey, 298 S.W .3d at 651.
Appellant’s argument focuses exclusively on the second prong of the
pre-Grey analysis. He contends that there was no evidence upon which
State’s Brief Page 6
the jury could have found him guilty only of the lesser offense. The Court
of Criminal Appeals’ decision in Grey abrogated the common law rule
requiring the State to meet the second prong of the Rousseau test. Grey,
298 S.W.3d at 651. Therefore, under Grey, the State is entitled to have a
lesser-included offense instruction included in the jury charge solely on the
basis that proof of the lesser offense is included within the proof necessary
to establish the offense charged. See Grey, 298 S.W.3d at 645. As there
is no dispute between the parties that theft is a lesser-included offense of
robbery, the trial court did not err by granting the State’s request to
included the lesser-included offense instruction in the jury charge.
Therefore, Appellant’s second issue should be overruled.
State’s Response to Appellant’s Third Issue
In his third issue, Appellant argues the trial court erred by failing to
provide the jury with a “benefit of the doubt” instruction. The State
responds by asserting the trial court did not commit error by instructing the
jury regarding its consideration of the greater offense before the lesser
included offense.
Appellant did not object to the omission of a “benefit-of-the-doubt”
State’s Brief Page 7
instruction in the jury charge, nor did he request such an instruction. A
claim of error in the jury charge is reviewed using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); see also
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). The first
step is to determine whether there is error in the charge. Barrios, 283
S.W.3d at 350; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
If there was properly objected to error, reversal is required if the error is
“calculated to injure the rights of the defendant,” which the court of criminal
appeals has defined to mean “some harm.” Barrios, 283 S.W.3d at 350
(quoting Almanza, 686 S.W.2d at 171). If the error was not objected to, it
must be fundamental and will require reversal only if it was so egregious
and created such harm that the defendant did not have a fair and impartial
trial. Id.; Almanza, 686 S.W.2d at 171.
As a general rule, where greater and lesser grades or degrees of an
offense are charged, the court must give the jury a “benefit of the doubt”
instruction if requested by the defendant. See Kihega v. State, 392
S.W.3d 828, 835 (Tex. App.--Texarkana 2013, no pet.); Benavides v.
State, 763 S.W.2d 587, 589 (Tex. App.--Corpus Christi 1988, pet. ref’d).
The instruction is given to assist the jury if it has no reasonable doubt as to
State’s Brief Page 8
the defendant’s guilt, but is uncertain about the grade or degree of the
offense. Benavides, 763 S.W.2d at 589 (citing Richardson v. State, 108
Tex. Crim. 318, 328, 239 S.W. 218, 224 (1922) (op. on reh’g)). Failure to
include a “benefit of the doubt” instruction is not harmful to the defendant,
however, if the charge as a whole leaves no uncertainty as to how to
resolve any doubt. Shelby v. State, 724 S.W.2d 138, 140 (Tex. App.--
Dallas 1987) (op. on reh’g), vacated on other grounds, 761 S.W.2d 5 (Tex.
Crim. App. 1988) (per curiam); Benavides, 763 S.W.2d at 589.
The jury charge included the following instructions:
Now if you find from the evidence beyond a reasonable
doubt that on or about the 12th day of June. 2013, in Cameron
County. Texas. the defendant. MICHAEL DAVID RAMIREZ, did
then and there, while in the course of committing theft of
property and with intent to obtain or maintain control of said
property, intentionally or knowingly threaten or place BILLY
BRUCE GAUBATZ in fear of imminent bodily injury or death,
then you will find the defendant “guilty” of the offease of
Robbery, as alleged in the indictment.
Unless you so find from the evidence beyond a
reasonable doubt, or if you have a reasonable doubt thereof,
you will say by your verdict “Not Guilty" (as to the charged
offense of Robbery), and you will next consider whether or not
the defendant is guilty of the lesser included offense of Theft,
immediately below.
Now, if you find from the evidence beyond a reasonable
doubt that on or about the 12th day of June, 2013, in Cameron
County, Texas, the defendant, MICHAEL DAVID RAMIREZ, did
then and there unlawfully appropriate, by acquiring or otherwise
exercising control over property, to-wit: a weed eater, of the
State’s Brief Page 9
value of $50 or more but less than $500, from BILLY BRUCE
GAUBATZ, the owner thereof, without the effective consent of
the owner, and with intent to deprive the owner of the property,
then you will fmd the defendant “Guilty” of the lesser-included
offense of Theft.
Unless you so find from 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.”
(C.R. pp. 34-35).
Appellant argues he was egregiously harmed by the omission of the
“benefit-of-the-doubt” instruction from the charge because the entire focus
of his defense was to show the complaining witness did not feel threatened
and therefore Appellant was, at most, guilty of a class B theft. However, as
in Shelby and in Benavides, the charge in this case leaves no uncertainty
as to how to resolve any doubt regarding what verdict to return if the jury
believed Appellant was guilty but had reasonable doubt as to whether he
was guilty of robbery. No further “benefit of the doubt” instruction was
necessary. See Shelby, 724 S.W.2d at 140; Kihega, 392 S.W.3d at
837–38; Benavides, 763 S.W.2d at 589. Accordingly, Appellant was not
egregiously harmed by the trial court’s failure to sua sponte include the
“benefit of the doubt” instruction in the charge to the jury.
Appellant’s third issue should be overruled.
State’s Brief Page 10
State’s Response to Appellant’s Fourth Issue
In his fourth issue, Appellant complains of the State’s closing
argument concerning “community expectations”; however, Appellant
completely fails to present any argument in support of this issue. The
State responds by asserting that this Court should overrule Appellant’s
fourth issue for the reason that he has failed to adequately brief this issue.
The Rules of Appellate Procedure require the parties’ briefs to
contain clear and concise arguments with appropriate citations to
authorities. See Tex. R. App. P. 38.1(i). When a party provides no
argument or legal authority to support his appellate position, the issue is
inadequately briefed. See Russeau v. State, 171 S.W.3d 871, 881 (Tex.
Crim. App. 2005). Appellant completely fails to provide any argument in
support of his fourth issue. Therefore, Appellant’s fourth issue should be
overruled.
State’s Response to Appellant’s Fifth Issue
In his fifth issue, Appellant complains that the Prosecutor asked the
jurors to put themselves in the place of the victim. The State responds by
noting that this issue has not been preserved for appellate review.
State’s Brief Page 11
In order for an appellant to complain on appeal about erroneous jury
argument, including erroneous jury argument so prejudicial that an
instruction to disregard could not cure it, the appellant must show that he
lodged an objection during trial and pressed that objection to an adverse
ruling. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)
(holding that no error was preserved when appellant did not object to the
prosecution’s alleged comment during closing argument on the defendant’s
failure to testify); Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.--
Houston [14th Dist.] 2007, no pet.). In the present case, Appellant
complains that the State’s argument asked the jurors to put themselves in
the victim’s shoes; however, Appellant did not object to the State’s jury
argument (R.R. Vol. 7, p. 48), thus he has not preserved that issue for
appellate review.
Accordingly, Appellant’s fifth issue should be overruled.
State’s Response to Appellant’s Sixth Issue
In his sixth issue, Appellant argues that the State’s closing argument
was outside the record, and harmful. The State responds by asserting that
the argument was not improper.
State’s Brief Page 12
Proper jury argument falls within one of four categories: (1)
summation of the evidence; (2) reasonable deduction from the evidence;
(3) in response to argument of opposing counsel; and (4) plea for law
enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000). However, even when an argument exceeds the permissible
bounds of these approved areas, an error will not constitute reversible
error unless, in light of the record as a whole, the argument is extreme or
manifestly improper, violative of a mandatory statute, or injects new facts
harmful to the accused into the trial proceeding. Id. Counsel’s remarks
during final argument must be considered in the context in which they
appear. See Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim. App.
1983) (en banc). Attorneys may draw all reasonable, fair, and legitimate
inferences from the facts in evidence. See Shannon v. State, 942 S.W.2d
591, 597 (Tex. Crim. App. 1996); Ayala v. State, 267 S.W.3d 428, 433-34
(Tex. App.--Houston [14th Dist.] 2008, no pet.).
Appellant complains of the following argument by the prosecutor:
He said that he got out of there and at that point the victim was
close enough to the Defendant and he stopped. He stopped in
his tracks. As soon as he saw that -- he wanted his property,
but he stopped. As soon as he saw that, he stopped. Thank
God that he did stop because who knows what could have
happened if he hadn’t have stopped. Let’s say he wanted to go
State’s Brief Page 13
ahead and aside from just that confrontation --
MR. PADILLA: I’m going to object, Your Honor, that argument,
it goes outside of the evidence, Your Honor. It’s improper
argument.
MR. MARTINEZ: It’s closing arguments, Your Honor.
THE COURT: The objection is overruled. I'll give you some
leeway.
(R.R. Vol. 7, pp. 51-52).
Appellant asserts the argument does not fall into one of the four
categories of proper jury argument, but instead, is a request for the jury to
place themselves in the shoes of the victim.2 Appellant is incorrect.
Granted, a plea for abandonment of objectivity does not fit within the
four categories of proper jury argument. See Brandley v. State, 691
S.W.2d 699, 712 (Tex. Crim. App. 1985). However, there is a distinction
between asking the jury to fully appreciate the victim’s situation, including
the fear he experienced, which is proper, and asking how the victim would
want the defendant punished, which is improper. See Torres v. State, 92
S.W.3d 911, 922 (Tex. App.--Houston [14th Dist.] 2002, no pet.); see also
2
The State would first note that Appellant’s objection at trial does not comport
with his complaint on appeal; and therefore, Appellant has not properly preserved this
issue for appellate review. Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App.
2003).
State’s Brief Page 14
Linder v. State, 828 S.W.2d 290, 303 (Tex. App.--Houston [1st Dist.] 1992,
pet. ref’d). In the first instance, the prosecutor is merely summarizing the
evidence, making a reasonable deduction from the evidence, or making a
legitimate plea for law enforcement. Torres, 92 S.W.3d at 922. In the
second instance, the prosecutor is asking the jury to reach a verdict not on
an impartial, objective notion of justice, but on personal passions
“accelerated by the outrage every human being naturally feels toward one
who has wrongfully caused him pain, embarrassment, grief, or loss.” Id.
Here, the prosecutor’s argument is a summation of the evidence.
Because the argument made by the prosecutor was a summation of
the evidence, and thus within one of the four categories of proper jury
argument, the trial court did not err by overruling Appellant’s objection.
Accordingly, this Court should overrule Appellant’s sixth issue.
State’s Response to Appellant’s Seventh Issue
In his seventh issue, Appellant argues that the trial court erred in not
complying with article 36.27 in providing a supplemental instruction to the
jury. The State responds by asserting that the trial court did not violate
article 36.27.
State’s Brief Page 15
Appellant argues that the trial court erred in communicating with the
jury without complying with the provisions of article 36.27, in that the court
gave an oral answer to the jury’s communication which was not in writing.
See Tex. Code Crim. Proc. art. 36.27.
Article 36.27 states:
When the jury wishes to communicate with the court, it
shall so notify the sheriff, who shall inform the court thereof.
Any communication relative to the cause must be written,
prepared by the foreman and shall be submitted to the court
through the bailiff. The court shall answer any such
communication in writing, and before giving such answer to the
jury shall use reasonable diligence to secure the presence of
the defendant and his counsel, and shall first submit the
question and also submit the answer to the same to the
defendant or his counsel or objections and exceptions, in the
same manner as any other written instructions are submitted to
such counsel, before the court gives such answer to the jury,
but if he is unable to secure the presence of the defendant and
his counsel, then he shall proceed to answer the same as he
deems proper. The written instruction or answer to the
communication shall be read in open court unless expressly
waived by the defendant.
All such proceedings in felony cases shall be a part of the
record and recorded by the court reporter.
Id.
The record reflects that the following message was sent from the jury
foreman to the trial judge:
Need copy of police report to read. Need copy of victim
affidavit to read.
State’s Brief Page 16
/s/ Marina Alegria,
Presiding Juror
(C.R. p. 41).
After discussing the proposed answer with the attorneys, the trial
judge responded by bringing the jury into the courtroom and orally
informing them as follows:
Welcome back, ladies and gentlemen of the jury. Obviously,
the Court has received your written request. Ladies and
gentlemen of the jury, once again this is in many ways one of
the most frustrating answers that the Court must provide in all
cases, but the response to this is by law the Court is not
allowed to answer your question nor is it allowed to provide to
you the documents requested. You may only review the
documents that have been admitted into evidence.
With that, I send you back to your deliberations and
please proceed. Thank you.
(R.R. Vol. 7, pp. 55-56).
The Court of Criminal Appeals has uniformly held that a
communication between the court and the jury, although not made in
compliance with provisions of article 36.27, which does not amount to an
additional instruction by the court upon the law or some phase of the case
does not constitute reversible error. Nacol v. State, 590 S.W.2d 481, 486
(Tex. Crim. App. 1979); Brown v. State, 505 S.W.2d 850, 857 (Tex. Crim.
App. 1974); Arrevalo v. State, 489 S.W.2d at 572; Allaben v. State, 418
State’s Brief Page 17
S.W.2d 517, 520 (Tex. Crim. App. 1967).
In Brown, the trial court gave instructions to the jury outside the
presence of the defendant and not in open court. The court held that,
“while the trial court should not have given such instructions to the jury
while not in open court and outside the presence of the appellant, such
instructions amounted to no more than a restatement and reminder of the
earlier instructions given the entire jury panel. As such, the trial court
committed no reversible error.” Brown, 505 S.W.2d at 857.
In Arrevalo, in response to a question posed by the jury foreman, the
trial court answered in part, “At this time I do not feel that you have
deliberated a sufficient length of time to fully eliminate the possibility of you
being able to arrive at a verdict, so I will ask you to continue to deliberate.
You may go with the bailiff.” The court stated, “It has been uniformly held
by this court that a communication between the court and the jury,
although not in compliance with the statutes, which does not amount to
additional instructions by the court, does not constitute reversible error.”
Arrevalo, 489 S.W.2d at 572.
In Nacol v. State, the trial court communicated with the jury while the
defendant was not present in open court. The jury wrote, “We want to
State’s Brief Page 18
know how many days you get at T. D. of Corrections for the days served.”
and “We want to know how much time would be assessed for probation
after he (if) gets out of prison on a two year sentence.” The judge wrote
back, “You are only to consider what is contained in the charge.” The court
concluded that no error had been shown and held “that a communication
between the judge and the jury, although not in compliance with article
36.27, is not reversible error unless it amounts to an additional instruction
by the court upon the law or some phase of the case.” Nacol, 590 S.W.2d
at 486.
Finally, in Rodriguez, the San Antonio Court dealt with a fact situation
very similar to the present case, where the jury asked to be provided with
additional documents which were never submitted into evidence. The trial
court responded by informing the jury: “The exhibits that you have at hand
are the only exhibits admitted into evidence. The exhibits requested by
you are not in evidence.” Rodriguez v. State, 625 S.W.2d 101, 102 (Tex.
App.--San Antonio 1981, pet. ref’d). The San Antonio Court found that
although the trial judge failed to follow the procedure set forth in article
36.27, no statutory violation occurred because “no additional instructions
were given as to the law in regard to the offense or the facts.” Id. At 103.
State’s Brief Page 19
Likewise in the present case, the jury was asking for documents that
were not received in evidence. The trial court answered the jury’s request
with an answer essentially the same as the trial court did in Rodriguez.
Thus, the case law is clear that the answer provided by the trial judge in
the present case was not an additional instruction in regard to the law or
the facts of the case. Therefore, no violation of article 36.27 is presented
for review.
Accordingly, Appellant’s seventh issue should be overruled.
State’s Brief Page 20
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that this Court will overrule Appellant’s issues on appeal, and affirm both
the judgment of conviction and the sentence herein.
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
By: /s/ René B. González
René B. González
Assistant District Attorney
State Bar No. 08131380
rgonzalez1@co.cameron.tx.us
Attorneys for the State of Texas
State’s Brief Page 21
CERTIFICATE OF COMPLIANCE
I certify that this document contains 4,385 words (excluding the
cover, table of contents and table of authorities). The body text is in 14
point font, and the footnote text is in 12 point font.
/s/ René B. González
René B. González
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s Appellate Brief was e-
mailed to Mr. Larry Warner, Attorney at Law, 3109 Banyan Drive,
Harlingen, Texas 78550, at Office@larrywarner.com on the 20th day of
April, 2015.
/s/ René B. González
René B. González
State’s Brief Page 22