Jesse M. Ramirez v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-211-CR





JESSE M. RAMIREZ,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0106346, HONORABLE JON N. WISSER, JUDGE PRESIDING

After finding appellant guilty of the offense of attempted murder, Tex. Penal Code Ann. §§ 15.01 (West Supp. 1993) & 19.02 (West 1989), the jury assessed punishment, enhanced by two prior felony convictions, at confinement for life. Appellant asserts two points of error. In his first point of error, appellant contends the evidence is insufficient to support the conviction because there is a material variance between the indictment and the evidence adduced at trial regarding the nature of the weapon used as a deadly weapon. In his remaining point of error, appellant urges that the trial court erred in admitting an object purporting to be the weapon used by appellant in that it differed significantly from the one allegedly used. We will overrule appellant's points of error and affirm the judgment of the trial court.

In the early morning hours of September 1, 1990, a brief fight occurred between two men who were walking along St. Elmo Road in Austin and two men who had passed them in a car moments earlier. The fight began as the result of words spoken by one of the occupants of the vehicle that was answered by a "flipped finger" of one of the men walking along the road. Jason Lujan, one of the pedestrians, testified that five or ten minutes after the initial encounter, the car reappeared and its occupants, identified as Mario Ugalde and appellant, stopped the vehicle, got out and started fighting with Lujan and his companion, Anthony Scott. Lujan related that appellant "opened the trunk [of the car] and he grabbed something out and he was swinging it at Scott." Dr. David Jacoby, emergency room physician at Brackenridge Hospital, treated Scott for a "severe brain injury" resulting from a "real high magnitude of force, very high velocity with a hard, firm object." Dr. Jacoby stated that he gave Scott "less than five-percent" chance for survival after his initial examination. Jimmy Scott, father of the victim, testified that as a result of the beating, his son is only able to see out of one eye, cannot swallow, can only say a few words, doesn't have the use of his left arm or leg, and is not able to use the commode by himself.

The indictment alleged in pertinent part that appellant "with the specific intent to commit the offense of murder, did then and there attempt to cause the death of an individual, Anthony Scott, by hitting him on and about the face with a long metal object unknown to the grand jury. . . ." Appellant's contention that there is a variance between the indictment and the evidence is based on the alleged absence of testimony to show that the grand jurors exercised due diligence in determining the exact object used in the offense. Specifically, appellant urges that if the grand jury had interviewed Ugalde and Austin Police Officer Ernesto Pedraza, it would have been able to conclude that the object described by the grand jury as "unknown" was actually a tire jack similar to the one introduced by the State for demonstrative purposes. James Timberlake, a member of the grand jury, testified that the grand jury was unable to "determine the exact nature of the weapon that had been used as a deadly weapon."

Appellant relies on cases that hold that the State has the burden of proof on "both the issue of whether the object was unknown to the grand jury and whether reasonable diligence was utilized to ascertain its nature." See, e.g., Washington v. State, 677 S.W.2d 142, 145 (Tex. App.--Dallas 1984, no pet.). We hold that the State bears such burden only where the evidence at trial shows what object was used to inflict the injury. The applicable law is set forth in Matson v. State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991):

When an indictment alleges that the manner or means utilized to inflict an injury is unknown and the evidence at trial does not show what type of object was used, a prima facie showing exists that the object was unknown to the grand jury. If, however, evidence at trial shows what object was used to inflict the injury, an issue is raised with respect to whether the grand jury had information, when it handed down the indictment, as to the object used. Only in such a case, must the State prove that the grand jury did not know the manner or means of inflicting injury and that the grand jury used due diligence in its attempts to ascertain the manner or means.

(citations omitted). We must determine whether the evidence adduced in the trial court showed what weapon was used to inflict the injuries to Scott.

Lujan testified that appellant opened the trunk and grabbed "something long" that looked "like a pipe or something like that." Appellant's companion and driver of the car on the occasion in question, Mario Ugalde, stated that appellant "grabbed" something out of the trunk that "looked like the [car] jack" the State introduced in evidence. Roel Silva, a sixteen-year-old friend of Ugalde, testified that Ugalde told him that appellant hit somebody with a "crowbar" on the occasion in question. Officer Pedraza testified that Lujan told him that when the car returned, the "subjects in the car had jumped out again with some pipes or something similar to that and attacked them."

We find that it was not "conclusively established" in the trial court what the weapon was. See Copeland v. State, 848 S.W.2d 199, 200 (Tex. App.--Corpus Christi 1992, pet. ref'd). We hold that the "unknown" allegation in the indictment was supported by the evidence. Thus, the State was not required to show that the grand jury exercised due diligence in its attempts to determine the weapon used in the offense. Appellant's first point of error is overruled.

In his second point of error, appellant asserts that the probative value of the tire jack offered by the State as being similar to the object used was substantially outweighed by the unfair prejudice it created. Appellant contends that the tire jack introduced significantly differed from the one used in that it had a "black base" attached which made it look more deadly than the weapon used. "[T]he admissibility of a 'similar type' weapon or instrument used in the commission of an offense is made upon the same basis as a decision is made on other types of evidence, and this decision must rest largely in the discretion of the trial court." Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981). A "similar type" weapon as the one used in the commission of the crime may be admissible as demonstrative evidence if:

(1) the original is not available;

(2) if available, the original would be admissible;

(3) it is relevant and material to an issue in controversy;

(4) its probative value outweighs any inflammatory effect; and,

(5) the jury is instructed that the object is not the object used in the commission of the crime, and is to be considered by the jury solely as evidence that demonstrates or illustrates what the object used in the offense looks like.

Miskis v. State, 756 S.W.2d 350, 352 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). It was not shown that the weapon used in the instant case was available. Clearly, the original weapon used in inflicting the injuries would have been relevant and admissible. Ugalde testified that the car jack the State introduced as demonstrative evidence looked similar to that he saw in appellant's hand except for the "black part" that "comes off." Appellant objected that Ugalde's testimony that the heavy black part was not on the jack would not sufficiently dispel the prejudicial effect of the evidence. Appellant further objected that there was no testimony about the size of the jack or its configuration. The trial court's ruling on the admissibility of the exhibit, made in the presence of the jury, was that it would be admitted for demonstrative purposes only, the trial court stating:

That means, as you heard, this is not the--the State does not contend this is the actual device that you heard testified about. It is only a representative sample of that type of device. And you also heard testimony that the black portion on that is apparently not on the one that the witness has described.

With those limitations it will be admitted for demonstrative purposes only.

The trial court's ruling served to sufficiently advise the jury that the exhibit was not the device used in the commission of the crime and that it was admitted only as being representative of the object used. In addition, the court noted that the witness testified that the black portion was not on the device used.

The only remaining question is whether the probative value of the demonstrative evidence outweighs any inflammatory effect. See Tex. R. Crim. Evid. 403. In light of the evidence elicited from the witnesses relative to the description of the device used to inflict the victim's injuries, and the court's ruling limiting the purpose for which the exhibit was admitted, we find that the probative value of the evidence outweighed any inflammatory effect. We hold that the trial court did not abuse its discretion in admitting the exhibit. Appellant's second point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

Before Chief Justice Carroll, Justices B. A. Smith and Davis^*

Affirmed

Filed: January 12, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).