Ramirez, Eric v. State

Affirmed and Memorandum Opinion filed April 25, 2006 Affirmed and Memorandum Opinion filed April 25, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00417-CR ____________ ERIC RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 999,189 M E M O R A N D U M  O P I N I O N Challenging his conviction for aggravated assault, appellant Eric Ramirez asserts that the trial court abused its discretion in admitting evidence of extraneous offenses and bad acts and that the evidence is legally insufficient to support his conviction. We affirm. I. Factual and Procedural Background On August 30, 2004, James Middleton IV and some of his friends walked down the street toward another friend=s home. While walking, Middleton noticed two vehicles B a white Chevy Lumina and a Chevy Tahoe B drive past them. A few minutes later, the same two vehicles passed them again as they turned the corner and walked down a different street. As the group continued toward their friend=s home, Middleton noticed that the Chevy Lumina stayed close by, passing by about three times. When Middleton and his friends stopped to discuss why this vehicle continued to follow them, the vehicle drove right up to them and Middleton=s friends could see that appellant was the driver. Appellant then lifted his hands into the air, indicating that he wanted to engage in a brawl. Appellant turned the vehicle around the corner, went around the block, and drove toward Middleton and his friends once again. Appellant slowed the vehicle almost to a stop and the barrel of a sawedBoff shotgun appeared out of the back window and fired three times. A bullet pierced through Middleton=s leg and he collapsed. Appellant immediately sped away from the scene. Emergency personnel arrived and Middleton was transported via life flight from the scene. The police broadcasted a description of the suspect vehicle. Shortly thereafter, Officer Donal Tipps saw a Chevy Lumina driving toward him. Officer Tipps activated his lights and pulled the vehicle over. The driver of the vehicle was a female. Appellant was in the passenger seat and was extremely nervous and fidgety. Officer Tipps instructed appellant to exit the car. After handcuffing appellant, Officer Tipps patted appellant down for safety and, in the process, found a pair of brass knuckles in appellant=s pocket. Officer Tipps brought appellant to another location, where Middleton=s friends immediately identified appellant as the individual who had been the driver of the Chevy Lumina at the time of the shooting. Appellant was arrested and brought in for questioning. Officers Joe Hernandez and Joe Ortiz took a videotaped statement from appellant. Initially, appellant denied any involvement in the shooting. However, after some more questioning, appellant volunteered information that he was the driver of the Chevy Lumina; appellant, however, insisted that he did not know that the backseat passengers were in possession of a sawed-off shotgun. Appellant stated that he offered to give the passengers a ride home and, while he was driving, one of them pointed at a group of African-American men and asked appellant to circle the block and pass by them again. Appellant stated that when they passed by the men again, he heard one of the backseat passengers state, Athat=s the guy.@ Appellant pulled the vehicle over toward the men only after his friend=s prompting. Appellant testified that while he was trying to insert a CD into the player, someone in the backseat shot at the men with a sawed-off shotgun. Appellant claimed he drove his passengers to another street and ordered them out of the car. Officer Hernandez testified that he did not believe appellant and thought appellant and his friends were looking for a fight and appellant knew the backseat passengers had a sawed-off shotgun. Appellant=s brother, John Ramirez testified at trial that appellant intended to fight a Ablack man@ on the day of the shooting. Ramirez stated that there was animosity between the Hispanic and black students and the man who was supposed to fight appellant never showed up. Ramirez stated that they drove to a neighborhood store and met up with other friends driving another vehicle. Ramirez stated that two of the passengers in that vehicle got into the backseat of the car appellant was driving. Ramirez testified that four black men walking down the street gave them a Adirty look.@ Ramirez testified that when they drove by again, he instructed appellant to Aget ready to fight.@ According to Ramirez, appellant slowed down as they approached the men, and as Ramirez jumped out of the car, he noticed one of the men in the backseat pull out a sawed-off shotgun and shoot at the group of black men. Ramirez stated that neither he nor appellant knew the men in the backseat had a sawed-off shotgun. A jury found appellant guilty of aggravated assault and assessed punishment at six years= confinement in the Texas Department of Criminal Justice, Institutional Division. II. Issues Presented Appellant asserts the following points on appeal: (1) The trial court erred in admitting into evidence the brass knuckles found on appellant after appellant was detained for the offense of aggravated assault; (2) The evidence is legally insufficient to support his conviction for aggravated assault because there is no evidence that appellant was a party to the offense; and (3) The trial court erred in admitting into evidence appellant=s extraneous offense of unlawfully carrying of a weapon while he was out on bond for the instant offense. III. Analysis A. Did the trial court abuse its discretion in admitting into evidence the brass knuckles found on appellant after he was detained for the instant offense of aggravated assault? In his first issue, appellant contends the trial court abused its discretion in admitting into evidence the brass knuckles that were found on appellant when he was searched after being detained for suspected aggravated assault. The State argues that appellant waived this complaint by failing to assert a timely objection in the trial court. We agree. Although appellant objected to the admission of the brass knuckles during a pre-trial hearing, he affirmatively stated that he had Ano objection@ when the brass knuckles were actually offered into evidence at trial. By stating that he had Ano objection,@ appellant clearly waived any alleged error in the admission of the brass knuckles. See Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (concluding that an affirmative statement of no objection during trial waives any pretrial objection to the evidence); King v. State, 91 S.W.3d 375, 378 (Tex. App.BTexarkana 2002, no pet.) (stating that when a defendant affirmatively asserts during trial he has Ano objection@ to the admission of the evidence in question, he waives any error in the admission of the evidence). Accordingly, we overrule appellant=s first issue. B. Is the evidence legally sufficient to support appellant=s conviction for aggravated assault? In his second issue, appellant contends that the evidence is legally insufficient to support his conviction for aggravated assault. More specifically, he contends that there is no evidence proving that he participated in the crime or was a party to the aggravated assault. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another. Tex. Pen. Code Ann. ' 22.01(a)(1) (Vernon 2003). To establish aggravated assault, the State must show that a person committed assault and either: (1) caused serious bodily injury to another; or (2) used or exhibited a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. ' 22.02(a) (Vernon 2003); Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001). ASerious bodily injury@ is bodily injury that creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any Abodily member or organ.@ Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See Tex. Pen. Code Ann. ' 7.01 (Vernon 2003). Under section 7.02(a)(2), a person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense;(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. Tex. Pen. Code Ann. ' 7.02(a) (Vernon Supp. 2005). Appellant and his brother both testified that they did not know that the backseat passengers had a sawed-off shotgun and intended to shoot at the group of black men. Therefore, appellant argues, there is no evidence that he was a party to the offense. We find no merit in appellant=s argument. The record contains sufficient evidence to prove appellant was a party to the aggravated assault on Middleton. Appellant was the driver of the vehicle involved in the drive-by shooting. He drove the vehicle by Middleton and his friends several times before the backseat passenger reached out of the back window with the gun and shot. Just before the shooting, appellant drove up to the group and threw his hands up in a gesture suggesting that he wanted to fight. On the final pass by the group of men, appellant slowed the vehicle down right before the backseat passenger opened fire, which suggests that appellant was aware of what was about to happen. Following the shooting, appellant sped away. Appellant=s backseat passenger did not use a small weapon in the assault but a sawed-off shotgun, which would be difficult to conceal from the driver of the vehicle, who was sitting in close proximity to the shooter. Furthermore, appellant admitted during his videotaped statement that he followed Middleton and his friends for several blocks in the vehicle just before the shooting. Appellant admitted that he circled the block again and pulled the car toward Middleton. Officer Hernandez testified that he believed appellant was searching for a fight and that appellant knew the shotgun was in his car. In evaluating alleged attempts to aid the other person to commit the offense, the fact finder may consider events occurring before, during or after the commission of the offense. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Furthermore, circumstantial evidence may be sufficient to show that one is a party to an offense. See id. Intent may be inferred from circumstantial evidence such as the acts, words, and conduct of the accused. See Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996). In addition, presence at the scene during a crime is a circumstance tending to prove guilt which, when combined with other facts, may suffice to show that an accused was a participant in the crime. Ortiz v. State, 577 S.W.2d 246, 248 (Tex. Crim. App. 1979). Appellant=s role as driver of the vehicle involved in the drive-by shooting and his presence at the crime scene, coupled with his actions before and after the shooting, provides sufficient evidence to convict him as a party to the offense of aggravated assault. See Helms v. State, 493 S.W. 2d 227, 229 (Tex. Crim. App. 1973) (holding that evidence that defendant was in a vehicle from which a shot was fired sufficient to prove he was a party to the offense); Armstead v. State, 977 S.W.2d 791, 797B98 (Tex. App.BFort Worth 1998, pet. ref=d) (finding that evidence that defendant drove the vehicle from which the passenger shot a victim and defendant was a member of the victim=s rival gang supported defendant=s conviction under law of the parties); Smith v. State, 781 S.W.2d 675, 678 (Tex. App.CDallas 1989, pet. ref=d) (stating that evidence that the defendant drove slowly past the pickup truck twice and studied the truck was sufficient to support conviction under law of the parties even though appellant remained across the street during the actual crime); Buitureida v. State, 684 S.W.2d 133 (Tex. App. BCorpus Christi 1984, pet. ref=d) (holding that evidence showing that defendant was the driver of the vehicle from which the victim was shot and the car drove slowly past the scene at least three times before the victim was shot was sufficient to support the defendant=s conviction as a party to the offense). We conclude that, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant acted as a party within section 7.02(a)(2) of the Texas Penal Code. Accordingly, we overrule appellant=s second issue. C. Did the trial court abuse its discretion in admitting into evidence the fact that appellant was charged with the offense of unlawfully carrying a weapon while he was out on bond for the instant case? In his third issue, appellant contends that the trial court abused its discretion in admitting evidence that he had been charged with the offense of unlawfully carrying a weapon while he was out on bond for the instant case. More specifically, appellant complains that admission of this extraneous offense served no purpose other than to inflame the minds of the jury and prejudice him. The State contends that admission of this extraneous offense was proper as rebuttal to appellant=s defensive theory that he did not know the passenger in the backseat possessed a sawed-off shotgun at the time of the drive-by shooting. The State also contends that any alleged error in the admission of this extraneous offense was harmless. We review a trial court=s admission of extraneous offense evidence for an abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh=g); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.BHouston [1st Dist.] 2002, pet. ref=d). A trial court does not abuse its discretion as long as its decision to admit evidence is within the Azone of reasonable disagreement.@ Montgomery v. State, 810 S.W.2d 372, 391‑92 (Tex. Crim. App. 1991) (op. on reh=g). Further, a trial court=s decision regarding admissibility of evidence will be sustained if correct on any theory of law applicable to the case, even when the court=s underlying reason for the decision is wrong. Romero v. State, 800 S.W.2d 539, 543‑44 (Tex. Crim. App. 1990). Evidence may be excluded under Texas Rule of Evidence 403 if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). In conducting a Rule 403 analysis, courts consider the following factors: (1) the strength of the extraneous offense evidence to make a fact of consequence more or less probable; (2) the potential of the extraneous offense to impress the jury in some irrational but indelible way; (3) the amount of time during trial that the State requires to develop evidence of the extraneous misconduct; and (4) the need by the State for the extraneous evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Texas Rule of Evidence 404(b) states that evidence of extraneous offenses is not admissible at the guilt‑innocence phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Tex. R. Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). Extraneous offense evidence may be admissible, however, when it has relevance beyond character‑conformity, for example, to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Moses, 105 S.W.3d at 626. Rebuttal of a defensive theory is Aone of the permissible purposes for which relevant evidence may be admitted under Rule 404(b).@ Moses, 105 S.W.3d at 626. We conclude that the State=s argument that the evidence was admissible to rebut a defensive theory was a proper basis for the admission of the extraneous offense evidence in this case. Extraneous offense evidence may be properly admitted to Arebut the various defensive theories@ propounded by a defendant, but it may not be admitted to address a false impression left by the defendant. See Wheeler, 67 S.W.3d at 887B88. In this case, appellant=s defensive theory was that he was unaware that the passengers in the backseat of his vehicle possessed a sawed-off shotgun. The evidence in question shows that on the evening in question, appellant possessed a weapon (brass knuckles) and intended to Afinish what had been started.@ This evidence tends to rebut his defensive theory that he did not have any idea that the passengers in his backseat had a sawed-off shotgun in their possession. Appellant=s knowledge that the passengers in his backseat possessed a weapon is made more probable with the admission of this extraneous offense evidence. Therefore, the trial court did not abuse its discretion in admitting this extraneous offense into evidence. Even if the trial court had erred in admitting this extraneous offense evidence, it would be harmless. To determine whether the erroneous admission of evidence amounts to reversible error, we look to Texas Rule of Appellate Procedure 44.2(b), governing non-constitutional error in criminal cases. See Tex. R. App. P. 44.2(b). Neither appellant nor the State bears the burden of demonstrating whether appellant was harmed by the trial court=s error. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). Rather, it is this court=s responsibility to assess, from the context of the error, whether the judgment requires reversal because the error affected appellant=s substantial rights. See id. Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury=s verdict. Id. at 3B4. Given the overwhelming evidence of guilt, as discussed above, we cannot conclude that appellant=s substantial rights were violated. Accordingly, we overrule appellant=s third issue. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed April 25, 2006. Panel consists of Justices Hudson, Fowler, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).