Roberto Francisco Ramirez v. State

Affirmed and Memorandum Opinion filed July 26, 2007 Affirmed and Memorandum Opinion filed July 26, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00538-CR ____________ ROBERTO FRANCISCO RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 1070540 M E M O R A N D U M   O P I N I O N Appellant, Roberto Francisco Ramirez, appeals his conviction of capital murder and sentence of life imprisonment. In his first two points of error, appellant challenges the legal and factual sufficiency of the evidence. In his third point of error, appellant argues that the trial court erred when it refused to allow a police report into evidence. We affirm. I. Background On October 2, 2003, the complainant, Damian Delacruz, and his sister, Antelma Delacruz, drove into Houston where the complainant was to catch a bus to Mexico. Instead of going to Mexico, the complainant cashed in his bus ticket for a refund and went to a nearby area where locals gathered to drink and visit. The complainant was found beaten to death near that area the following morning, October 3, 2003. Armando Cantu, who frequented the area, testified that the complainant arrived at the gathering area sometime on the afternoon of October 2nd. Cantu testified he heard appellant talking about the Anew guy@ and appellant said Asomething about robbery.@ He said appellant told him that they Astarted to [rob him] but they didn=t go through with it.@ Cantu then clarified that appellant was probably referring to Afuture plans@ of robbing the complainant and not something they had already tried. Cantu then walked away from appellant and began talking to someone else. Cantu testified that he did not see where appellant was during this time. A short time later, Cantu, appellant, and appellant=s wife drove to a nearby store so that Cantu could cash a check. Cantu stated that appellant was Afalling down drunk@ when he got in the car. Appellant and his wife were arguing during the drive back to the gathering area, and Cantu testified that appellant told his wife Ato shut up or else he [was going] to do her like he done him.@ Appellant did not specify whom he was referring to when he said Ahim.@ Because of the argument, Cantu got out of the car before they had returned and walked to a bar located across the street from the gathering area. Cantu did not see appellant again until trial. After about two hours at the bar, Cantu walked outside behind the bar to relieve himself. It was then that he noticed a pair of ankles on the ground in some nearby trees. Cantu could not see the rest of the body from his location. Jose AChico@ Martinez, another regular at the gathering area, testified that the complainant was already there when he arrived on October 2nd. At some point in time, Chico observed the complainant walk away from the group, with appellant and Chico=s half-brother, Manuel Reyes, following behind. Chico eventually lost sight of the three. Chico testified that Reyes returned after approximately thirty minutes, but he never saw appellant or the complainant return. On cross-examination, Chico testified that when Reyes returned, he said A[t]hat the other hadn=t resisted so much.@ Chico further testified that his half-brother was Aa little nervous@ when he learned that the complainant had died, and that Reyes told him Athat he didn=t want to be involved in the police.@ He also testified that appellant appeared to be drunk on the day of the incident. Alexander Reyna was also at the gathering area at the same time as the complainant. When Reyna arrived, appellant was Aquite intoxicated,@ as evidenced by the fact he was wobbling from side to side and Awas almost falling off the chair that he was sitting on.@ Reyna testified that he observed Manuel Reyes forcibly take the complainant away from the group. Reyna stated that he did not see appellant go with them, although he later clarified on cross-examination that he didn=t know whether appellant went with them. Reyna testified that he left the area approximately thirty minutes after he observed Reyes take away the complainant, and that he did not see Reyes or the complainant return before he left. Arellano Hernandez, another local, was also with the group at the same time as the complainant. At some point, Hernandez left and went home to take a nap. He returned to the gathering area that evening and observed Manuel Reyes throw a piece of lumber into a trash dumpster. He testified that he did not see the complainant when he returned. Detective Abbondandolo (ADetective Abby@) was dispatched to the crime scene on the morning of October 3, 2003. Detective Abby found the complainant behind a convenience store near the gathering area, beaten to death, face down, and nude from the waist down. Near the complainant=s body, the detective recovered what he believed to be the complainant=s clothes and wallet, which had no money inside. Detective Abby testified that the fact that the complainant=s wallet was pulled out and had no money in it indicated robbery, and that the complainant=s pants may have been removed in a search for money and other valuables. Arelia Granados, appellant=s next-door neighbor, testified that she saw Detective Selvera knocking on the door of appellant=s house on October 6, 2003. After several minutes of knocking on both the front and back doors of the house and receiving no response, Detective Selvera went to Granados= house and asked about appellant. Following the detective=s departure, Granados saw appellant come out of the back door of his house and place a pair of boots under some bricks below the back of the house. Detective Selvera was assigned to investigate the death of the complainant. After developing appellant as a suspect, Detective Selvera attempted to contact appellant at his home on October 6, 2003. After receiving no response, Detective Selvera went next door and visited with Arelia Granados. Detective Selvera talked with Granados again the following day, and based on that conversation, Detective Selvera requested and received consent to search appellant=s home from appellant=s wife. Upon searching appellant=s home, Detective Selvera found a pair of steel-toed boots behind some bricks underneath the back of the house. Detective Selvera was unable to locate appellant at that time. Eventually, Detective Selvera learned that appellant was being held by federal marshals in Del Rio, Texas. Apparently, appellant had been arrested while trying to enter Mexico from the United States. Detective Selvera and Detective Leroy Benavides went to Del Rio to question appellant. During the course of this questioning, appellant admitted to having fought with the complainant on October 2, 2003 near the location where the complainant=s body was found. Appellant stated that he fought the complainant Aover some beers.@ Appellant also stated that he was wearing boots the day of the fight and that he hid the boots because A[h]e got scared that they were saying that I beat him.@ Appellant later said that he hid the boots Aso they wouldn=t take them from me because they were expensive.@ Appellant said that he was fighting mostly with his hands and that the complainant was also throwing punches at him. He initially stated he did not remember kicking the complainant, but later admitted to kicking the complainant in Athe balls@ and Ain the shins.@ Upon finding out that the complainant had died, appellant left Houston and tried to go to Mexico, he explained: A[s]ince I had fought with him, well, I got scared.@ Appellant stated that he was alone when he fought the complainant, and that when he left, the complainant was beaten, but alive and sitting up cursing at him. Appellant denied robbing the complainant. Detective Selvera testified that the boots he recovered from appellant=s house tested negative for DNA. He also testified that near the area where the complainant was found, there were a number of items, such as Adebris, cinder blocks, rocks, [and] sticks@ that could have been used as deadly weapons. On cross-examination, Detective Selvera testified that while interviewing Jose AChico@ Martinez during his investigation, Chico stated that his half-brother, Manuel Reyes, was Aextremely nervous@ when he saw the police the day after the incident. Dr. Sarah Chauvin, a medical examiner at the Harris County Medical Examiner=s Office, reviewed the autopsy performed on the complainant. Dr. Chauvin testified that the external examination of the complainant=s body revealed multiple abrasions and contusions, including one large contusion on the back of his head and a laceration extending from that contusion. There was also a contusion on the complainant=s forehead, a scrape on his right cheek and on his nose, three linear contusions on his left cheek, large areas of bruising on his neck and jaw, and a bruise over his left eyelid. Dr. Chauvin testified that there was bruising on the neck and jaw indicating blunt trauma which possibly could have been caused by a shoe or boot. An internal examination of the complainant=s body showed that the complainant suffered fractured ribs on both sides of his body, which Dr. Chauvin testified, must have been caused by Aa pretty severe force.@ The entire back area of the complainant=s head was discolored and bruised Abasically with a few areas that are spared or white where the bruising isn=t.@ The internal examination also reflected deep bruising where the laceration was located on the head. There was severe bleeding underneath the backside of the complainant=s skull indicating extensive force to the head. Dr. Chauvin testified that there were also several fractures of the skull itself, which were fatal injuries. She explained that it would take Asevere force,@ generally from multiple strikes, to cause the complainant=s injuries. Dr. Chauvin testified that the injuries could have been caused by a blunt instrument, or by kicking or stomping with a shoe or boot. She stated that she did not believe that a fist alone could have caused the injuries that the complainant sustained to his skull, but that hands banging the head against something firm, such as cement, could have caused such injuries. On cross-examination, Dr. Chauvin testified that she could not determine whether the less severe injuries on the complainant=s body were caused at or near the same time as the more severe injuries. Thus, Dr. Chauvin admitted, there would be no way of knowing if the less severe injuries were caused a few hours before the fatal injuries. II. Analysis A. Sufficiency of the Evidence In his first and second points of error, appellant contends that the evidence is legally and factually insufficient to establish that he committed capital murder. A person commits the offense of capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit a robbery. See Tex. Pen. Code '' 19.02(b)(1), 19.03(a)(2). The substance of appellant=s argument is that the evidence does not sufficiently establish his identity as the perpetrator. When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard of review is the same for direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). The fact-finder is the exclusive judge of the witnesses= credibility and of their testimony=s weight, and it is within the fact-finder=s exclusive province to resolve any evidentiary conflicts. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). AIn reviewing the sufficiency of the evidence, we should look at >events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.=@ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. After reviewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found that appellant committed capital murder. The State offered two witnesses who were present at the scene on the day of the incident. Armando Cantu testified he heard appellant talking about the Anew guy@ and appellant said Asomething about robbery.@ Cantu also testified that appellant told his wife Ato shut up or else he [was going] to do her like he done him.@ Jose AChico@ Martinez observed the complainant walk away from the gathering area and appellant and Manuel Reyes follow behind. Chico said that Reyes returned but that he never saw appellant or the complainant return. While neither witness testified to actually seeing the killing, both witnesses offered facts from which a jury could reasonably infer that appellant robbed and killed the complainant, and the law is clear that circumstantial evidence alone can be sufficient to establish guilt. Id. In addition to the scene witnesses, the State offered other evidence to prove appellant=s identity as the perpetrator. Arelia Granados, appellant=s next door neighbor, testified that a few days after the complainant=s death, she saw Detective Selvera knock on appellant=s front and back doors for several minutes with no response. After the detective left the area, Granados watched appellant come out of the back door of his house and hide his boots behind some bricks below the back of his house. After speaking with Granados the following day, Detective Selvera obtained consent to search appellant=s home and found a pair of steel-toed boots behind some bricks under the back of the house. The transcript of Detective Selvera=s questioning of appellant was also read into evidence. During this questioning, appellant admitted to fleeing the United States for Mexico after learning the complainant died, saying: A[s]ince I had fought with him, well, I got scared.@ Appellant also admitted to hiding his boots because he Agot scared that they were saying that I beat him.@ Also during this line of questioning, appellant stated that he had fought the complainant on October 2, 2003 near the area where the complainant=s body was found. Appellant said that he mostly fought with his hands, but later admitted to kicking the complainant as well. Appellant denied robbing the complainant and said that when he left the complainant, he was alive and cursing. We note that it is the jury=s sole province whether to believe appellant that he only Afought@ the complainant, or whether to infer, after considering appellant=s admission of violence toward the complainant along with all of the other evidence, that appellant actually killed and robbed the complainant. Wesbrook, 29 S.W.3d at 111 (AThe jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence.@). Additionally, Detective Selvera testified that there were a number of items, such as Adebris, cinder blocks, rocks, [and] sticks@ found near the area of the complainant=s body that could have been used as deadly weapons. Dr. Sarah Chauvin testified at length as to the injuries appellant suffered leading to his death. She testified that blunt force trauma from multiple blows was the cause of death and concluded that the fatal injuries to the skull could have been caused by a blunt instrument, by kicking or stomping, or by the complainant=s head being banged into something firm, such as cement. We hold, after viewing all of the evidence in support of the verdict and the inferences therefrom, that a rational trier of fact could have found that appellant intentionally killed the complainant in the course of committing or attempting to commit robbery, especially considering appellant=s admission of fighting the complainant the day of the crime in the area where the complainant=s body was found. When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact‑finder=s determination is clearly wrong and manifestly unjust, or (2) whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414‑15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we defer to the fact-finder=s determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). In contrast to the State=s theory of the case, appellant attempted to show that he only fought with the complainant and that someone else was responsible for his death. As support for his contention that he only fought with the complainant, appellant relies on his statements to Detective Selvera during questioning. Appellant stated that he fought the complainant Aover some beers,@ and that when he left, the complainant was alive and sitting up cursing at him. Appellant also denied robbing the complainant. The jury considered appellant=s statements along with all the other evidence offered at trial, and it was within their sole discretion to believe whether appellant had merely Afought@ with the complaint, or whether he intentionally killed and robbed the complainant. See Swearingen, 101 S.W.3d at 97; Wesbrook, 29 S.W.3d at 111. On appeal, appellant suggests that he was too intoxicated to have even fought the complainant; however, he fails to reconcile this assertion with his admission of having fought the complainant. Appellant argues that the evidence indicates that Manuel Reyes alone, not appellant, was responsible for the death of the complainant.[1] Appellant points to the following pieces of evidence in support: (1) Alexander Reyna=s testimony that he saw Reyes forcibly take the complainant away from the group; (2) Arellano Hernandez=s testimony that he saw Reyes throw a piece of lumber into the trash combined with Dr. Chauvin=s testimony that such an instrument could have caused the complainant=s fatal injuries; (3) Chico=s testimony that his half-brother, Reyes, told him Athat the other hadn=t resisted so much@ after Reyes had followed the complainant with appellant; and (4) Chico=s testimony that Reyes was Aa little nervous@ when he learned that the complainant had died, and that he told him Ahe didn=t want to be involved in the police.@ With regard to Reyna=s testimony, he later admitted on cross-examination that he did not know whether appellant went with Reyes and the complainant. As for Chico=s testimony regarding Reyes= statement and demeanor following the incident, a jury could make conflicting inferences based on those facts, some implicating appellant (i.e., Reyes watched or assisted appellant), and some absolving him (i.e., Reyes, without the assistance of appellant, robbed and killed the complainant). The jury also could have inferred facts implicating Reyes based on Hernandez=s testimony. However, the jury considered that evidence along with all of the other evidence presented at trial, including the evidence regarding appellant=s actions on the day of and the days following the incident. We find that the evidence implicating Reyes as the sole perpetrator does not greatly outweigh the evidence supporting the jury=s determinationCthat appellant participated in the robbery and murder of the complainant. Appellant further argues that even if most of the State=s evidence is considered to be true, it is consistent with his assertion that he fought the complainant and that someone later robbed and killed the complainant. For instance, his statement to his wife Ato shut up or else he [was going] to do her like he done him,@ could be construed as a threat to beat her, as he had beaten the complainant. Appellant contends that Chico=s testimony that appellant and Reyes walked off with the complainant[2] and Alexander Reyna=s testimony that Reyes forcibly led the complainant away are not inconsistent with his contentions, in that appellant, Reyes, and the complainant could have left together at one point Aon a beer run,@ and Reyes could have led the complainant away at a later point in time. Appellant also posits that his admission that he hid his boots and then fled to Mexico after learning of the complainant=s death is consistent with his argument in that he was simply afraid he would be wrongfully blamed for the complainant=s death, considering his fight with the complainant on the same day as his death. Finally, appellant notes that Dr. Chauvin testified that the less severe injuries to the complainant, such as those on the front part of his head and face, could have been caused at a different time (i.e., a few hours before) the more severe injuries; the implication being that appellant could have fought with the complainant and caused him minor injuries, and then later, Manuel Reyes (or someone else) could have caused the fatal injuries in the course of robbing the complainant. In sum, appellant offers many plausible inferences from the evidence, all leading to the suggestion that he only fought the complainant. Also plausible is the jury=s apparent inference from the evidence that appellant did not, in fact, simply Afight@ the complainant; rather, he intentionally killed and robbed the complainant. Our role is not to substitute our judgment for the fact-finder and determine which inference is more plausible. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (AAlthough our analysis considers all evidence presented at trial, we may not re‑weigh the evidence and substitute our judgment for that of the jury.@). Instead, our duty is to determine whether the evidence supporting the conviction (and inferences therefrom) is so weak that the fact‑finder=s determination is clearly wrong and manifestly unjust or whether the evidence supporting the jury=s determination (and inferences therefrom) is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414‑15, 417; Johnson v. State, 23 S.W.3d at 11. We find that the evidence supporting appellant=s conviction is not so weak that the jury=s determination was clearly wrong or manifestly unjust, especially considering appellant=s admission of fighting the complainant the day of the crime in the area where the complainant=s body was found. And we find, after reviewing all of the evidence presented and considering all inferences flowing from that evidence, that the evidence supporting the conviction is not against the great weight and preponderance of the evidence. Consequently, we find the evidence to be legally and factually sufficient to support appellant=s conviction for capital murder. We overrule points of error one and two. B. Exclusion of the Evidence In his final point of error, appellant argues that the trial court erred by refusing to admit a police report into evidence. The trial court=s decision to exclude testimony is reviewed for abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). The abuse of discretion standard requires an appellate court to uphold a trial court=s admissibility decision when that decision is within the zone of reasonable disagreement. Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002). During cross-examination of Detective Selvera, appellant attempted to offer a police report prepared by the detective containing statements made by Chico regarding the conduct of, and statements made by, his half-brother, Reyes, around the time of the incident. The State objected on hearsay grounds, and the trial court sustained the objection. Appellant attempted to have the evidence admitted under the Rule 803(8)(c) exception to hearsay, but the trial court refused the request. Rule 803(8)(c) of the Texas Rules of Evidence provides that in criminal cases as against the state, Afactual findings resulting from an investigation made pursuant to authority granted by law@ are excepted from the hearsay rule Aunless the sources of information or other circumstances indicate lack of trustworthiness.@ Tex. R. Evid. 803(8)(c). First, the portions of the report appellant attempted to offer were not Afactual findings.@ Chico=s statements were neither factual findings resulting from an investigation or opinions nor conclusions based on such findings. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988) (finding, under Federal Rule of Evidence 803(8)(c), which the Texas rule derives from, that opinions and conclusions based on a factual investigation by public officials can be admissible). Instead, they were simply transcribed statements made by a prospective informant. As such, that information was outside the scope of the Rule 803(8)(c) hearsay exception. See Beech Aircraft, 488 U.S. at 170; McRae v. Echols, 8 S.W.3d 797, 800 (Tex. App.CWaco 2000, pet. denied) (finding in accordance with Beech Aircraft that the officer=s opinions and conclusions based on his factual investigations were admissible under 803(8)(c)); Pilgrim=s Pride Corp. v. Smoak, 134 S .W.3d 880, 892 n.2 (Tex. App.CTexarkana 2004, pet. denied) (discussing the type of evidence admissible under Rule 803(8)(c)). Even if the police report itself were admissible, any statements contained in that report would be subject to the hearsay rule and would have to qualify under an exception to be admissible. See Crane v. State, 786 S.W.2d 338, 354 (Tex. Crim. App. 1990) (holding that even if the tape itself were admissible under a hearsay exception, any statements made in that recording were subject to the hearsay rule); Trussell v. State, 585 S.W.2d 736, 739 (Tex. Crim. App. 1979) (finding that if the report were offered for its truth, and not just for impeachment purposes, then the statements contained in that report were hearsay and inadmissible). In this case, Chico=s statements to Officer Selvera would be hearsay within the hearsay police report itself, and Chico=s discussion of statements made by Reyes would be hearsay within Chico=s hearsay statements within the hearsay report. It does not appear that any of the statements were offered for impeachment purposes, and appellant did not attempt to show that each level of hearsay qualified under any hearsay exception. Therefore, these statements within the report were not shown to be exempt from the hearsay rule. Consequently, the trial court did not abuse its discretion in disallowing the report and the statements contained therein. We overrule appellant=s third point of error. We affirm the judgment of the trial court. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed July 26, 2007. Panel consists of Chief Justice Hedges and Justices Hudson and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The jury was charged on the law of the parties and instructed that they were to find appellant guilty of capital murder if they found that Reyes committed capital murder and that appellant, with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid Reyes to commit the offense. See Tex. Penal Code 7.02(a)(2). Therefore, if the jury were to have accepted appellant=s theory that Manuel Reyes killed and robbed the complainant, the jury had to find that Reyes committed the crime alone without sufficient participation (as defined by Section 7.02(a)) from appellant, otherwise appellant would still be guilty of capital murder. [2] Chico actually testified that appellant and Reyes walked behind the complainant as he walked away.