Michael David Ramirez AKA Michael Ramirez AKA David Michael Ramirez v. State
13-14-00172-CR
| Tex. App. | Feb 23, 2015Background
- Michael Ramirez appeals a robbery conviction from Cameron County, raising multiple trial issues on direct appeal.
- The jury found Ramirez guilty of robbery; punishment was a six-year term, with prior probations revoked in related matters.
- Appellant challenged jury instructions, including the instruction that jurors must unanimously agree, and the inclusion of theft as a lesser-included offense.
- Appellant alleged prosecutorial misconduct, including a Golden Rule argument and an appeal to the jury to place themselves in the victim's shoes.
- The defense objected to returning the jury to the courtroom for an oral response to a note; the trial court gave a written vs. oral response dispute.
- Appellant request relief: acquittal or remand for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Egregious harm from jury instruction on unanimity | UNANIMITY instruction was fundamental error. | Instruction insufficient; jurors must deliberate unanimously; error not cured. | Remand for further proceedings; court may acquit or order new trial. |
| Submitting theft as a lesser-included offense over objection | Theft should not have been charged as lesser when not supported by evidence. | Error permissible; mixture of offenses confused the jury. | Remand for new trial; error not harmless beyond a reasonable doubt. |
| Failure to instruct what to do if guilty of either robbery or theft but uncertain which | Fundamental error to omit guidance on dual-possible verdicts. | Trial court properly instructed on robbery and theft options. | Remand; error not harmless beyond a reasonable doubt. |
| Prosecutor's closing argument: 'send a message' to community | Closing invoked community expectations and biased the jury. | Argument within permissible zeal; not reversible error. | Remand for new trial; reversible error. |
| Golden Rule/placing jurors in victim's shoes | Inflamed passions and deprived right to fair trial. | Not error or harmless; outweighed by record. | Remand; reversible error due to improper argument. |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. En Banc 2005) (unanimity instruction fundamental error)
- Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) (unanimous verdict required)
- Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999) (benefit-of-the-doubt instruction for lesser offense)
- Rushing v. State, 50 S.W.3d 715 (Tex. App.—Waco 2001) (evidence sufficient for lesser included offenses; jury instructed accordingly)
- Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (evidence must support lesser-included offense instruction)
- Sanders v. State, 664 S.W.2d 705 (Tex. Crim. App. 1982) (offense must be submitted as lesser included if requested by the accused)
- Thomas v. State, 578 S.W.2d 691 (Tex. Crim. App. 1979) (instruction to disregard ineffective when inflammatory)
- In re Winship, 397 U.S. 358 (U.S. 1970) (proof beyond a reasonable doubt right; fundamental to verdicts)
- Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007) (courts may rely on decisions of other jurisdictions)
- People v. Davis, not provided in document (not provided) (California authority cited on Golden Rule arguments)