Michael David Ramirez AKA Michael Ramirez AKA David Michael Ramirez v. State, 13-14-00171-CR

Background

Appellant Michael David Ramirez was convicted of robbery; trial included both robbery (greater) and theft (lesser-included) options in the jury charge.
Jury charge contained a deliberation instruction urging jurors to consult one another and reach agreement if possible, plus a standard admonishment not to surrender honest convictions.
The State requested inclusion of the lesser-included offense of theft; the trial court submitted it to the jury.
During deliberations the jury requested copies of the police report and victim affidavit; the court orally told the jury they could only review exhibits admitted into evidence.
Appellant raised seven appellate issues challenging (1) the deliberation instruction as coercive, (2) submission of theft as a lesser-included offense, (3) omission of a "benefit of the doubt" instruction, (4) prosecutor's "community expectations" argument (briefed poorly), (5) prosecutor asking jurors to put themselves in victim’s place (no objection at trial), (6) allegedly improper out-of-record closing argument, and (7) noncompliance with Tex. Code Crim. Proc. art. 36.27 when answering the jury.

Issues

Issue	Appellant's Argument	State's Argument	Held
1. Jury deliberation instruction coercive	Charge language urging jurors to deliberate and reach agreement overemphasizes verdict and may coerce verdicts	Language is similar to approved instructions; accompanied by admonition protecting individual judgment, so not coercive	Instruction not erroneous; issue overruled
2. Submission of lesser-included theft	No evidence to support jury finding guilt only of theft (challenges second-prong Rousseau test)	Under Grey, State need only show lesser offense is included in proof of charged offense; theft is a lesser-included offense of robbery	Submission proper; issue overruled
3. Omission of "benefit of the doubt" instruction	Jury needed instruction when both greater and lesser grades charged to resolve doubt about grade	Appellant did not request or object; charge as a whole told jury to consider lesser if not convinced of robbery, eliminating uncertainty	No egregious harm; omission not reversible error
4. Prosecutor's "community expectations" argument	(Briefed inadequately; no supporting argument)	Issue inadequately briefed under Rule 38.1(i)	Waived/inadequately briefed; overruled
5. Asking jurors to put themselves in victim's place	Argument asked jurors to imagine victim's perspective (improper appeal to passion)	No contemporaneous objection at trial, so not preserved for appeal	Not preserved; overruled
6. Closing argument outside the record	Prosecutor urged jurors to imagine dangerous alternative outcomes—outside evidence and inflammatory	Prosecutor's remarks were a reasonable summation/inference from evidence; objection overruled at trial	Argument held proper as summation; issue overruled
7. Court's oral response to jury (art. 36.27 compliance)	Court violated article 36.27 by answering jury orally and not in writing	Court’s reply simply told jury they may only review admitted exhibits and did not add law or facts; case law holds such communications are not reversible error	No reversible error under controlling precedents; issue overruled

Key Cases Cited

Lowenfield v. Phelps, 484 U.S. 231 (U.S. 1988) (approving deliberation-instruction language in deadlock contexts)
Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009) (State need not satisfy Rousseau second prong to obtain lesser-included instruction)
Garza v. State, 974 S.W.2d 251 (Tex. App.--San Antonio 1998) (upholding similar jury deliberation instruction)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (standard for reviewing unobjected-to jury-charge error)
Arrevalo v. State, 489 S.W.2d 569 (Tex. Crim. App. 1973) (noncompliant judge–jury communications not reversible absent additional instruction)
Nacol v. State, 590 S.W.2d 481 (Tex. Crim. App. 1979) (judge’s brief responses to jury that do not add law/facts are not reversible error)