Michael David Ramirez v. State
13-14-00301-CR
| Tex. App. | Feb 23, 2015Background
- Ramirez convicted by jury of robbery in Cameron County; judge imposed a six-year sentence and later revoked prior probations; appellant sought appellate review in the Thirteenth Court of Appeals (Cause Nos. 13-14-00301-CR, 13-14-00171-CR, 13-14-00172-CR) on direct appeal from the district court case 09-CR-2098-I and related matters.
- Appellant argues egregious harm from jury instructions requiring unanimity and the trial court’s failure to properly instruct on lesser-included offenses.
- Appellant contends theft should not have been submitted as a lesser-included offense of robbery over defense objections.
- Appellant asserts error from the trial court’s failure to instruct what to do if the jury could convict of either robbery or theft but not determine which, and then convict of theft.
- Appellant challenges prosecutorial conduct, including a “golden rule” closing argument and urging jurors to place themselves in the victim’s shoes, allegedly depriving him of due process.
- Appellant seeks acquittal or, in the alternative, a remand for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity instruction error | Ramirez | Ramirez | Fundamental error; must be unanimous verdict; instruction was incomplete. |
| Theft submitted as lesser offense | Ramirez | Ramirez | Not harmless beyond doubt; submitting theft alongside robbery violated law and defense objection. |
| Failure to instruct for uncertain conviction | Ramirez | Ramirez | Fundamental error; jury not told how to proceed if guilty of either offense but uncertain which. |
| Prosecutorial closing argument | Ramirez | Ramirez | Improper “golden rule”/community-appeal argument; reversal warranted. |
| Oral vs written jury note response | Ramirez | Ramirez | Fundamental error; written response required by statute; oral instruction improper. |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App. En Banc 2005) (unanimous-verdict requirement; fundamental error for incomplete guidance)
- Francis v. State, 36 S.W.3d 121 (Tex.Crim.App. 2000) (unanimity requirement; error not harmless by itself)
- Cosio v. State, 353 S.W.3d 766 (Tex.Crim.App. 2011) (unanimity and instructional defect standards cited)
- Sanders v. State, 664 S.W.2d 705 (Tex.Crim.App. 1982) (lesser-included offense submission over objection; harm standard discussed)
- Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App. 2000) (necessity of lesser-included offense instruction when evidence supports)