Ramirez, Thomas, Jr., PD-1155-15

Defendant Thomas Ramirez Jr. was tried by jury and convicted of felony murder under Tex. Penal Code § 19.02(b)(3) for allegedly discharging a firearm at or toward a habitation/building while a felon in possession of a firearm; sentence: life imprisonment.
Prosecution evidence: multiple eyewitnesses placed a red Suburban firing shots in the neighborhood around 1:00 p.m.; appellant’s girlfriend testified he fired from the vehicle; .40-caliber shell casings were recovered at scenes near the victim’s apartment; appellant tested positive for gunshot residue; a Bud Light can with appellant’s fingerprint linked him to the vehicle.
Victim Ivan Valenzuela was found dead inside a second-floor apartment from a distant-range .40-caliber gunshot wound; medical examiner testified the bullet traveled slightly downward from left to right.
Defense points: no firearm was recovered; shell casings included a single .25 caliber among several .40 casings suggesting other shooters; trajectory arguably inconsistent with shooting from street level into a second-floor apartment; correlative ballistics linking appellant’s gun to the fatal bullet were absent.
At charge conference appellant requested a jury instruction on the lesser-included offense of deadly conduct (Tex. Penal Code § 22.05(b)(2)); the trial court denied the request (off-the-record discussion); appellant appealed that denial among other claims.

Issue	Appellant's Argument	State's Argument	Held
Sufficiency of evidence	Evidence insufficient to prove appellant fired the fatal shot or caused victim’s death; no recovered gun or ballistics tie	Eyewitnesses, shell casings, GSR, fingerprint on beer can, timing and locations support conviction	Conviction affirmed; evidence legally sufficient when viewed in light most favorable to verdict (Jackson standard)
Exclusion of email (investigation leads)	Email from third party suggesting other suspects was admissible to show investigative deficiency (non-hearsay use)	Email was hearsay and/or low probative value; exclusion harmless because cross-examination presented the point	Any error in exclusion was harmless; conviction affirmed
Denial of lesser-included instruction (deadly conduct)	Trial court erred: deadly conduct is a cognate lesser-included offense and there was some evidence a different shooter caused death; jury could rationally convict only of deadly conduct	If jury found deadly conduct occurred, no rational basis to acquit of felony murder because evidence tied appellant’s shooting to the fatal shot	Trial court did not err; no charge on deadly conduct required; COA affirmed
Admission of prior convictions at punishment	Prior-conviction records lacked fingerprint proof linking appellant; admission risked wrong identity	County ID numbers and sheriff’s witness linked the records to appellant; weight for jury to assess	Admission proper; trial court did not err (weight, not admissibility)

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (two-part cognate-pleadings test for lesser-included-offense instructions)
Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008) (deadly conduct recognized as a lesser-included offense in some murder theories)
Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998) (evaluation of evidence for lesser-included-offense instruction)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal-sufficiency standard: evidence must be such that any rational trier of fact could find guilt beyond a reasonable doubt)
Daniels v. State, 313 S.W.3d 429 (Tex. App.—Waco 2010) (discussing deadly conduct as lesser-included for felony murder)
Miles v. State, 259 S.W.3d 240 (Tex. App.—Texarkana 2008) (same)