Roman Ramirez-Memije v. State
2015 Tex. App. LEXIS 5057
Tex. App.2015Background
- Appellant Roman Ramirez-Memije was convicted by a jury of fraudulent possession of 10–49 items of identifying information for his role as a middleman in a credit‑card skimming operation; he admitted possessing the skimmer but denied knowing it contained identifying information.
- The central contested issue at trial was appellant’s mens rea: whether he had the intent to harm or defraud (i.e., whether he knew the device contained identifying information).
- The jury charge tracked the statute but included a statutory presumption stating the defendant "is presumed to have the intent to harm or defraud another if the defendant possesses the identifying information of three or more other persons."
- The charge omitted the Penal Code §2.05(a)(2) instructions that convert a mandatory presumption into a constitutionally acceptable permissive presumption (proof beyond a reasonable doubt of predicate facts; jury may but is not bound to infer; burden on other elements remains; presumption fails if predicate fact is in doubt).
- The State repeatedly emphasized the presumption to the jury during voir dire and closing, at times characterizing the intent as "automatic" once three or more persons’ information was proved; the jury was never told it was not bound by the presumption.
- The Court of Appeals held the omission caused egregious harm because the presumption targeted the sole contested issue (intent) and deprived appellant of the right to have mens rea proved beyond a reasonable doubt; the conviction was reversed and the case remanded for new trial.
Issues
| Issue | State's Argument | Ramirez‑Memije's Argument | Held |
|---|---|---|---|
| Whether the jury charge’s statutory presumption (possession of identifying information of ≥3 persons → presume intent to harm/defraud) was constitutionally permissible without §2.05(a)(2) instructions | The statute and jury charge properly allow the presumption; the presumption supports proving intent circumstantially | The presumption as given was mandatory and unconstitutional because it relieved the State of proving mens rea beyond a reasonable doubt; §2.05(a)(2) instructions were required | Omitted §2.05(a)(2) instructions made the presumption effectively mandatory; omission caused egregious harm because intent was the sole contested issue—reversed and remanded for new trial |
| Whether general reasonable‑doubt language in the charge cured the omission of §2.05 instructions | General burden language is sufficient to protect the defendant’s rights | General language does not inform jurors that predicate facts must be proved beyond a reasonable doubt before using the presumption, nor that they are not bound to infer intent | General instructions did not cure error; egregious harm found |
| Whether appellant’s requested voluntary‑conduct (Tex. Penal Code §6.01) instruction should have been given | N/A at this stage (previously addressed by appellate courts) | Appellant argued he did not knowingly obtain identifying information and §6.01 instruction was warranted | The Court of Criminal Appeals previously held possession of the skimmer was a voluntary act; this court did not revisit that issue on remand and addressed only the presumption issue here |
Key Cases Cited
- Garrett v. State, 220 S.W.3d 926 (Tex. Crim. App. 2007) (mandatory presumptions violate due process; need for permissive presumption instructions)
- Bellamy v. State, 742 S.W.2d 677 (Tex. Crim. App. 1987) (mandatory presumption doctrine; harm analysis)
- Hollander v. State, 414 S.W.3d 746 (Tex. Crim. App. 2013) (discusses need for §2.05(a)(2) instructions; likelihood of egregious harm when omitted)
- Ramirez‑Memije v. State, 444 S.W.3d 624 (Tex. Crim. App. 2014) (Court of Criminal Appeals: possession of the skimmer was voluntary; remanded for consideration of remaining issues)
- Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011) (framework for egregious‑harm review of jury‑charge error)