Roman Ramirez-Memije v. State
397 S.W.3d 293
Tex. App.2013Background
- Appellant Roman Ramirez-Memije was convicted of fraudulent possession of identifying information, a second-degree felony.
- He acted as a middleman in a credit card skimming operation involving a skimmer device, Cercen, Salazar, and others.
- Secret Service conducted a sting; Cercen gave the skimmer to Ramirez-Memije, who was arrested after handing it to Salazar.
- The jury charge defined the offense and included a presumption under § 32.51(b-1) but omitted § 2.05 presumptions and § 6.01 voluntary-conduct instruction.
- Ramirez-Memije argued the evidence raised a voluntary-conduct issue under § 6.01(b), distinct from intent to harm or defraud.
- The trial court denied the § 6.01 instruction; the verdict was three years’ confinement; on appeal, the court sustained the first issue and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not giving a § 6.01 voluntary-conduct instruction | Ramirez-Memije contends the evidence raised voluntary possession concerns | State argues no such instruction was required absent involuntary bodily movement | Issue sustained; instruction required and remand for new proceedings |
| Whether the jury charge improperly omitted § 2.05 presumptions instructions | Ramirez-Memije argues the charge failed to include § 2.05(a)(2) presumptions | State maintains presumptions were proper or harmless | Declined to address this issue due to harm from the omitted § 6.01 instruction; remand partial |
| Whether testimony that Ramirez-Memije was from Mexico and working illegally was admissible | Ramirez-Memije argues admission was improper and inflammatory | State contends it was admissible or harmless and outweighed by other evidence | Not addressed on appeal due to sustaining] harm from first issue |
Key Cases Cited
- Brown v. State, 955 S.W.2d 276 (Tex. Crim. App. 1997) (voluntariness of conduct separate from mental state; possession offenses context)
- Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993) (voluntary act vs. culpable mental state; possession offenses)
- Gorman v. State, 634 S.W.2d 681 (Tex. Crim. App. 1982) (possession offenses and the act/omission distinction)
- Ramos v. State, 478 S.W.2d 102 (Tex. Crim. App. 1972) (knowledge of contraband required in possession cases)
- Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) (possession requires knowledge contraband; longevity of possession context)