### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00823- CR

Loui s Anthony Ramos, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. CR-15 -06 03, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant L ouis Anthony Ramos g uilty of one count of murder, see Tex. Penal Code § 19.02(b), and t wo co u n t s of ag g rava ted assault with a deadly wea pon, see id. § 22.02(a) (2). The jury assessed punishment at 35 y ear s’ imprisonment for the murd er co u n t , 15 y ear s’ i mprisonment for the first ag g rava ted-a ssault count, and 10 y ear s’ i m p risonment for the second ag g rava ted-a ss au l t co unt, and the trial court order ed all the sentenc es to run concur rently

. I n one issue challeng in g h i s m u rder conviction, Ramos contends that the State failed to meet its burden to prove bey ond a rea sonable doubt that he did not act in self-de fense

. We will modify the 1

Ramos also appea led his convictions for the two counts of ag g rava ted assault. Howeve r, 1 Ramos’s court-a

ppointed attorney has filed a motion to withdraw with r espec t to those two counts supported by a brief concluding that the appea l of the ag g rava ted-a ssault judgme nts is frivolous and without merit. The brief meets the require ments of Anders v. Calif ornia by prese nting a profe ssional evalua tion of the re co rd d emons trating why there are no arg uable g rounds to be advanc ed. See Anders v. Calif

ornia , 386 U.S. 738, 744 ( 1967); G a r n e r v
. S ta te , 3 0 0 S. W. 3 d 7 6 3 , 7 6 6 ( T e x. Cr im

. A p p . 2 0 0 9 ) ; s e e a ls o P e n s o n v
. O h io , 4 8 8 U

. S. 7 5 , 86–87 (1988).trial court’s judgme nt of conviction for murder to corr ect a cler ical err or, aff irm the murder judgme nt as modified, and a ffirm the tria l court’s re maining judg ments of conviction.

BACK GR OUND 2
Ramos sho t and killed J ohnny Sax on. When J ohnny ’s daug hter H.S. and mother 3 Anita attempted to call 911, Ramos pointed a g un at them and instructed them not to call for help. 4
Ramos then fled but later turned himself in to police. Ramos was convicted of one count of murder for J ohnny ’s death and two counts of ag g rava ted assault with a deadly wea pon for threa tening H.S. and Anita with a g u n . T h e j u ry assessed Ramos’s punishment, the trial court rende red judgme nt consistent with the jury ’s ver dicts, and this appea l followed.

Ramos’s counsel has repr esente d to the Court that he has provided copies of the motion and the brief to Ramos; advised Ramos of his rig ht to examine the appellate rec ord and file a pro se brief; and provided Ramos with a form motion for pro se acc ess to t h e ap p ell ate rec ord along with the mailing addre ss of this Court. See Kelly v. State , 436 S.W .3d 313, 319–21 (Tex. Crim. App. 2014); s e e a ls o A n d

e r s , 3 8 6 U

. S. a

t 7 4 4 ; G a r n e r , 3 0 0 S. W. 3 d a

t 7 6 6

. We r e c e iv e d a p r o s e b r ie f f r o m Ra mo s . We have conducte d an independe nt revie w of the rec ord, including appellate counsel’s brief and Ramos’s pro se brief, and find no reve rsible err or with respe ct to the ag g rava ted-a ssault counts. See Anders , 386 U.S. at 744; Garner , 300 S.W .3d at 766; Bledsoe v. State , 178 S.W .3d 824, 826–27 (Tex. Crim. App. 2005). We ag ree with counsel that the rec ord prese nts no arg uably meritorious g rounds for r eview a

nd the appe al of the a g g rava ted-a ssault counts is frivolous. Counsel’s motion to withdraw with respe ct to the two ag g rava ted-a ssault counts is g rante d. The judg ments of conviction for ag g rava ted assault with a de adly wea pon are aff

irmed. The fac ts rec ited in this opinion are taken from the testimony and other evidenc e prese nted 2 at trial. We refe r to J ohnny ’s daug hter by her initials beca

use she is a minor. 3 Be cause J ohnny and Anita share the same last name, we ref er to them by their first names. 4 2DISCUSSIO N The trial court submitt ed a self-de fense instruction to the jury

. I n his sole issue, Ramos contends that the evidenc e is insufficient to support the jury ’s deter mination that he was not acting in self-de fense when he shot and killed J ohnny

.

I n evalua ting the sufficie ncy of the evidenc e supporting a jury ’s verdic t, we view the evidenc e in the light most favor able to the verdic t and ask whether “‘a ny rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.’” Montgomery v. State , 369 S.W .3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v. State , 323 S.W .3d 893, 902 n.19 (Tex. Crim. App. 2010)). We are instructed only to “ensur e that the evidenc e prese nted supports the jury ’s verdict and that the state has pre sented a leg ally sufficie nt case of the off

ense c harg ed.” Id. “The jury is the s ole j udg e of credibility and we ight to be a

ttached to the testimony of wit nesses,” and if “the rec ord supports conflicting infere nces, we presume that the jury resol v ed the conflicts in favor of

the ver dict, and we defe r to that deter mination.” Dobbs v. Stat e , 434 S.W .3d 166, 170 (Tex. Crim. App. 2014).

A person is justified in using forc e ag ainst another when and to the d egr ee h e

rea sonably believes is immediately nece ssary to protec t himself ag ainst the other’s use or attempted

use of unlawful forc e. Tex. Penal Code § 9.31(a)

. “[T] he issue of self-de fense is an issue of fac t to be deter mined by the jury .” Saxton v. State , 804 S.W .2d 910, 913 (Tex. Crim. App. 1991). When

a defe ndant raises the issue of self-de fense , “the State has the burden of persuasion in disproving the evidenc e of s el f- d efense,” but it is not require d to “af firmatively produce evidenc e ref uting the self-de fense claim, but rathe r . . . to prove its case bey ond a rea sonable doubt.” Id. I n evalua ting the

3sufficie ncy of the evidenc e supporting a jury ’s reje ction o f a cl ai m of self-de fense , we ask not 5 whether the evidenc e ref

uted the self-de fense tes t i m ony but whether , viewing the evidenc e in the light most favor ab l e to the prosec ution, a rational juror could have found ag ainst the claim of

s e lf

- d e f e n s e b e y o n d a r e a s o n a

b le d o u b t. I d

. a t 9 1 4

. E v id e n c e s u

p p o r ti n g a c la im o f s e lf

- d e f e n s e “ w il l
not rende r t he S tate’s evidence insufficient since the credibility deter mination of such evidenc e is solely within the jury ’s province and the jury is fre e to acc ept or reje ct the defe nsive evidenc e.” Id.

Her e, the State prese nted evidenc e that Ramos and his w ife g ot into an arg ument at

a community pool ear lier on the da y of the shooting . Ramos hit his wife in the head and then left. J ohnny picked up Ramos’s wife and sever al children and drove them to Anita’s re sidence , wher e J ohnny and his children lived. Ramos later c ame to the Saxon residence claiming that he had been shot in the leg

. J ohnny ’s friend Rick Clark g ot into an arg ument with Ramos, struck Ramos with a rod, and jabbed the rod into Ramos’s alleg ed g unshot wound. Ramos and Clark foug ht, and Clark knocked Ramos 6
onto the g round. Clark and J ohnny told Ramos to leave

. Ramos left. At some point, J ohnny went into the Sax on residenc e and came out with a shotgun that was missing piece s and was inopera tive. Wi tn e s s e s a

t tr ia l d is a g

r e e d o n w h e th e r Jo h nny g o t th e in o p e r a ti v e s h o tg u n b e f o r e o r a f te r Ra mo s le f t. A short time later, Ramos returne d with a g un and asked wher e Clark was. Whil e looking for Clark, Ramos turned a corne r and saw J ohnny holding the inopera tive shotgun. Ramos

A jury implicitl y reje cts a claim of self defe nse when it returns a g uilty verdic t. Saxton v. 5 State , 804 S.W .2d 910, 914 (Tex. Crim. App. 1991). When R am o s l at er turned himself in to police, he did in fac t have a g unshot wound in 6 his leg

. 4s h o t Jo h n

n y in th e c h e s t, p e r f

o r a ti n g h is a o r

ta a n d k il li n g h im a lm o s t in s ta n tl y . A f te r s h o o ti n g Jo h nny , Ramos appea

red to be in a state of shock. When H.S. called 911, Ramos pointed his g un at her and told her to hang up. She did, and R amos then t old her to call 911 back and t ell them that her first call was an acc ident. H.S. complied. Ramos also pointed his g un at Anita and told her that he would kill her if she called 911. Ramos beg an cry ing, said that he was sorry , and hug g ed H.S. Then he left.
Fr om this evide nce, a rea sonable fac t-finder could have found bey ond a re asonable doubt that the State had proved eac h element of the offe nse of murder. That is, the jury could have found that Ramos intentionally or knowing ly killed J ohnny or that Ramos intended to cause serious bodily injury , committed an act clea rly dang erous to human life, and cause d J ohnny ’s death. Moreove r, the jury could have found bey ond a rea sonable doubt that Ramos was not acting in selfdefe nse. Although Ramos saw J ohnny holding an inopera tive g un, there was no evidenc e prese nted
at trial that J ohnny pointed the g un at Ramos or threa tened Ramos in any way afte r Ramos returne d
to the proper

ty

. Acc ording ly , there was no evidenc e that Ramos rea sonably believed that forc e was “immediately nece ssary

” to pr otect himself. See Tex. Pena l Code § 9.31(a)

. Fur thermore , J ohnny

was at his mother’s home wher e he and his family also lived and was only holding the g un beca use of Ramos’s ear lier alterc ation with Clark and h i s initial ref usal to leave the proper

ty

. There fore , when Ramos returne d to the proper ty arme d and without permission, J ohnny would h av e b een justified in threa t en i n g Ramos with lethal forc e if he did not leave

. See id. ; see also id. §§ 9.33 (De fense of Third Person), 9.41(a) (Protection of One’ s Own Property ). Be cause J ohnny had a rig ht
to protec t himself and his family , the jury could have rea sonabl y co n cl u d ed that Ramos was not entitled to use forc e ag ainst J ohnny

. See id. § 9.31(a) (explaining that self-de fense may be justified

5to protect a g ainst “unlawf ul force ”); see also id. § 9.31(b)( 4) (“ The use of forc e ag ainst another

is not justi fied . . . if the a ctor provoke d the other’ s use or a ttempted use of unlaw ful forc e . . . .”)

.

Be cause we have co n cl uded that the S tate presented sufficient evidence to support the jury ’s ver dict, we ove rrule Ra mos’s sole issue.

Ho wever, our own revie w of the rec ord has reve aled a non-re versible cler i ca l

err or in the judgme nt of conviction for m u rd er . T he judgme nt lists the statute for the offe nse as “19.02(b) (1) Penal Code.” The rec ord indicates, howeve r, that the trial court submitt ed instructions
to the jury reg arding both section 19.02(b)( 1) and section 19.02(b)( 2), and the jury ’s verdic t does not indic at e u nder which subsection i t found R amos g uilty

. Acc ording ly , we modify the j udg ment in Count I to list the statute for the offe nse as “ 19.02(b) Pena l Code.”

CONCLUSION W e af fi rm the judgme nt of conviction for Count I as modified and aff irm t h e judgme nts of conviction for Count I I and Count I I I

.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Count I : Modified and, as Modifie d, Affir med Count I I : Affirme d Count I I I : Affirme d Filed: Mar ch 1, 2017 Do Not Publish
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