## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00194

- CR

_________

__________________

On Appeal from Criminal District Court No. 3

Tarrant County, Texas Trial Court No. 1704962R Before Birdwell, Bassel, and Walker, JJ. M emorandum Opinion by Justice Walker 

### J AMIE 

### F UENTEZ 

### R

AMIREZ 

### , Appellant
V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION App ellant Jamie Fuentez Rami rez w as convicted of s ix counts of aggravated assault on a public servant (while using a deadly weapon), one count of un lawful possession of a firearm, and one count of evading arrest. Ramirez received
concurrent sentences of twenty years in priso n for the aggravated

- assault counts, eight years for the unlawful

- firearm

- possession count , and two years for the evading arrest
count . Ramirez now appeals, claiming that (1) the punishment charge improperly instru ct e d the jury that he was el i gible to receive good

- co nduct time credit in prison and (2) the evidence is insufficient to support h is co nviction for agg ravated assault in
count seven. We af

firm. I. BACKGROUND North Richla nd Hills police officer A aron Dixson re ceived a call to assist Wataug a police with a w elfare check on a man who was “ possibly suicidal, possibly intox icated, [ and

] possibly armed with a firearm. ” Offic er Dixson s p otted a man and a car matching the call ’ s description at a Racetrac gas station
. Officer Di xson identified the man as Ramirez. Officer Dixson approached Ramirez as he was standing outside his pickup truck , uneasy on his feet. Ramirez was d r inking out of a large beer bottle

. Because Race trac is a “ licensed premises, ” Offi ce r Dixson felt justified in detaining Ramirez3

for unlawful ly consuming alcohol. 1 And b ecause there had been reports that Ramirez might be armed, Officer Dixson pulled out his firearm and ordered R am ir ez to display his hands. Ramirez re sponded by quickly retreating into his truck. Ramirez clo sed the door and started rummaging in the ce nter console. Two other North Richland Hills police officers arriv ed to pr ovide backu p for Officer Dixson. Ramirez sudden ly drove off

. A chase ensu ed, and eventually six police cars were following Ramirez

. Police used a tire

- def

lation device , which damag ed the tires and slowed Ramir ez ’ s tru ck. Ramirez continued driving on flat tires until he reached his aunt ’ s house
. After he stopped, and while still in the truck, Ram irez held up and displayed a handgun to the officers who had gathered. Among the officers at Rami rez ’ s aunt ’ s home were Officer Dixson, Officer Robert Rife, Officer Chr is Lizak (and his police dog) , Officer Joseph Campbell, Officer Mat thew Boyd, Watauga Sergeant Marshall McGee, and Lieutenant J ohn Richerson. Also present was Officer Alex He tl er, who addressed Ramirez th ro ugh a PA system and told him to get out of the tr uck so that they could “ pu t a peaceful resolve to all this. ” Ramirez was on the telephone with his aunt at the time ; he told

1 A person commits an offense if he consumes beer on the premises of a retail dealer licensed for off

- premise consumption of alc ohol. Tex . A lco. Bev. Code Ann. § 101.72(a)
.4

her, and she relayed to police, t hat “ he was going to start shooti ng if [they] didn ’ t stop ye l ling at him. ” Ramirez got out of his t ruck and walked toward the house, but h is angle of travel took him toward the officers who were behind cars parked on the street. The police ordered him t o drop his gun, but he continued walking to a po int wher e the officers ’ “ co ver was almost compro mised. ” Three times, Officer Dixson fi red a

“ bean

- bag ” shotgun at Ramirez, with two round s hitting Ramirez along his beltline. Rami re z then raised and began firing his weapon. Video from Officer Dixson ’ s dash

camera indi cates that Rami rez fired at least three shots. Several of the offi cers returned fire, and Ramirez wa s injured. Ramirez was charged with seven counts of aggravated assault on a public

se rvant with a deadly weapon, one cou n t of unlawful possession of a fire arm, and one
count of evading arrest. The State waived one of the aggravated assault counts during trial, and a jury convicted Ramirez of the other counts. II. ERRONEOUS GOOD
- CONDUCT
- TIME INSTRUCTION In his first point , Ramirez complains th at t he trial court ’ s punishment charg e
err oneously in formed the jury of the poss ib ility that Ramirez could rec ei ve credit for

“ good

- conduct time ” while in prison. The State concedes that t his part of the charge was in error , and we agree. See Tex. Code Crim. Proc. Ann. art. 37. 07, § 4(a) (mandat ing parole

- related , punishment

- stage instruction to give ju ry , but excluding any mention of good

- conduct time); Bailey v. State , No. 02

- 22

- 00186

- CR, 2023 WL5

5 766138, at *6 (Tex. App.

— Fort Worth Sept . 7, 2023, no pet. ) (mem. op., not designated for publicat ion) (holding that it was error to include similar good

- conduct

time instruct

ion) ; Weaver v. State , No. 02

- 21

- 00081

- CR, 2 022 WL 2978730, a t *5 (Tex. App.

— Fort Worth July 28, 2022 , pet. ref’d) (mem. op., not desig n ated for publication) (same)
. Ramirez did not object to this instruction at trial. H av i ng determined that ther e was unobjected

- to error in the charge, we must conduct the appropriate ha rm anal ysis. Unpreserved charge error warrants reversa l only when t he error resulted in egregious har m. Nava v. State , 41 5 S.W. 3 d 289, 298 (Tex. Crim. App. 2013); Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Cr im. Proc. Ann. art. 36.19. The appropriate inquiry f or egregious harm is fact

- and case

- specific. Gelinas v. State , 398 S.W.3 d 703, 710 (Tex. Crim. App. 2013); Taylor v. State , 332 S.W.3d 483, 4 89 (Tex. Crim. App. 2011)

. In making an egregious

- harm det er mina tion, we must consider “the actual degree of harm

. . . in lig ht of the entire jury charge, the state of th e evidence , incl u ding the contested issues and weight of probative evidence, the argu ment of counsel [,] and any other relevant information reve al ed b y the record of the trial as a whole.” Almanza , 686 S.W.2d at 171 ; s ee generally Gelinas , 398 S.W.3d at 70 8

– 10 (app lying A lmanza

). Errors that result in egregious harm are those “that affec t the very basis of the case, deprive the defendant of a va lu abl e rig ht, vitally affect the defensive theory, or m ake a case f or conviction clearly and signific antly more p ersuasive .” Ta

y lor , 332 S.W.3d at 490 (citing Almanza , 686 S.W.2d at 172). The6

purpose of this review is to illuminate the actual, not just t he ore tical , harm to the accused. Almanza , 686 S.W.2d a t 174. Looking at the punishment charge as a whole , we not e first that the jury was instructed that no one could predict how parole laws and good

- conduct time might be applied to Ramirez and that it was not to conside r t he ex tent to which good

- conduct time and pa role may be appli ed to Ramirez
. The record d oes no t indicate th at the j ury failed to deliberate and decide the case based on the instructions contained in the charge
. See Bailey , 2023 WL 57661 38, a t * 6 ; Weaver , 2 022 WL 2978730, at * 5
. A s in Bai le y and Weaver

, the j ury here did not send any n otes regardi ng par o le , time cre dit for good conduct, or how those issues would affect Ramirez ’ s punishment. See Baile y , 2023 WL 5766138, at *6 ; Weaver , 2022 WL 29787 30 , at *5. Second, the state of th e punishment ev idence does not make it more likely th at th e good

- con duct

- ti m e instr uction harmed Ramirez
. The jury had hea rd how Ramirez

—

who was afforded several opportunities to peacefu lly end the sit uation

— got out of his truck, aimed a h andgu n at a grou p of police officers , and started firing. And though his sentences were not enhanced, the jury was presented with evidence that Ramirez had been convicted of, and served a five

- year probated senten ce for , felony driving while intoxicated before committing the charged offenses

. The j ury assessed sentences of twenty years ’ con fi nement for each of the aggravated

- assault counts, eight years ’ for the unlawful

- possession

- of

- a - firearm count, and two years ’ for the evading

- arrest count. Except for the fir earm
- possession sentence , t h es e7

punishments are not near the maximum of the offenses ’ re spective ranges. 2 Accordingly, it would no t appear that the go od

- conduct

- time in struction had an effect on the jury ’ s evaluation of the punishment ev idence. Third, neither the State nor the defense a lluded to good

- co nduct time during their ar guments at punishment. This factor w eigh s against a finding of egregi ous harm. See Weaver

, 2022 WL 297 8730, at *6. Finally, Ramirez argues that “ his recognized d iminished capacity was hotly contested ” and spec u l ates that the ju ry would have assessed a sh orter prison term had the good

- c onduct

- time instruction not appeared in the court ’ s charge. But this speculation amounts to the oretical harm ; it does not support a finding of the actual harm required for reversal. S ee A lm anza , 686 S.W.2d at 174. All of t he f

acto rs in this case weigh against a conclusion th at Ramirez suffered egregious harm. We overrule his first point
.

III. SUFFICIENCY

— COUNT SEVEN In his second point, Ramirez attacks the sufficiency o f the evidence to sustain his convic ti on in count sev en — specifically that the evidence is insufficient to show

2 The punishment r ange for aggravated ass ault is confinement for five to ninety

nin e years or life. Tex. Penal Code Ann. § 12. 32(a) (range for first

- degree felony), § 22.02(b)(2)(B) (aggravated assault wher e vi ctim is publi c servant is first

- d egree felon y) . The range for both unlawful possession of a firearm and evading arrest is two to ten years. I

d . § 12. 34(a) (range for third

- degree f elony), § 38.04(b)(2)(A) (evading arrest with vehic le is third

- degree f el ony), § 46.04 (e) (

unlawful ly possess ing fir earm is third

- degree felony).

.8

that he threatened Officer Boyd with imminent bodily injury. B ecause a rational jur or could have determined beyond a reasonable doubt that Ramirez threatened Of ficer Boyd with imminent bod ily injur y , we overrule Ramirez ’ s sufficiency point.

A. S TANDARD OF R EV IEW AND A PPLICABLE L

AW In our e videntiary

- sufficienc y revi ew, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinde r coul d have found
t he crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 3 19, 99 S. Ct. 2781, 2789 (19 79) ; Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder’ s res po nsibility t o resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimat e facts. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Queeman , 520 S.W.3d at 622. The factfinder alone judges th e evi de nce’s weig ht and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman , 520 S.W.3d at 622

. W e may not re

- evaluate the evide nce’s weight and c redibility and substitute our judgment for the factfinder’s. Queeman , 520 S.W.3d at 622. Instead, we d et ermine whether the necessary inferences are reasonable based on the evidence’s cumulative force when v iewed in the light most favorab le to the verdict

. Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015 ); see Villa v. State , 514 S.W.3d 227, 232 ( Te x. Cri m. App. 2017) (“The court conducting a sufficiency review must not engage in a ‘divide and conq uer’ strategy but must consider the cumulative f orce of all the evidence.”). We must presume that the9

factfinder resolved any conflicting inferences in f av or of the verdict, and we must defer to that resolution. Murray , 457 S.W.3d at 448

– 49. A person commits the offense of assault if he “intentionally or knowingly threatens another with imminent bodily injury.” Tex. Penal Code Ann. § 22.01(a)(2). A person c ommi ts aggravated assault if he “uses or exhibits a deadly weapon during the commission of the assault.” Id . § 22.02(a)(2). The off

ense is a first

- degree felony if it is committed “against a person the actor knows is a public servant while the public s er vant is lawfully discharging an official duty.” Id . § 22.02(b)(2)(B). B. S UFFICIENT P ROOF OF AN I MMINENT T HREAT Ramirez complain s t hat the State f ailed to prove that h e “ did then and there intentionally or knowingly threaten imminent bodil y i nju ry to M. Boyd , a public
servant. ” Ramirez notes Officer Boyd ’ s absence from trial and argues that, therefore, there is no evidence Ramirez threatened him personally
. Contrary to Ramirez ’ s implication, however, the Court of Crimina l A pp eals has not “ defin e[d] assault by threat as requiring a [particular ] victim ’ s perception of the threat. ” Olivas v. Sta te , 203 S.W.3d 341, 348 (Tex. Crim. App. 2006). The important question is “ whether the assailant acted in such a manner as would under t he circums ta nces p ortend an imm ediate threat of danger to a person of reasonable sensibility. ” Id . at 347. Viewed in the light most favorable to the v erdict, the evidence show ed that Ramirez pulled a handgun , aimed it, and began firing in the direction of all the

o ff icers, including Of

fi cer Boyd. Specifically, Sergeant McGee testified that he was in10

a grou p of officers tha t included Officer Boyd and that Ramirez was firing toward the officers on either side of him. 3 He clarified that the gun was pointed at him and

“ everyb ody else, ” an d he was co nv i nced that one of the officers was going to be shot. See Robinson v. State , 596 S.W.2d 130, 133 n.7 (Tex. Crim. App. 1980) ( “ While it is true that the threat must be of imminent infliction of bodily injury or death, it is also tr ue that the d i splay of a deadly weapon of and within itself constitutes a threa t of the required imminent harm. ” ) ; see also Cantu v. State , 953 S.W.2d 772, 775 (Tex. App.

— Corpus Christi

– Edinburg 19 9 7, pet. ref ’ d) (holding that pointing loaded gun at pursui ng off

icer is threate ni ng conduct supporting aggravated

- assault conviction ) Fur ther, although Officer Boyd did not testify, the jury could have inferred from the circumstances that Ramirez threatened him too, with imminent bodily injury. The other five of

ficers at the scene all te st ified that they feared f

or their lives when the sho oting began. Given that Office r Boyd was in the middle of that same group , it

was re asonable to conclude that the circumstances were such that they would portend an immediate t hreat to a pe rson of reason able sensibility in Officer Boy d ’ s posi tion. See Olivas , 203 S.W.3d at 347; Sosa v. State , 177 S.W.3d 227, 231 (Tex. App.

— Houston [ 1st Dist.] 2005, no pet.) (holding that , even though victim did not testify, evidence

was suffici ent to suppor t conviction f or aggravated assault where d efendant held gun,

3 A diagram introduced at trial es sentially placed Officer Boyd in the middle (though standing toward the rear of the group ) of the six police officers at whom Ramirez fi red his weapo n.11

demanded money, and walked in and out of bedroom where victim remained on the floor). We overrule Ramire z ’ s second poi nt . IV. CONCLUSION Having overruled Ramirez ’ s two points , we affirm the tr ial court ’ s j u dgments. /s/ Brian Walker Brian Wa lk er Jus t ice Do Not Publish Tex. R. App. P. 47.2(b) Delivered : January 18, 2024