BOBBY LEE RAMSOUR, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 12, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00094-CR
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BOBBY LEE RAMSOUR, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-54645-N
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OPINION
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice Francis
        Bobby Lee Ramsour appeals his conviction for the murder of Alland Hagans, Jr. The jury made an affirmative finding on use of a deadly weapon and also made an affirmative finding that appellant committed murder while under the immediate influence of sudden passion arising from an adequate cause. The jury assessed punishment, enhanced by two prior convictions, at thirty-five years in prison. In five points of error, appellant claims the evidence is legally and factually insufficient to support his conviction, the jury charge submitted was erroneous, the trial court abused its discretion in admitting certain evidence, and his sentence is illegal. We affirm.
        Appellant and Hagans were competing drug dealers in a neighborhood that encompasses the Oakland Apartments in the middle of South Dallas. Hagans, who was confined to a wheelchair, moved into the apartment complex a few weeks prior to his death. Appellant told Hagans several times that he should move but Hagans declined to do so. On July 6, 2007, police responded to a shooting call and on arrival, they discovered Hagans who had been shot several times. He was declared dead at the scene. Appellant was arrested and charged with Hagans's murder. Rejecting appellant's claim of self-defense, the jury convicted him of murder and made an affirmative finding on use of a deadly weapon. Following punishment, the jury made an affirmative finding on sudden passion and found both enhancement paragraphs true. The jury then assessed punishment at thirty- five years.
        In his third and fourth points of error, appellant claims the evidence is legally and factually insufficient to support the jury's implied rejection of his self-defense claim.
        On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court must give deference to “the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, “we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements” of the offense “beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A factual sufficiency review is “barely distinguishable” from a Jackson legal sufficiency review. Id. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask “whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.” Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
        A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). The person may be justified in using deadly force against another “when and to the degree he actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful deadly force.” Tex. Penal Code Ann. §§ 9.31(a), 9.32.(a) (Vernon Supp. 2009). The defendant has the initial burden of producing evidence to raise self-defense; the State then has the final burden of persuasion to disprove it. Saxton, 804 S.W.2d at 914. The State is not obligated to offer evidence refuting a claim of self-defense; rather, the State is required to prove its case beyond a reasonable doubt. Id. When a fact finder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, we do not look “to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements” of murder “beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Saxton, 804 S.W.2d at 914. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask “whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.” Zuliani, 97 S.W.3d at 595.
        The indictment charged appellant with intentionally and knowingly causing the death of Hagans by shooting Hagans with a firearm, a deadly weapon. Sixteen-year-old Dominique Jones told the jury he sold drugs for Hagans, and Hagans paid him 30% of what he sold. Appellant also sold drugs in the neighborhood and had been doing so longer than Hagans, who had moved into the Oakland Apartments shortly before his death. Jones knew appellant and considered him a friend. Appellant told Hagans he needed to leave the area but Hagans refused. On the day of the shooting, appellant approached Jones in the parking lot of the apartment complex and was talking to him. Hagans arrived and began arguing with appellant about why appellant was talking to Jones. Hagans told appellant he was going to put him “on a T-shirt,” meaning he was going to kill appellant. According to Jones, appellant shook his head and walked away. Hagans called someone to bring him a gun, but the person he called did not do it. Hagans owned a gun but left it in his apartment under the couch.
        About thirty to forty-five minutes later, someone began shooting fireworks in the parking lot. Hagans told Jones he was going to go inside the building and that Jones needed to open the door for him. Jones noticed appellant was standing on a corner near the stairs of the apartment complex and to get to the door, Jones and Hagans had to walk by appellant. Jones went first so he could hold the door for Hagans. When he reached the door, he heard three or four gunshots. Jones ducked and looked around. Appellant, who was carrying a gun, came up to Jones, grabbed him by the collar, and said “Let's go.” They went to Hagans's apartment; appellant's nephews, Jeremy and Alexander Ramsour, also went inside. Jones gave drugs to appellant who then left. Jones followed appellant out leaving the other two inside. Appellant later told Jones that if anyone asked about Hagans's shooting, he was to say he was inside and did not know what happened. Appellant also told Jones he would not hurt him because he knew Jones's dad.
        Jessica Thornton was also present that day and saw appellant and Hagans outside the apartments. Her mother lived at the apartment complex so she knew appellant and knew he had an apartment but said he just worked out of it and did not actually live there. While Hagans was talking with a friend on the sidewalk near the parking lot, she heard firecrackers. Appellant was leaning against the wall of the apartment complex and appeared mad or upset. Thornton spoke with Hagans, then walked towards the stairs of the apartment complex where her sister was. Her boyfriend, Jeremy, was standing under the stairs. Thornton said Hagans did not have a gun.
        Later, Thorton noticed Hagans in his wheelchair coming up the sidewalk toward the building. She walked passed him, away from the building and toward the parking lot. After she passed him, Thornton turned around and saw Hagans had stopped his wheelchair; it appeared to be on appellant's foot. Appellant knocked Hagans out of the wheelchair, grabbed a gun, and began shooting Hagans. When Thornton realized what was happening, she turned and started to run. She fell and, when she could not get up, realized she had been shot in the ankle. Thornton looked for Jeremy but he was no longer under the stairs. He later appeared while she was waiting on the ambulance and told her not to say anything. When police at the hospital interviewed Thornton, she initially misidentified the shooter as “Bobby Johnson.” Later that day, she told them the truth and identified appellant as the shooter. She later admitted Jeremy had told her to tell the police the name “Bobby Johnson.”
        In April 2007, Joyce McLemore and her three sons moved into an apartment across the hall from appellant. She did not know appellant personally but knew of him. Prior to his death, Hagans had been in the complex about three to four weeks, and she had only recently met him. Both men dealt drugs, and they argued about turf. Although McLemore had not seen any physical confrontations, she did recall a day when Hagans had a gun under his wheelchair and pointed it at appellant's nephew, Gary Hughes.
        On the day of the shooting, McLemore was sitting with her cousin in her cousin's car. The two women were talking and watching McLemore's oldest son, Rodney, who is mentally challenged. Rodney was sitting on the stairs alongside the apartments; appellant was standing next to the wall, watching Hagans and another guy. A man arrived and began handing sparklers to some of the children and shooting fireworks in the parking lot. McLemore noticed appellant looked upset and commented to her cousin, “It looks like something is fixing to go down over here.” Hagans, who did not have a gun, headed up the sidewalk toward the building and ran over appellant's foot. Hagans then told appellant he could “suck dick like [he] did in prison.” Appellant ran inside, came back with a gun, and started shooting. Hagans fell out of the wheelchair. McLemore ran to the stairs but Rodney had gone inside. She turned to appellant and said, “You just shot Jessica, Bobby; you just shot Jessica.” She then ran inside to get her sons and saw Jeremy knocking on Hagans's door. When Jones answered, Jeremy put the gun to his head and told him to get out. He and Gary Hughes went in Hagans's apartment and came out with two large trash bags. They left, holding Jones at gunpoint. Appellant later apologized to McLemore for shooting Hagans in front of Rodney. He told her he “just lost it.”
        Vicki Hall, trace evidence examiner at Southwestern Institute of Forensic Sciences, tested the gunshot residue collection kit containing samples collected from Hagans's hands at the time of his autopsy. The presence of gunshot residue could indicate Hagans was near a gun being shot, held his hands up defensively while being shot at, or fired a gun. When testing for gunshot residue, Hall looks for the presence of the three major components of ammunition primer-antimony, barium, and lead. Examining Hagans's hands, Hall found five particles-two on the back of his right hand and three on the back of his left hand. The particles contained a combination of antimony, barium, and barium aluminum. Hall did not find any lead particles. The combination found on Hagans's hands could be gunshot residue or could be just from the environment, for example, from fireworks or pyrotechnics. Hall could not “say absolutely that it is or that is isn't” gunshot residue. Although it was “consistent with” gunshot residue, she stated it was “not absolutely gunshot residue.”
        Detective Paul Ellzey, homicide detective for the Dallas Police Department, investigated Hagans's murder. He was on the scene the evening of the shooting and, over the following weeks, interviewed many of the people who were present at the time. His investigation revealed no evidence that Hagans had a gun that day. None of the eyewitnesses interviewed stated Hagans had a gun at the time of his murder, and when Ellzey interviewed appellant's nephews, Jeremy and Alexander, they did not discuss Hagans's having had a gun.
        Jeremy told the jury he sold drugs with his uncle. Jeremy had heard bad things about Hagans before he arrived in the neighborhood and knew Hagans carried a gun. On the day in question, appellant and Hagans were arguing on the sidewalk. Nephews Alexander and Hughes were not present, nor was Jones. Hagans said he was going to put appellant on a t-shirt, and when appellant started to walk away, Hagans stood up, took out a black automatic pistol, and pointed it at appellant who then reached for it. The two men wrestled over the gun, and it went off, hitting Thornton. Appellant got the gun, hit Hagans with it, and started to walk away. Hagans fell back. He eventually got back in his wheelchair, reached in his pocket, and pulled out “something chrome.” Hagans shot at appellant who, in turn, shot Hagans. According to Jeremy, appellant was “[d]efending himself.” Appellant took Hagans's chrome gun and left. Jeremy denied going to Hagans's apartment after the shooting, saying he called a friend to pick him up after Thornton was taken to the hospital. Jeremy admitted his testimony at trial was the first time he related what “actually” happened that day and that appellant acted in self-defense. He admitted having previously lied about what happened.
        Appellant testified he had been using cocaine off and on for about twenty years and had been in the penitentiary several times for his drug habit. He occasionally sold marihuana and cocaine out of the apartment at the Oakland Apartment complex and said seven or eight other drug houses operated in the complex. No one had any exclusive rights to the area, and everyone got along until Hagans arrived. On the night of the shooting, appellant was selling fake Nike tennis shoes in the area. Hagans was sitting in his wheelchair near the parking lot, selling drugs, and Jones was with him. Appellant walked up and asked if they wanted to buy some tennis shoes. He said Hagans “just went . . . off from there,” and started calling appellant name. He said he was going to shoot appellant and put him on a t-shirt. Appellant walked away.
        Later, Hagans rolled up the sidewalk to appellant and again said he was going to put appellant on a t-shirt. When Hagans stood up and pulled a gun, appellant grabbed it, and the gun went off. The two struggled, and appellant ended up with the gun. Appellant hit Hagans on the side of the head, and Hagans fell to the ground. He started to walk off, then “turned around and started shooting at [Hagans]” because Hagans had fired at least two shots at appellant. He was not sure how many times he shot Hagans because he never had a gun or shot a gun before. When he stopped shooting, he walked over and took Hagans's other gun. Appellant walked inside, unloaded both guns, threw them in the outdoor trashcan, and drove off.
        On cross-examination, appellant denied having had previous problems with Hagans and denied knowing Thornton had been shot. He heard Jeremy testify they sold drugs together but claimed he only gave Jeremy money to buy drugs. He did not know why Jones, Thornton, and McLemore testified untruthfully at trial. After hearing this and other evidence, the jury found appellant guilty of murder.
        Although appellant claims he was scared and shot Hagans in self defense only after Hagans fired two shots at him, several witnesses dispute appellant's version. Three eyewitnesses to the events of that day testified Hagans had no gun. The detective who interviewed witnesses testified no one reported Hagans had a gun that day. After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of murder and the same rational trier of fact would have found against appellant on the self-defense issue. See Saxton, 804 S.W.2d at 914. Furthermore, from a factual sufficiency viewpoint, the State's evidence was not so obviously weak that the convictions were clearly wrong and unjust, nor was the evidence, when considering conflicting evidence, against the great weight and preponderance of the evidence. While we recognize this Court has a limited ability to substitute our judgment for that of the jury, nothing in the record before us compels us to do so. Having deferred to the jury's determinations on weight and credibility, we conclude the evidence is legally and factually sufficient to support appellant's murder conviction. We overrule his third and fourth points of error.
        In his first point of error, appellant claims his thirty-five year sentence is illegal. Appellant argues his punishment cannot be enhanced with his prior felony convictions under penal code section 12.42 because nothing in section 19.02 specifically provides for habitual felony enhancement.
        Chapter 19 sets out the substantive law on criminal homicide: murder, capital murder, manslaughter, and criminally negligent homicide. Tex. Penal Code Ann. § 19.01 (Vernon 2003). Section 19.02 outlines the elements of the offense of murder as well as the applicable punishment ranges. Tex. Penal Code Ann. § 19.02. If a defendant commits murder by intentionally or knowingly causing the death of an individual, the offense is punished as a first degree felony. Id. § 19.02(b)(1). However, if at the punishment stage of a trial, the defendant raises the issue “as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause” and proves the same, the offense is punished as a second degree felony. Id. § 19.02(d).         In contrast, chapter 12 of the penal code addresses punishment only and includes subchapter D entitled “Exceptional Sentences.” See id. §§ 12.01-12.51 (Vernon 2003 and Supp. 2009). Under this subchapter, the State may seek to increase the penalty for an offense if the defendant is a “repeat” or “habitual” offender. See id. § 12.42. The legislative purpose behind section 12.42 is to “punish more harshly persons who repeatedly commit crime.” Jordan v. State, 256 S.W.3d 286, 293 (Tex. Crim. App. 2008). Section 12.42 applies to a person “adjudged guilty of an offense” under the penal code and states that person “shall be punished in accordance with [Chapter 12] and the Code of Criminal Procedure.” Tex. Penal Code Ann. § 12.01(a). Under section 12.42, the State may seek to increase the penalty for a section 19.02 murder if the defendant “has been previously convicted of a felony,” regardless of whether the defendant is found guilty of a first or second degree felony under section 19.02. We find support for this conclusion in the plain language of section 12.42(b) that allows for an exception to enhancement under circumstances not applicable to this case. This language evidences that the legislature knew how to provide for exceptions to section 12.42(b). We reject appellant's contention that his sentence was illegal and overrule appellant's first point of error.
        In his second point, appellant contends the jury charge was erroneous. Although he did not object at punishment, he now claims the sequence of the charge confused the jury and led to the assessment of an illegal sentence. Appellant bases his argument on his contention, raised in his first point, that the jury could not enhance appellant's sentence under section 12.42(b) because he was convicted under section 19.02 that does not specifically allow for enhanced punishments. Having previously addressed and rejected this complaint, we conclude we need not revisit it here. We overrule his second point of error.
        In his fifth point of error, appellant claims the trial court erred in admitting evidence of jail conversations appellant had with others. Appellant contends exhibits 80, 81, 82, 84, and 113 were not relevant and were highly prejudicial.         To the extent appellant complains about exhibits 80, 81, and 82, the record shows these exhibits were offered for record purposes only. The record does not show the State offered the exhibits for all purposes or that the jury heard these recorded conversations. Therefore, we need not address exhibits 80, 81, or 82. Exhibit 113 was offered and admitted without objection. Because appellant did not object to this exhibit, he has waived any error with respect to its admission.
        Assuming without deciding the admission of exhibit 84 was improper on relevance grounds, our examination of the record in its entirety leads us to conclude the alleged error did not affect a substantial right of appellant. See Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271 (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). In this case, appellant admitted shooting Hagans so the only issue was whether he did so in self defense. The medical examiner testified Hagans was shot eight times. At least three eyewitnesses watched appellant shoot Hagans, and none of these witnesses saw Hagans with a gun. The investigating detective interviewed numerous witnesses, none of whom said they saw Hagans with a gun. In light of the evidence in the case and the fact the State made only a fleeting reference to the recorded conversations during closing, we conclude the complained of evidence did not have a substantial or injurious influence on the jury's decision. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). We overrule appellant's final point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090094F.U05