Mike Serna Ramos v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00777-CR

Mike Serna RAMOS,

Appellant

v.

The STATE of Texas ,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-5054

Honorable Olin B. Strauss , Judge Presiding

Opinion by: Catherine Stone , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: July 12, 2006

AFFIRMED

Mike Serna Ramos was found guilty of aggravated sexual assault and sentenced to 25 years in prison. Ramos' sole issue on appeal is that the evidence is factually insufficient to sustain the jury's verdict of guilt. We affirm the trial court's judgment.

Factual and Procedural Background

On November 27, 2002, Crystal Micciche and some friends went to a bar in San Antonio. Testimony revealed that Micciche was dancing completely nude in the bar with several other women, which Micciche denies. A confirmed verbal and alleged physical altercation began between some of these women and Micciche. As the altercation moved outside of the bar, Ramos pulled up in his vehicle and asked Micciche if she needed a ride. Micciche accepted the offer, and testified that she accepted the ride because she had a minor criminal record and could not afford any more trouble. She stated that she thought Ramos was offering to help her. Micciche stated that she asked Ramos to take her home; however, she contends that he refused. Instead he drove her to a remote area and kept stating that Micciche broke his necklace and she was going to pay for it.

Eventually Ramos pulled his vehicle to the side of a remote road, but his vehicle got stuck in the mud. At this point Micciche testified that she tried to get out of the vehicle, but Ramos would not let her. She stated she tried to escape on three separate occasions without success. During one of these attempts Micciche managed to hit Ramos and knock him down, and as a result, Ramos' head was injured and began to bleed. Micciche also testified that while in Ramos' vehicle, he smoked some marijuana. Micciche testified that after the third attempt to escape, Ramos pulled her back in the vehicle, got on top of her, took her pants off, and ultimately raped her. After the sexual assault, Micciche testified that she "felt wet." Finally she managed to escape the vehicle and ran until she found some houses. Ms. Anaya, a homeowner, let Micciche come inside her home. Anaya testified that Micciche was crying and appeared frightened; thus, Anaya called the police.

Micciche was questioned by police and taken to the hospital where she was given a sexual assault examination. The examiner documented approximately 26 to 28 bruises and scratches on Micciche's body, and nearly all of the injuries were from the torso and up. The examiner's report concluded that Micciche sustained severe vaginal tenderness, but no tearing, swelling, or puffiness was present. The examination concluded that seminal fluid was found in Micciche's panties; however, the DNA testing could not confirm that the fluid was from Ramos.

Officer Padilla was dispatched to the area where Ramos' vehicle got stuck in the mud to attempt to recover evidence. Upon arriving, the vehicle was still there; however, Ramos was apprehended over a mile away from his vehicle walking down the road. The officers found two sealed condoms and a baggie of marijuana on Ramos. Officer Padilla testified that Ramos had injuries to his forehead and the bridge of his nose, and the officer observed grass stuck in Ramos' hair and jacket.

After a search of Ramos' vehicle, a pocketknife was found lodged underneath the driver's seat. The seat cushions inside the vehicle were tested for evidence of sexual assault, but no such evidence was found. Ramos' clothing was also tested. The exam revealed that on Ramos' boxers and on the inside of his pants, nucleated epithelial cells were present. These cells are from mucous-type membranes, such as those found in the mouth, nose, and vaginal and rectal areas. Various DNA examinations were conducted concerning blood samples and tissues found on the individuals and their clothing, but no test conclusively established that Ramos' DNA was present on Micciche's body or her clothing. On the other hand, no test conclusively ruled out Ramos as the source of the foreign DNA on Micciche or her clothing. In sum, the DNA testing was inconclusive.

After a full trial on the merits, the jury found Ramos guilty of aggravated sexual assault. Ramos was sentenced to 25 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Ramos contends the evidence to support the jury's verdict is factually insufficient.

Factual Sufficiency

The only question to consider in a factual sufficiency review is whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Rather than considering the evidence in a light most favorable to the verdict, all of the evidence is considered in a neutral light. Id. There are two ways in which evidence may be insufficient to support a verdict. Id.

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.

Id. at 484-85.

Under the first view, considering only the evidence supporting the verdict, we hold that the evidence was factually sufficient. The offense of aggravated sexual assault occurs if a person:

intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;...or causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;...[and] if the person uses or exhibits a deadly weapon in the course of the same criminal episode.

Tex. Pen. Code Ann. 22.021(a) (Vernon Supp. 2006).

Micciche testified that Ramos had sexual intercourse with her, without her consent, and held a lock-blade pocketknife at his side during the sexual assault. To corroborate this testimony, evidence from the sexual assault examination revealed that seminal fluid was found inside of Micciche's panties, Micciche complained of extreme tenderness of her vagina, and around 26 to 28 bruises and scratches were found on Micciche's body. Upon apprehending Ramos, nucleated epithelial tissue was found inside of Ramos' pants and boxer shorts, and Micciche positively identified Ramos as the assailant. Micciche's story was corroborated that Ramos was armed when his vehicle was searched and a lock-blade knife, similar to the one she described, was found wedged underneath the driver's seat. Micciche also testified that Ramos smoked some marijuana after he pulled her back in the car a second time, which was consistent with the discovery of marijuana on Ramos' person shortly after the alleged assault occurred.

The evidence supporting the verdict is not too weak to support the jury's verdict that Ramos committed the offense of aggravated sexual assault. See Zuniga, 144 S.W.3d at 484-85. However, this is only the first test of factual sufficiency as explained in Zuniga. Id. Under the second standard for a factual sufficiency challenge, all the evidence, supporting and contrary, is considered. Id. Our analysis may consider only those matters bearing on credibility that can be fully determined from the appellate record. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). We may disagree with the jury's determinations when the record clearly indicates that such a step is necessary to avoid a manifest injustice. Id. at 9. Otherwise, we must afford deference to the jury's determinations concerning the weight and credibility of the evidence. Id.

The same supporting evidence analyzed in our first review applies here. Ramos contends the record illustrates that the evidence supporting the verdict is clearly outweighed by the contrary evidence. As support, Ramos focuses on the lack of DNA evidence. Specifically, any testing of Micciche's person, her clothing, his clothing, or the cloth in his truck failed to conclusively establish that a sexual assault occurred. In response to questioning by the sexual examiner, Micciche indicated her last consensual sexual encounter occurred the day before the sexual assault. Although Micciche claims to be of homosexual orientation, the examiner did not ask whether the consensual sex was with a male or female. Ramos argues that if Micciche's partner was a male, it could explain the seminal fluid in Micciche's panties or the tenderness of her vagina.

Furthermore, Ramos contends the 26 to 28 bruises and scratches could be explained by the altercation that Micciche was in with the other women at the bar, especially because Micciche was nude during the altercation. Hypothetically, Ramos states that a sexual assault of a woman with no pants or panties on would arguably produce some bruises and scratches below the torso, which is contrary to Micciche's situation. Also, Micciche claimed that after the assault she "felt wet," due to Ramos ejaculating inside of her. However, Ramos argues that the absence of seminal fluid found inside of Micciche is inconsistent with her story. Ramos points out that no fingerprints were found on the pocketknife, much less his own fingerprints. The lack of fingerprints is inconsistent with Micciche's story that Ramos was holding the knife before and during the assault.

Much of Ramos' contrary evidence or hypothetical explanations concerning the supporting evidence pertains to the weight and credibility of the evidence. Because the record does not clearly indicate the jury's determinations were wrong, we defer to their findings. Id. The contrary evidence is not so strong as to preclude the jury's determination of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85.

Ramos' only issue is overruled and the trial court's judgment is affirmed.

Catherine Stone , Justice

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