Jeremy Alexander Ramirez v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County (memorandum opinion )
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00084-CR Jeremy Alexander RAMIREZ, Appellant v. The STATE of Texas, Appellee From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR7767 Honorable Juanita A. Vasquez-Gardner, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice Delivered and Filed: December 19, 2012 AFFIRMED Jeremy Alexander Ramirez was convicted of aggravated robbery and sentenced to twenty years of imprisonment. On appeal, he argues that the trial court erred in denying [his] two specially requested jury instructions on the issue of eyewitness identification testimony. According to Ramirez, the requested instructions were designed to provide the jury with precautionary instructions regarding the accuracy of eyewitness testimony. The Texas Court of Criminal Appeals, however, has held that such jury instructions constitute an impermissible comment on the weight of the evidence and should not be given. See Roberson v. State, 852 04-12-00084-CR S.W.2d 508, 511 (Tex. Crim. App. 1993); see also Waller v. State, 581 S.W.2d 483, 484 (Tex. Crim. App. 1979) (explaining that the trial court correctly denied in refusing the requested jury instruction because it would have been error for the trial court to single out the facts concerning [the witness] s identification of appellant and magnify them before the jury. This would constitute a comment on the weight of the evidence. ). In support of his argument, Ramirez cites Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011). In Tillman, the defendant proffered the testimony of Dr. Roy Malpass as an expert on eyewitness identifications. Id. at 432-33. After a hearing outside the presence of the jury, the trial court excluded the testimony. Id. at 433. The court of criminal appeals granted review to address whether the expert testimony regarding eyewitness identification should have been excluded. Id. at 434. The court of criminal appeals concluded that the expert testimony was reliable and relevant, holding that the trial court abused its discretion when it excluded reliable, relevant evidence that would assist the trier of fact by increasing the jurors awareness of biasing factors in eyewitness identification. Id. at 442. Thus, Tillman concerned the admissibility of expert testimony relating to eyewitness identification and does not consider whether a jury instruction on eyewitness identification is appropriate. We therefore hold that the trial court did not err in refusing Ramirez s requested jury instructions. See Hudson v. State, No. 14-07-00888-CR, 2009 WL 196060, at *7 (Tex. App. Houston [14th Dist.] 2009, pet. ref d) (holding that jury instruction regarding eyewitness identification was an impermissible comment on the weight of the evidence); St. Luce v. State, No. 14-98-01316-CR, 2000 WL 1862843, at *1 (Tex. App. Houston [14th Dist.] 2000, pet. ref d) (explaining that a jury instruction about the evaluation of eyewitness identification testimony is an improper comment on the weight of the evidence). -2- 04-12-00084-CR The judgment of the trial court is affirmed. Karen Angelini, Justice DO NOT PUBLISH -3-
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