Ricardo Ramirez v. The State of Texas--Appeal from 283rd District Court of Dallas County

cr4-597.ramirez TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00597-CR
Ricardo Ramirez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF DALLAS COUNTY, 283RD JUDICIAL DISTRICT
NO. F94-53523-LT, HONORABLE TEMPLE DRIVER, JUDGE PRESIDING

PER CURIAM

 

A jury convicted Ricardo Ramirez of robbery. (1) The jury assessed his sentence at three years' imprisonment. Ramirez asserts by his sole point of error that the trial court abused its discretion in admitting testimony involving an extraneous offense. We will affirm the conviction.

Ramirez does not dispute the evidence showing the elements of his offense. Larry Lee, a supermarket meat market manager, saw Ramirez quickly pick up a large round roast and leave the meat counter. In Lee's experience, people who act like this usually intend to shoplift. He tracked Ramirez through the store. When he found him, Lee noticed that, though Ramirez was no longer carrying the roast in his hands, he had a newly developed, unusually large bulge in the front of his pants.

Ramirez left the store without paying for the roast. Lee and another store employee followed him out of the store and asked Ramirez to stop. Ramirez turned around, holding an opened pocketknife in his hand. Feeling threatened, the store employees backed off. Ramirez walked away.

Lee hailed two police officers who were at a nearby Burger King. The officers detained Ramirez. They removed both the pocketknife and the roast from Ramirez's pants. Lee got a third store employee to interpret for Ramirez, who spoke Spanish and broken English. The third employee interpreted the Miranda warning and the store's warning for Ramirez not to return to the store.

Ramirez testified that, though he did not remember the events, he could not deny that they occurred. He said he had drunk sixteen beers the previous evening and had drunk between twelve and twenty-four beers that morning. The store employees testified that Ramirez smelled of beer but did not seem intoxicated. The police officer adjudged Ramirez slightly intoxicated.

The basis of this appeal is the interpreter-employee's testimony that Ramirez threatened to "get" the person who summoned the police. Ramirez contends that the admission of this testimony, over his objection, amounted to admission of the extraneous, uncharged offense of terroristic threat. He contends that the admission of the evidence unduly prejudiced his defense by inflaming the minds of the jurors against him.

An extraneous offense is not admissible to prove the character of the defendant in order to show he acted in conformity therewith. Tex. R. Crim. Evid. 404(b). It may, however, be admissible for other purposes, such as showing a consciousness of guilt. Torres v. State, 794 S.W.2d 596, 599 (Tex. App.--Austin 1990, no pet.); see also Tex. R. Crim. Evid. 404(b). Evidence of threats against or attempts to intimidate a State's witness show consciousness of guilt and are admissible. Torres, 794 S.W.2d at 598-99. The evidence may nevertheless be inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. 403; Torres, 794 S.W.2d at 599-600. Evidence unduly prejudices when it inappropriately suggests to the jury an improper, often emotional, basis for their decision. Id. at 600.

The interpreter-employee's testimony about Ramirez's threat showed Ramirez's immediate awareness of guilt without suggesting an improper emotional basis for the jury's decision. We hold that the court did not err by admitting the evidence.

Even if the court erred by admitting this evidence, we can affirm the judgment if we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 81(b)(2). The jury charge provided:

 

[i]f you believe from the evidence beyond a reasonable doubt that the defendant, RICARDO RAMIREZ, . . . did then and there, while in the course of committing theft and with intent to obtain or maintain control of the property of LARRY LEE, the said property being a roast, without the effective consent of the said LARRY LEE, and with intent to deprive the said LARRY LEE of said property, did then and there knowingly or intentionally threaten or place the said LARRY LEE in fear of imminent bodily injury, then you will find the defendant guilty of the offense of robbery, as charged in the indictment . . . .

 

Lee's uncontroverted testimony showed that Ramirez took the roast, stuffed it in his pants, and walked out. When confronted by Lee and another employee outside the store, Ramirez brandished the knife, placing Lee in fear of imminent bodily injury. When Lee and his fellow employee backed off, Ramirez walked away without returning the roast. The police confirmed that they found a knife and roast in Ramirez's pants.

In light of the overwhelming, uncontroverted testimony establishing the elements of the offense of robbery, we are convinced beyond a reasonable doubt that the testimony regarding the threat did not contribute to the conviction.

We hold that the court did not commit error, much less harmful error, by admitting evidence of Ramirez's threat to "get" the people who called the police. We overrule point one and affirm the judgment.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: August 23, 1995

Do Not Publish

1. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 29.02, 1973 Tex. Gen. Laws 883, 926 (Tex. Penal Code Ann. 29.02, since amended).