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Date: 12-04-2017

Case Style:

Victor Ramires v. The State of Texas

arrant County Jailer Hospitalized After Alleged Attacked By Inmate

Case Number: 02-16-00185-CR

Judge: Bill Meier

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney: Debra A. Windsor
Edward L. Wilkinson

Defendant's Attorney: Brian Salvant
Adam Arrington

Description: On February 17, 2016, Tarrant County Sheriff’s deputies prepared to
return Ramires from John Peter Smith Hospital back to jail. Informed that he
would be discharged from the hospital, deputies unchained him from the hospital
bed on which he lay, ordered him to change into his jail uniform, and searched
him after he had finished changing.
Because Ramires had previously lost both his legs below the knee, he had
to be taken to the hospital exit in a wheelchair. According to one of the officers
who testified at trial, normal jail procedure is to chain an inmate to a wheelchair
by his leg, but this was not possible in Ramires’s case, so the guard used a “belly
chain”—a restraint that locks around an inmate’s waist and is connected by short
chains to both wrists—to secure him. Ramires protested the use of the chain,
but the deputy insisted and handcuffed his arm to the arm of the wheelchair.
After he and another officer secured Ramires in the van, Detention Officer
Willie Clayborn began to drive the van from the hospital to the jail. As he drove,
Clayborn took a right turn and then heard a scream of “distress” or “pain” from
the back of the van. Ramires cried out, “You turned the corner too fast.”
Clayborn said that he was skeptical because the stoplight had just changed and
that he had negotiated the turn “real slow” to ensure that the wheelchair “stayed
secure.” Ramires was nevertheless “yelling and screaming.” Worried about
Ramires’s welfare, Clayborn pulled onto a side street to get out of the flow of
traffic and parked by the curb. Looking in his rearview mirror, Clayborn was
3
startled to realize that he could see the back of the wheelchair but could not see
Ramires. He got out and tried to peer through the side door window, but the
sun’s reflection was so bright that he could not see inside. When Clayborn
walked to the back of the van and opened the doors, he discovered that Ramires
was apparently wedged between part of the lifting apparatus inside the van and
the arm of his wheelchair, which had twisted slightly from where it had originally
been strapped down. Fearing that Ramires was in great pain from the way he
sounded, Clayborn asked if he was hurt. Ramires again repeated his accusation
that Clayborn had “turned the corner too fast.” Clayborn then lowered the
wheelchair ramp as he responded, “No way I could have turned the corner fast.”
Clayborn entered the van and unlocked Ramires’s wrist from the belly
chain so he could get him resettled into his seat. As soon as Clayborn got
Ramires seated properly in the wheelchair, Ramires grabbed Clayborn in a bear
hug, pinning his arms. Yanking Clayborn’s gun belt, Ramires said, “I got your
gun now. I got your gun now. . . . I’m going to kill you, mother f****r. I’m going to
kill you.” The pair struggled. But because of a special release mechanism on
the holster, Ramires was unable to gain control of the firearm.
Unable to break Ramires’s grip, Clayborn started “banging” both their
bodies against the interior of the van. Eventually, Clayborn was able to work his
baton out of his belt, and he struck Ramires approximately four times, each time
ordering him: “Let go.”
4
After Ramires loosened his grip, Clayborn managed to slide his hand
under Ramires’s chin and pried up, lifting both their bodies. As he did this,
Clayborn’s foot slipped, and he hit the edge of the van as he fell. Stunned, he
dropped his baton and reached down with his hand to break his fall. By
coincidence, the baton was just below him, and he picked it up and started
swinging again.
From there, Ramires leaned forward and made a thrusting motion towards
Clayborn with a “shiny” piece of aluminum, about seven or eight inches long, that
had been sharpened at one end and wrapped with white masking tape on the
other. Clayborn said that he felt as if one knife blow had struck his glasses. He
then swung at Ramires’s right hand with the baton, knocking the weapon away.
Ramires then declared, “That’s not mine,” and he did not try to recover the knife
from where it had fallen on the lift.
It was not until after the struggle that Clayborn discovered that he had
been stabbed in the face. In all, Clayborn suffered three “deep scratches” to his
face and head, as well as torn cartilage in his knee and a severely strained
shoulder. Due to his injuries, he was off work completely for almost a month, and
by the time of trial, nearly three months later, Clayborn was still assigned only
light duty. A jury found Ramires guilty of aggravated assault against a public
servant, and it also found that he had used a deadly weapon during the assault.
During the punishment phase, the State adduced evidence that Ramires
had sexually abused a child, K.C., while he had been living with K.C.’s mother.
5
Ramires had become involved with K.C.’s mother when K.C. was still a baby,
and he had become like a “stepfather” to her. He began sexually abusing her
when she was five or six. Initially, he had her masturbate him, but he soon
progressed to having her perform oral sex. The abuse continued as she got
older, and Ramires began having intercourse with and performing oral sex on her
as time progressed. Even though Ramires and K.C.’s mother split up when K.C.
was thirteen or fourteen, he continued to sexually assault the teenager when she
visited him. Ramires even told the young girl often that when she turned sixteen,
they would run away together. Concluding that she did not want to leave her
family, K.C. averred that she contemplated suicide. K.C. finally reported the
abuse in late 2014 when she discovered that Ramires had attempted to assault
her twin sister, M.C. Ramires, nevertheless, sexually assaulted K.C. a final time
on Valentine’s Day of 2015.
M.C. confirmed that on Christmas Eve of 2014, when she was fourteen
years old and visiting Ramires with her sister K.C., he had approached her
wearing only boxer shorts while visibly aroused. Lying next to her, Ramires
pressed his erection against the teenager’s buttocks as he told her he could “fix
[their] relationship” and suggested that they could be “more intimate.” Disgusted,
M.C. feigned exhaustion, and Ramires went back to his room.
The State also introduced evidence that Ramires had used illicit drugs in
front of the children (he and the twins’ mother had a son of their own), had been
convicted of possession of marijuana and placed on deferred adjudication, and
6
had been placed on probation as a juvenile for unlawful carrying of a weapon and
possession of marijuana.
Additionally, the State provided evidence that Ramires did not appear for a
bond hearing while awaiting trial on charges of continuous sexual abuse and
indecency with a child. He was apprehended several months later at a waterpark
with his girlfriend as they tried to leave the area. As a result of his failure to
appear, Ramires had to wear a GPS ankle monitor as a condition of a second
pretrial bond. After wearing the monitor for only a month, he failed to appear for
another court date and cut off the ankle monitor. Officers with the North Texas
Fugitive Task Force staked out a pet store where Ramires’s girlfriend worked, in
hopes of apprehending him if he attempted to contact her. Apparently tipped off
to the surveillance, Ramires accelerated through a parking lot across the street,
ran a red light, and led officers on a high-speed automobile chase that only
ended when he lost control of his vehicle and crashed it. He fled the wreck on
foot. Police units combed the area, and Ramires was eventually found lying on
railroad tracks, with his feet mangled.
Ramires admitted, during the punishment stage, that he had fashioned one
knife out of a piece of metal that he removed from his wheelchair, was “in the
process” of making another, and had kept both hidden in the wheelchair. He
claimed that he had made them only to protect himself from several “mental”
prisoners he occasionally encountered in the jail infirmary. He denied attacking
Clayborn and asserted that they had fought only because Clayborn had begun to
7
beat him with his baton after Clayborn had placed him back into his wheelchair.
He also denied pulling the knife on Clayborn and maintained that the deputy’s
face became scratched during their struggle when he grabbed it in an effort to
stop the beating. According to Ramires, the knife fell out of the wheelchair when
the chair broke as a result of their struggle.
Ramires also denied sexually assaulting K.C., declaring repeatedly, “I
would never ever touch my daughter in that way.” He suggested that both girls
had lied because they wished to side with their mother against him, as they
supposedly always had in the past.
The jury sentenced Ramires to twenty-five years’ confinement. The trial
court rendered judgment accordingly, and this appeal followed.
III. DISCUSSION
A. Jury Argument
In his first issue, Ramires argues that the trial court reversibly erred by
overruling his objection to the prosecutor’s closing argument made at the guilt
innocence phase of trial. Specifically, Ramires argues that it was improper jury
argument for the prosecutor to claim that “[t]here’s no broken wheelchair.” The
State contends that this was a proper summation of the evidence adduced at
trial. We agree with the State.
During its case-in-chief, the State presented the testimony of Deputy
Pamela Smith, a crime scene investigator with the Tarrant County Sheriff’s
Department. Smith testified that as part of her investigation of the transport
8
event, she took “numerous photographs” of Ramires’s injuries and the van in
which the assault occurred. On cross-examination, defense counsel asked
Smith: “Why didn’t you take pictures of the broken wheelchair that was in the
back of the van? Did you notice . . . .” After the court overruled the State’s
objection, defense counsel repeated the question, and Smith responded, “I don’t
know what you’re talking about.” Defense counsel then asked, “Did you notice if
it was broken at all?” Smith replied, “No.” As the State points out, no other
witness testified about a broken wheelchair, either on direct or cross
examination.
At closing argument at the guilt-innocence phase, during its rebuttal, and
after addressing the State’s theory of the case, the prosecutor made the following
statement,
I want to remind you that the things the Defense says are not evidence. Okay. The evidence that you’ve heard is the testimony, the exhibits, the items that have been admitted into evidence and all the testimony. One example of that. Defense asked Officer Smith, did you get a photo of the broken wheelchair? She says, I have no idea what you’re talking about. There’s no broken wheelchair.

Defense counsel objected. The trial court overruled the objection, and the
prosecutor continued,
There was not one piece of evidence in front of you that that wheelchair was broken. Okay. That is not evidence. That was part of his question. That’s not a piece of evidence. These are extremely skilled Defense attorneys. They know what they’re doing. . . They’ve crafted their questions in a way to make the points that they’re trying to make, but that is not evidence.

9
We review a trial court’s ruling on an objection asserting improper jury
argument for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex.
Crim. App. 2004); Whitney v. State, 396 S.W.3d 696, 703–04 (Tex. App.—Fort
Worth 2013, pet. ref’d). A trial court does not abuse its discretion unless its ruling
is arbitrary and unreasonable—the mere fact that a reviewing court may have
decided the matter differently does not demonstrate an abuse of discretion.
Foster v. State, 180 S.W.3d 248, 250 (Tex. App.—Fort Worth 2005, pet. ref’d).
When examining challenges to jury argument, the reviewing court should
consider the remark in the context in which it appears. Jackson v. State, 17
S.W.3d 664, 675 (Tex. Crim. App. 2000).
The purpose of closing argument is to facilitate the jury’s proper analysis of
the evidence presented at trial in order to arrive at a just and reasonable
conclusion based solely on the evidence. Harris v. State, 122 S.W.3d 871, 883
(Tex. App.—Fort Worth 2003, pets. ref’d). Permissible jury argument generally
falls into one of four areas: (1) summation of the evidence, (2) reasonable
deduction from the evidence, (3) an answer to the argument of opposing counsel,
or (4) a plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex.
Crim. App. 2010), cert. denied, 565 U.S. 830 (2011). In summarizing the
evidence, the State is entitled to argue that the jury should not be concerned with
evidence not presented at trial. See Harris, 122 S.W.3d at 884–85 (“The
comment was merely a summation of the evidence presented at trial, coupled
10
with an argument that the jury should not be concerned with evidence not
presented at trial.”).
Here, the trial court did not abuse its discretion because the jury would not
have misunderstood the prosecutor’s remark to suggest that Smith had actually
denied that a broken wheelchair existed. Instead, the prosecutor’s argument was
a statement to the jury that it should not be concerned with evidence not
presented at trial. Indeed, the prosecutor made it clear what her argument was
after the trial court overruled defense counsel’s objection when she stated,
“There was not one piece of evidence in front of you that that wheelchair was
broken.” Moreover, the complained-of statement was preceded by the
prosecutor’s remark that “the things the Defense says are not evidence.”
The prosecutor’s observations before the remark that “the things the
Defense says are not evidence,” coupled with her emphasis after the comment
that characterization of the wheelchair as “broken” was “not evidence” but “part of
[defense counsel’s] question,” made it plain that the prosecutor was making a
reasonable summation of Smith’s expressed incomprehension that a broken
wheelchair existed and the lack of evidence that the wheelchair had been
damaged. See Harris, 122 S.W.3d at 884–85. We overrule Ramires’s first issue.
B. Defense’s Opening Statement
In his second issue, Ramires argues that the trial court erred by sustaining
the State’s objection to, and instructing the jury to disregard part of, defense
counsel’s opening statement made at the punishment hearing. We disagree.
11
We review a trial court’s rulings on opening statements for an abuse of
discretion. See Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006,
no pet.). It is an abuse of discretion only if the trial court’s ruling is outside the
“zone of reasonable disagreement.” Id. (quoting Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). A trial court’s ruling
should be upheld so long as it is correct under any valid legal theory, regardless
of whether the reason was argued before the court. See Miller v. State, 393
S.W.3d 255, 263 (Tex. Crim. App. 2012).
An opening statement in which a party engages in jury argument, rather
than stating to the jury the nature of issues and the evidence that the party
expects to be produced, is improper. See Hullaby v. State, 911 S.W.2d 921, 927
(Tex. App.—Fort Worth 1995, pet. ref’d).
Here, prior to trial, the State filed a motion in limine which in part requested
that the parties “not [] mention, refer to . . . or bring to the attention of the jury . . .
without first approaching the bench and obtaining a ruling on [the] admissibility”
of “the decision making process of the District Attorney’s Office as to which of the
Defendant’s criminal cases to proceed to trial on first, as such would be
speculation and/or hearsay on the part of any witness, and not relevant to issues
to be decided by the jury.” Ramires did not object to this request. And the court
granted the motion.
During opening statement at the punishment phase, defense counsel
pointed out to the jury that Ramires was facing several additional charges,
12
including continuous sexual assault of a child and evading arrest, as well as
punishment for the offense for which he had just been convicted. Defense
counsel then stated, “And so I want you to stop and think, why did they proceed
the way that they did. Why did they proceed --.” The State objected that the
remark constituted “a violation of the Court’s prior order.” After sustaining the
State’s objection, the court, at the request of the prosecutor, instructed the jury to
disregard “that last comment.”
We cannot conclude that the trial court abused its discretion in this case.
Contrary to the court’s order, defense counsel seemed to have specifically urged
the jury to speculate about why the prosecution may have brought the present
charge to trial before two older cases, without first obtaining the court’s
permission. It is within the zone of reasonable disagreement whether defense
counsel’s statement to the jury violated the motion in limine and whether it
constituted an improper opening statement. And one of the remedies available
to a trial court in its discretion in conducting trial is to sustain an objection and
instruct the jury to disregard a comment. See Lusk v. State, 82 S.W.3d 57, 63
(Tex. App.—Amarillo 2002, pet ref’d) (“The trial court’s remedy of instructing the
jury to disregard the testimony objected to . . . was one of the broad range of
remedies available to the trial court in exercising its discretion as to conduct of
the trial.”). Moreover, it was incumbent upon Ramires to explain why the
complained-of statement needed to be before the jury, and he failed to do so.
13
Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). We overrule
Ramires’s second issue.
C. The State’s Hearsay Objections
In his third issue, Ramires argues that the trial court abused its discretion
by sustaining the State’s hearsay objections to defense counsel’s cross
examination of K.C. We disagree.
During cross-examination, defense counsel sought to admit two exhibits
that purportedly were photographs taken of K.C.’s texting screen from her phone.
Defense counsel asked, and the trial court granted, that these exhibits be
admitted for record purposes only. Afterwards, Defense counsel asked K.C.
about the text messages. After K.C. acknowledged that she had sent some but
not all of the text messages that appear in these two exhibits, defense counsel
asked what was meant by the text, “You are going to get it for what you did to my
sister”—a text that does not appear on the face of either exhibit. The State
objected that this statement was hearsay. The trial court sustained the objection.
Defense counsel then argued that the statement was admissible as a statement
by a party opponent, which the trial court also rejected.
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard—we will not reverse a decision if it is within the
zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex.
Crim. App. 2011). We must uphold the trial court’s decision if it is reasonably
14
supported by the record and correct under any theory of law applicable to the
case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Here, as the State points out, the text that defense counsel referred to is
not a part of either exhibit. Furthermore, the exhibits were not admissible
evidence because they had only been admitted for record purposes. Moreover,
defense counsel never asked K.C. if she had made or sent the objected-to
statement in a text, and she never testified that she had; thus, the statement had
never been authenticated. See Tienda v. State, 358 S.W.3d 633, 638 (Tex.
Crim. App. 2012) (“Evidence has no relevance if it is not authentically what its
proponent claims it to be.”). We conclude and hold that the trial court did not
abuse its discretion by sustaining the State’s objection to the statement. We
overrule Ramires’s third issue.
D. Examination Nurse Reading Her Notes Regarding K.C.
In his fourth issue, Ramires argues that the trial court reversibly erred
during the punishment phase by permitting the nurse examiner “to read aloud”
K.C.’s statements made to the nurse examiner during examination. We
disagree.
As previously stated, we review a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard—we will not reverse a decision if
it is within the zone of reasonable disagreement. Tillman, 354 S.W.3d at 435.
Generally, hearsay is inadmissible. Tex. R. Evid. 801(d). But an exception
is made to the hearsay rule for statements “made for--and [] reasonably pertinent
15
to--medical diagnosis or treatment; and [describing] medical history; past or
present symptoms or sensations; their inception; or their general cause.” Tex. R.
Evid. 803(4). This exception has been applied to admit statements by child
victims of sexual assault to medical care providers regarding the source of their
injuries. See Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999,
pet. ref’d); see also Houston v. State, No. 04-07-00256-CR, 2008 WL 2434126,
at *1 (Tex. App.—San Antonio June 18, 2008, pet. ref’d) (mem. op., not
designated for publication). And a trial court does not abuse its discretion by
allowing a medical care provider to read her detailed notes taken during a sexual
assault examination. Fuller v. State, No. 04-08-00446-CR, 2009 WL 2045298, at
*1 (Tex. App.—San Antonio July 15, 2009, pet ref’d) (mem. op., not designated
for publication).
Here, the nurse examiner testified that she had elicited K.C.’s statement
about her sexual abuse because “it help[ed her] know what [she] need[ed] to look
for as far as what . . .to test for based on the contact that the child describe[d].”
Specifically, the nurse examiner averred that an account of the abuse helped her
know what she needed to look for in her “head-to-toe exam” and to know whether
to “test for and treat any sexually transmitted diseases.” She also testified that
she explained the purpose of the interview to K.C. before it began. The nurse
examiner further informed the jury that she created a report every time she
performed a sexual assault examination in order to “document” her “interaction
with the child.” The State thus established that K.C.’s statement describing her
16
history of sexual assault was admissible under Rule 803(4) as a statement for
the purposes of medical diagnosis or treatment. Tex. R. Evid. 803(4). Thus, the
trial court did not abuse its discretion by allowing the nurse examiner to read her
detailed notes and therefore did not err by overruling Ramires’s objection. See
Fuller, No. 04-08-00446-CR, 2009 WL 2045298, at *1. We overrule Ramires’s
fourth issue.
E. Ramires’s Nonresponsive Answer
In his fifth issue, Ramires argues that the trial court reversibly erred by
sustaining the State’s objection to, and instructing the jury to disregard, one of his
answers made to defense counsel during direct examination at the punishment
phase of trial. Specifically, defense counsel asked Ramires, “Do you feel that
[K.C.] maybe -- and without getting into anything that was said -- kind of
instigat[ed] things at times?” Ramires responded, “I think this last situation,
[K.C.] was pregnant with [her mother’s boyfriend’s] baby, which was a sexual
offender that I called and turned in.” The State objected that his answer was
“nonresponsive and outside the record.” The trial court sustained the objection
and instructed the jury to disregard the answer.
Again, we review a trial court’s decision to admit or exclude evidence
under an abuse of discretion standard—we will not reverse a decision if it is
within the zone of reasonable disagreement. Tillman, 354 S.W.3d at 435. And a
trial court may properly instruct the jury to disregard a witness's nonresponsive
answer. See Morgan v. State, 515 S.W.2d 278, 281 (Tex. Crim. App. 1974)
17
(stating that when a witness's answer is “nonresponsive,” it can be “cured by a
proper objection and motion that the jury be instructed to disregard”).
Here, Ramires’s response to defense counsel’s question whether K.C.
instigated things was nonresponsive. Indeed, there is no connection between
whether K.C.’s mother’s ex-boyfriend is a sexual offender that Ramires “called
and turned in” and the inquiry of whether K.C. is an instigator. Thus, the trial
court did not abuse its discretion by sustaining the State’s objection and
instructing the jury to disregard the answer. See Morgan, 515 S.W.2d at 281.
We overrule Ramires’s fifth issue.
F. Ramires’s Right to Counsel
In his sixth issue, Ramires argues that the trial court abused its discretion
and denied him his right to counsel by instructing the jury to disregard part of
defense counsel’s closing argument at punishment. We disagree.
During closing argument at punishment, defense counsel stated that “the
State wants you to use the information that they proved up to you in punishment
to taint your sentence.” The State objected to this, and the trial court instructed
the jury to “refer to the same part of the Court’s Charge that I referred you to
previously.” The State then asked the trial court to instruct the jury to disregard
defense counsel’s statement, which the trial court did.
A trial court “is vested with a large discretion” in the latitude it may allow
counsel for argument, and should be reversed “only . . . when obviously abused.”
Eckert v. State, 672 S.W.2d 600, 603 (Tex. App.—Austin 1984, pet. ref’d).
18
It is well settled that both the State and the accused are entitled to discuss
facts admitted into evidence and to give reasonable explanations of the law. See
id. Neither party, however, may accuse opposing counsel of bad faith or
insincerity. See Fuentes v. State, 664 S.W.2d 333, 335–36 (Tex. Crim. App.
[Panel Op.] 1984) (reasoning that prosecutor improperly accused defense
counsel of “bad faith and insincerity”); see also Barker v. State, 931 S.W.2d 344,
348 (Tex. App.—Fort Worth 1996, pet. ref’d) (explaining that rules of closing
argument apply to both parties).
Here, the trial court could have concluded that defense counsel’s comment
was disparaging and accusing the State of bad faith and insincerity. We cannot
conclude that the trial court’s discretion was “obviously abused” by sustaining the
State’s objection to the statement and by instructing the jury to disregard it. See
Eckert, 672 S.W.2d at 603. We overrule Ramires’s sixth issue.
G. Cumulative Effect of First Six Alleged Errors
In his seventh issue, Ramires contends that, cumulatively, errors one
through six were so great that they demand a reversal. Though it is possible for
a number of errors to cumulatively rise to the point where they become harmful,
the court of criminal appeals has stated that it has never found that “non-errors
may in their cumulative effect cause error.” Gamboa v. State, 296 S.W.3d 574,
585 (Tex. Crim. App. 2009). Because we have concluded that the trial court did
not err in Ramires’s first through sixth alleged errors, their cumulative effect is not
error as well. See id. We overrule Ramires’s seventh issue.

Outcome: Having overruled all seven of Ramires’s issues on appeal, we affirm the
trial court’s judgment.

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