Jerod Yndalesio Ramirez v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00733-CR
Jerod Yndalesio RAMIREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-5086-A
Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 29, 2004

AFFIRMED

Jerod Yndalesio Ramirez appeals from his murder conviction and sentence of twenty-five years imprisonment. Ramirez asserts that his confrontation rights were violated and that he was denied effective assistance of counsel. We affirm the trial court's judgment.

Background

During the early morning hours of April 4, 2002, Ramirez received a phone call from Corina Michelle Lopez, a friend who danced at a local strip club. She told Ramirez that she had been sexually assaulted by Manuel Covarrubia. Ramirez and two of his friends went to Covarrubia's apartment, where a fight ensued. During the fight, Covarrubia was shot once, resulting in his death. Ramirez was subsequently convicted of Covarrubia's murder.

Analysis

In his first two issues, Ramirez asserts that his confrontation rights under the state and federal constitutions, and under the Texas Code of Criminal Procedure, were violated because the testimony of the investigating detective incorporated testimonial statements made by a non-testifying witness during a police interrogation. See U.S. Const. amend. VI, XIV; Tex Const. art. I, 10; Tex. Code Crim. Proc. Ann. arts. 1.05, 1.25 (Vernon 1977); see also Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1369-74 (2004). The State replies that Ramirez failed to preserve the two confrontation clause issues for appellate review. We agree.

During Detective Moffitt's testimony, counsel for Ramirez raised numerous hearsay objections to the prosecutor's questions concerning inconsistent versions of the alleged sexual assault given by Corina Michelle Lopez during her police interrogation. The trial court sustained the hearsay objections, and Detective Moffitt was not permitted to testify to the different versions given by Lopez. Detective Moffitt did testify to his opinion that Lopez was not being truthful based on inconsistencies in her story and her demeanor during the interview. He did not testify to the substance of Lopez's statements to him. During Moffitt's testimony, defense counsel never objected that Ramirez was being denied his right to confront Lopez as a witness, and did not raise any confrontation clause complaint with regard to Moffitt's testimony. Before the State concluded its case in chief, Ramirez's counsel requested and was granted a writ of attachment for Lopez. (1) When Lopez had not appeared by the next day, counsel for Ramirez moved for a continuance based on her absence, claiming she was a material defense witness; the continuance was denied. (2) At no time did counsel argue that Ramirez's confrontation rights were being denied by proceeding without Lopez's presence. In fact, Ramirez's counsel did not assert a violation of his confrontation rights at any time during the trial.

Generally, in order to preserve an issue for appellate review, an appellant must make a specific objection to the trial court at the time the alleged error arises and must obtain a ruling on the objection. Tex. R. App. P. 33.1(a); see Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004) (en banc). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez, 138 S.W.3d at 342. Most constitutional claims, except for those few that have been labeled systemic or that must be expressly waived, may be forfeited through failure to comply with Rule 33.1(a). Id. at 340. A defendant's constitutional right to confront the witnesses against him is not the type of law that the trial court is required to follow regardless of the defendant's wishes, i.e., a systemic requirement, or the type of right that must be implemented unless expressly waived, i.e., a waivable right. See id. Therefore, the right to confrontation is forfeited by failure to lodge a timely, specific objection in the trial court. See Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).

Ramirez argues, without citing any authority, that the hearsay objections during Moffitt's testimony, combined with the writ of attachment for Lopez and motion for continuance based on her absence as a material defense witness, were sufficient to preserve his confrontation claims for appeal. It is well established that an issue raised on appeal must correspond to the precise objection made in the trial court. Willis v. State, 785 S.W.2d 378, 382-83 (Tex. Crim. App. 1989). A hearsay objection does not preserve error on confrontation clause grounds. Paredes, 129 S.W.3d at 535. Accordingly, we hold Ramirez did not preserve his confrontation claims and we overrule his first two issues.

In his third issue, Ramirez asserts he received ineffective assistance of counsel because his attorney did not request a jury charge on sudden passion under 19.02(d) of the Texas Penal Code during the punishment phase of trial. See Tex. Pen. Code Ann. 19.02(d) (Vernon 2003). We hold that Ramirez has failed to establish ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984).

To establish ineffective assistance of counsel in a non-capital criminal trial, a defendant must prove by a preponderance of the evidence that: (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland, 466 U.S. at 687; see Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999) (en banc); see also Harling v. State, 899 S.W.2d 9, 12 (Tex. App.--San Antonio 1995, pet. ref'd). The Strickland standard applies to claims of ineffective assistance during both the guilt/innocence and punishment phases of trial. Hernandez, 988 S.W.2d at 771. To establish deficient performance, the first prong of the Strickland standard, Ramirez must show that his counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. The appellate court does not look at isolated acts or omissions to determine the effectiveness of counsel, but reviews the totality of the representation. Id.; Harling, 899 S.W.2d at 12.

The allegation of ineffective assistance based on failure to request a sudden passion instruction during punishment was not raised in Ramirez's motion for new trial, and no evidence was developed in support of the claim. While the trial evidence arguably raised the issue of sudden passion, the record is silent as to counsel's reasons for not requesting a sudden passion charge. (3) In the absence of a developed evidentiary record which adequately reflects the motives behind counsel's action and inaction, it is extremely difficult to prove that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (en banc). Absent record evidence to the contrary, we must presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-814 (record that is silent on trial counsel's reasons for particular action or inaction will rarely suffice to rebut presumption that decision was reasonable). To conclude that the representation by Ramirez's counsel was deficient without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. Without evidence in the record to both establish deficiency and rebut the presumption of reasonable assistance, Ramirez is unable to satisfy the first prong of Strickland. See id. at 814; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (en banc) (record on direct appeal is often particularly inadequate to reflect the failings of trial counsel when the errors complained of are errors of omission).

Failure to make the required showing of either Strickland prong, deficient performance or sufficient prejudice, will defeat a claim for ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. Because we hold that Ramirez has failed to establish deficient performance by his trial counsel, we overrule his third issue on appeal. (4)

Based on the foregoing reasons, we affirm the trial court's judgment.

Phylis J. Speedlin, Justice

Do not publish

1. Lopez was listed on the State's witness list and was under a State subpoena, but she did not appear as a State witness at trial. The prosecutor stated that the district attorney's office did not have a current address or phone number for Lopez, and had been unable to contact her since a co-defendant's trial several months earlier.

2. Ramirez does not raise the court's denial of his request for a continuance as a separate point of error on appeal.

3. The State argues on appeal that counsel's failure to request the instruction was reasonable trial strategy because a sudden passion instruction would have undermined Ramirez's testimony that he did not intend to injure or kill Covarrubia.

4. Our opinion does not preclude Ramirez from raising his ineffective assistance claim in an application for post-conviction writ of habeas corpus filed in the trial court. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004-05); see also Thompson, 9 S.W.3d at 814 (noting this would provide an opportunity for a dedicated hearing to consider the facts, circumstances and rationale behind trial counsel's actions).