JUAN RAMON RAMOS v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-01-135-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B  EDINBURG

JUAN RAMON RAMOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez and Baird[1]

  Opinion by Justice Baird

Appellant was charged by indictment with the offense of aggravated robbery. A jury convicted appellant of the charged offense and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice--Institutional Division. Appellant raises three points of error. We affirm.

I. Ineffective Assistance of Counsel.

The first and second points of error contend trial counsel=s conduct was both deficient and prejudicial, and, therefore, violated appellant=s rights to effective assistance of counsel guaranteed under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. Because the same standard is employed to evaluate such claims under both constitutions, Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986), we will address these points of error jointly.

A. Standard of Appellate Review.

The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Texas Constitution. The well known two prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel=s representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. If counsel=s performance was deficient, the reviewing court must decide whether there is a Areasonable probability@ the result of the trial would have been different but for counsel=s deficient performance. Id. A reasonable probability is a Aprobability sufficient to undermine confidence in the outcome.@ Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Riascos v. State, 792 S.W.2d 754, 758 (Tex. App.BHouston [14th Dist.] 1990, pet. ref'd). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App.BSan Antonio 1991, pet. ref'd). When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Generally, the trial record will not be sufficient to establish an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). This is true because normally, a silent record cannot rebut the presumption that counsel=s performance was the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). However, a defendant may rebut the presumption by providing a record from which the appellate court may determine that trial counsel=s conduct was not based upon a strategic or tactical decision. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). This record may be provided via a motion for new trial hearing. Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000). There was no such hearing in the instant case.[2]

B. Argument and Analysis.

Appellant argues trial counsel=s performance was deficient in several respects. We will address these arguments seriatim.

 i. Failure to Suppress Evidence.

Prior to trial, appellant moved to suppress certain items seized following the stop and search of a vehicle. The parties agreed this motion would be carried along with the trial on the merits. Subsequently during trial, the trial judge overruled the motion outside the presence of the jury. When the State later moved to admit those items into evidence before the jury, defense counsel stated, Ano objection.@ Appellant now contends trial counsel was ineffective in failing to object when the items were admitted into evidence. App. br. pg. 3.

Initially, we note that trial counsel waived any error stemming from the denial of the motion to suppress by affirmatively stating, Ano objection.@ Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (A[w]hen an accused affirmatively asserts during trial that he has >no objection= to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling.@). However, when the failure to preserve error is raised as the basis for an ineffective assistance of counsel claim, that claim has merit only if the error would have required reversal. This is so because it is not ineffective assistance of counsel when an attorney fails to preserve error which would not have resulted in reversal. Matthews v. State, 960 S.W.2d 750, 753 (Tex. App.BTyler 1997, no pet.). In the instant case, appellant does not argue that the trial judge erred in denying the motion to suppress. Therefore, we are unable to hold the failure to preserve the suppression issue for appellate review meets the first prong of Strickland.

ii. Voir Dire.

The second argument under these points is that trial counsel failed to object when the State used Aan improper hypothetical scenario and then committ[ed] some of the venire members to that scenario.@ App. br. pg. 4. Our law is well-settled that an attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997). Our law is equally well-settled that when the record is silent as to counsel's trial strategy, we cannot speculate about why counsel acted as he did. Jackson, 877 S.W.2d at 771. Voir dire is a joint process whereby the parties learn the venire members= views simultaneously. Therefore, even when one party asks an objectionable question, the other party may not wish to object in order to learn the views of the venire members on that topic. This is perhaps the scenario presented in the instant case. We cannot hold as appellant wishes without engaging in speculation as to why trial counsel failed to object. This we refuse to do.

iii. Gang Membership.

The next two arguments relate to evidence admitted at the punishment phase of appellant=s trial. Appellant initially contends trial counsel was ineffective for failing to object to a letter written by appellant wherein he admitted using marijuana and being a gang member. The latter argument relates to evidence which connected appellant to a gang.

Following his arrest, appellant began exchanging letters with a young female. The letters written by appellant were admitted into evidence without objection. In one of the letters, appellant admitted to being Ain a gang@ and smoking Afat primos and blunts.@[3] Appellant argues counsel was deficient for not requesting a A404 (b) or 403 hearing or limiting instruction.@ App. br. pg. 6.

Article 37.07, section 3 (a)(1) of the code of criminal procedure specifically provides that the State may offer Aevidence of an extraneous crime or bad act@ Anotwithstanding Rules 404 and 405, Texas Rules of Evidence.@ Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Supp. 2002). Because trial counsel could not have successfully lodged a 404(b) objection, he was not deficient for failing to make such an objection. Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.BHouston [14th Dist.] 1999, pet. ref'd) (ATrial counsel is not ineffective for failure to make meritless objections.@).

Rule 403 of the Texas Rules of Evidence favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Therefore, relevant evidence should be excluded only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Id. Although evidence of extraneous acts is always potentially prejudicial, three factors palliate any prejudicial effect. Johnson v. State, 988 S.W.2d 958, 960-61 (Tex. App.BBeaumont 1999, no pet.). First, the evidence is not patently inflammatory; second, appellant does not dispute engaging in the complained of conduct; and, third, the evidence assists the jury in assessing a proper punishment. Therefore, we hold the trial judge's determination that the evidence was more probative than prejudicial was clearly within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990) (op. on reh'g). Therefore, even if trial counsel had lodged a Rule 403 objection, the trial judge would not have abused his discretion in overruling it.

We now turn to appellant=s argument that counsel was ineffective in permitting a State=s witness to Aconnect@ appellant to the Latin Kings gang. As noted above, appellant personally admitted in his letters to being in a gang. Additionally, Port Lavaca Police Officer Eric Daniel Hart, who had special training and experience with gangs, testified that one of appellant=s letters contained a drawing and the words ALatin King for life.@ Hart described the Latin Kings as a criminal organization that engaged in drug deals, assaults, weapons offenses, burglaries, and other criminal enterprises as a way of earning money. Hart concluded his testimony by stating that an individual who used the drawing and wording as did appellant in his letter was a Latin King member. This type of evidence is admissible. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995) (gang membership relevant to character and admissible); Manley v. State, 28 S.W.3d 170, 174 (Tex. App.BTexarkana 2000, pet. ref'd). Therefore, trial counsel was not deficient for not objecting to this testimony.

iv. Photographic Lineup.

The final argument advanced by appellant in these two points of error is that counsel was deficient in failing to object to a photographic lineup which contained a photograph of appellant. This lineup was made in connection with an extraneous robbery. Appellant argues trial counsel was deficient for failing Ato request a 404(b) and 403 hearing and limiting instructions.@ For the reasons stated in part iii, supra, we must reject this argument.

 v. Totality of Circumstances.

Appellant argues the totality of these claimed errors committed by trial counsel are sufficient both individually and in combination to have rendered the fact-finding process unreliable. App. br. pg. 10. Appellant is accurate that in reviewing an ineffective assistance of counsel claim, we consider the totality of the representation and the totality of circumstances of each case. Thompson, 9 S.W.3d at 813; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). However, our analysis reveals that trial counsel=s performance was not deficient in any single respect. Therefore, the cumulative effect of that performance cannot result in a finding of ineffectiveness.

For these reasons, points of error one and two are overruled.

II. Denial of Motion for Continuance.

The third and final point of error contends the trial judge erred in denying appellant=s motion for continuance. This case was called for trial on January 15, 2001. That morning, trial counsel filed a motion for continuance. At the hearing on that motion, trial counsel stated he needed the continuance to secure the presence of Julianna Zamora. The motion states Zamora=s subpoena had been returned unserved, that trial counsel had spoken to Zamora the previous day in an attempt to secure her voluntary appearance, that Zamora was seventeen years of age and her parents would not let her testify, that Zamora would be a punishment witness who would testify that appellant had always been nice and respectful. The trial judge denied the motion.

We review a trial judge's ruling on a motion for continuance under an abuse of discretion standard. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995); Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App.1992) (decision to grant or deny motion for continuance falls within sound discretion of trial judge). To obtain a continuance because of a missing witness, the defendant must show, among other things, he exercised due diligence to secure the witness' presence. Tex. Code Crim. Proc. Ann. art. 29.06(2) (Vernon 1989). A trial judge does not abuse his discretion in denying a motion for continuance if the defendant fails to apply for process of a witness or does so a day or two before his trial. Peoples v. State, 477 S.W.2d 889, 891 (Tex. Crim. App. 1972) (AIf a defendant does not apply for process of a witness until a day or two before his trial, he has failed to exercise the due diligence which is necessary to support a motion for continuance."). In the instant case, there is no showing of when trial counsel requested the subpoena for Zamora. However, the motion states he talked to her the day before trial was to commence. Additionally, the record does not show that trial counsel took any action to secure Zamora=s presence for the punishment phase of trial which did not begin until January 17, 2001. Accordingly, we cannot hold that the trial judge abused his discretion in denying the motion for continuance.[4] The third point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

20th day of June, 2002.

[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] Appellant filed a motion for new trial and scheduled that motion for a hearing. However, appellate counsel later withdrew that motion Aafter a discovery conference with the attorneys for State,@ and asked that the Aappeal proceed directly on defendant=s Notice of Appeal.@ That motion was granted by the trial judge.

[3] Primos and blunts refer to marihuana cigarettes.

[4] We pause to note that the State, in opposing the motion, argued the testimony of Zamora would have been inadmissible. However, the plain language of article 37.03, section 3(a)(1) specifically provides for the admission of evidence on Aany matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, ...@ Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Supp. 2002). Under this plain language, the testimony of Zamora appears to have been admissible.