Felipe Ramos, Jr. v. The State of Texas--Appeal from 194th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

FELIPE RAMOS, JR., )

) No. 08-05-00037-CR

Appellant, )

) Appeal from the

v. )

) 194th District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0176238-RM)

)

O P I N I O N

Felipe Ramos, Jr. appeals from an adjudication of guilt for the offense of aggravated sexual assault of a child. The court assessed punishment at 20 years. Appellant seeks to have his conviction reversed because he received ineffective assistance of counsel. We affirm

In February 2002, Appellant was indicted for aggravated sexual assault of a child. He waived his right to a trial by jury and pled guilty to the offense. The trial court deferred a finding of guilt and placed him on community supervision for eight years and assessed a fine of $1,500. In February 2004, the State filed a motion to revoke probation and proceed with an adjudication of guilt alleging that Appellant had violated certain terms of his community supervision by: (1) failing to make payments towards his urinalysis fees resulting in an $80 delinquency; (2) failing to pay supervision fees resulting in a delinquency of $170; (3) failing to successfully complete a sex offender treatment program; and (4) having contact with children 17 years of age or younger. A hearing was conducted and Appellant entered a plea of true. The trial court took judicial notice of the State=s exhibit, Appellant=s signed, written, voluntary plea of true, stipulation of evidence, and the contents of the trial court=s file. After testimony was presented, the trial court found that the allegations contained in the State=s motion were true and proceeded to an adjudication of guilt. The trial court then sentenced Appellant to twenty years in the Institutional Division of the Texas Department of Criminal Justice.

Standard of Review

In his sole issue, Appellant alleges that he was denied effective assistance of counsel because his trial attorney did not object to the failure of the trial court to conduct a separate punishment hearing or offer any testimony in mitigation of punishment. We review claims of ineffective assistance of counsel under the two prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To prevail on an ineffective assistance claim, the appellant must first show that counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687 88, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In addition, the appellant must show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

In reviewing claims of ineffective assistance, we indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To prevail on a claim for ineffective assistance of counsel, the appellant must rebut the presumption that the challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. When the record is silent, this Court will not speculate as to the reasons for trial counsel=s actions. See Jackson, 877 S.W.2d at 771. Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Bradley v. State, 960 S.W.2d 791, 804 (Tex.App. El Paso 1997, pet. ref=d).

Initially, we note that Appellant did file a motion for new trial, but did not challenge the alleged ineffectiveness of his counsel. In the majority of instances, the appellant cannot rebut the presumption of reasonable assistance because the record on direct appeal is simply undeveloped and does not adequately reflect the failings of trial counsel. Thompson, 9 S.W.3d at 813 14. A silent record that provides no explanation for counsel=s actions will not ordinarily overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 11 (Tex.Crim.App. 2003).

Appellant contends that he was denied effective assistance of counsel as a result of: (1) his trial attorney=s failure to object when the trial court did not conduct a separate punishment hearing; and (2) failing to present any mitigation testimony. First, we disagree with Appellant=s position that a defendant is always entitled to a separate punishment hearing after adjudication of guilt. We do agree that the trial court must allow the defendant the opportunity to present evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). However, all that is required is that a defendant be given an opportunity at some stage of the proceedings to present evidence, not that he be afforded a separate hearing in which to do so. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999); see also Hardeman v. State, 1 S.W.3d 689, 690 91 (Tex.Crim.App. 1999)(holding that Issa requires only that the defendant have the opportunity to present evidence in mitigation of punishment if not afforded same during adjudication).

In addition, we disagree that Appellant=s counsel failed to present any mitigation testimony to the trial court. Trial counsel began by calling Appellant=s probation officer to testify. Although the probation officer=s testimony could hardly be described as favorable to Appellant, he did admit on redirect examination that Appellant had been Areporting the entire time he=s been on probation.@ Appellant then testified on his own behalf. He testified that he had been making payments toward his probation fees, at least as much as he was able to afford, and that there was a small balance due. Appellant also testified that in addition to probation fees, he had Ato pay 360 hours of community service. I pay fines for $1,700, and I pay all my family back about $4,800 so I can be outside on probation.@ He also informed the trial court that he was supporting his wife and eight-month-old child. Appellant indicated that he was working approximately forty hours a week as a landscaper for his uncle and earned about $325 dollars a week.

Appellant also testified that in 2002, he had attended approximately thirty-three counseling sessions with his doctor and that each session had cost him about $30. Counsel for Appellant introduced records into evidence showing that he had indeed attended those

thirty-three sessions. Appellant then testified that in 2003, he had attended approximately fifty sessions of counseling. Appellant also stated that in 2004, he had already attended six additional sessions of counseling. Appellant informed the court that he had paid about $2,700 dollars to his counselor.

Appellant also asked that the trial court place him back on probation. When his trial counsel asked Appellant why he thought the judge should give him another chance, he stated that AI need a second chance to prove to you that I will be able to complete the probation by myself.@ Appellant told the trial court that his family depended on him for support. Appellant agreed that even if the judge were to continue probation and place additional restrictions on him, he would be able to comply. Appellant also agreed that if the judge were to order him to wear an electronic monitor or move to a location where no children were present, he would fully comply.

During the State=s cross-examination of Appellant, he testified that he had Achanged a lot with the therapy@ and that he was no longer attracted to young girls. Appellant did admit that he needed further therapy and stated that if the judge would Aallow me to finish with the therapy, I will finish like I was working with that before.@ Appellant also stated that he was confident that he would not touch another girl in the future.

Trial counsel then called Appellant=s uncle as a witness. Appellant=s uncle testified that Appellant worked with him doing landscape work. He told the court that Appellant had been working with him since he first got out of jail. Appellant=s uncle testified that Appellant worked from between seven to eleven hours a week, depending upon how well the work was going. He also told the court that if Appellant were placed back on probation, he would have plenty of work to do. Appellant=s uncle further testified that while at work, he would have no contact with children and that he would watch Appellant and could assure the court that Appellant would have no contact with any children.

We conclude that Appellant was clearly afforded an opportunity to present evidence in mitigation of punishment during the proceedings. Further, after assessing punishment at twenty years in the Institutional Division of the Texas Department of Criminal Justice but prior to orally pronouncing sentence, the trial court gave Appellant an additional opportunity to respond. The trial court asked Appellant A[i]s there any reason in law why you should not be sentenced today?@ To which Appellant=s trial counsel responded A[n]o your honor.@ Appellant remained silent.

Given that Appellant was provided with an opportunity to present evidence in mitigation of punishment, there was no grounds for trial counsel to object. We, therefore, conclude that Appellant has failed to show trial counsel=s performance fell below an objective standard of reasonableness. We need not address both components of the inquiry if the defendant makes an insufficient showing on one component of the Strickland analysis. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Mallett v. State, 65 S.W.3d 59, 68 (Tex.Crim.App. 2001). Accordingly, Appellant has not met his burden of establishing that his counsel was ineffective. Issue One is overruled.

Accordingly, we affirm the trial court=s judgment.

April 6, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)