RAMIRO RAMIREZ MARTINEZ v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang–Miers

Ramiro Ramirez Martinez appeals his convictions for aggravated sexual assault of a child and indecency with a child by contact.¹  The trial court assessed punishment at 25 years' confinement in the Institutional Division of the Texas Department of Criminal Justice in the sexual assault cases and 5 years' confinement in the indecency cases.   In two issues, appellant contends that the judgments should be modified to correct the name of the presiding judge and that his counsel rendered ineffective assistance.   For the following reasons, we modify the judgments and affirm as modified.   Because all dispositive issues are settled in law, we issue this memorandum opinion.   Tex.R.App. P. 47.2(a), 47.4.

Appellant does not complain about the sufficiency of the evidence.   As a result, we provide a general background of the evidence presented and include details only as necessary for resolution of the issues.   J.H., appellant's stepdaughter, testified that when she was about seven or eight years old,² she, her sister, and appellant were playing at the pool in the apartment complex where they lived.   Appellant drank about four beers.   After J.H. went to bed in her upstairs bedroom, she woke up on the couch downstairs.   She did not know how she got downstairs.   Appellant was sitting there and told her to go back to sleep.   She closed her eyes, but did not go to sleep.   She testified that appellant kissed her breasts, pulled her pants down, and licked her “part” where she “goes pee.”   Then he pulled her pants back up, reached through the bottom of her pants leg with his hand, and touched her on that “part.”   She said it felt like he was using more than one finger and was “stretching” that “part” with his fingers.   She said “it really hurt.”   She said she was confused and terrified.   She said she told appellant she wanted to go back to bed, and appellant took her upstairs.   She said she cried and prayed about what to do.   The next day, she told her mother about what happened.   Her mother called their pastor.   She asked appellant why he did that to J.H. and he said, “No, no, I did not do anything.   I don't remember.   I drank a lot and I don't remember but if I have something to pay, I am going to accept. it.”

In issue one, appellant argues, and the State concedes, that the judgments reflect the wrong name of the presiding judge.   Because we have the necessary information to modify the judgments, we modify the judgments to delete “Hon. Curt B. Henderson” from “Judge Presiding” and insert “Hon. James Fry.” See French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992) (citing Asberry v. State, 813 S.W.2d 526, 529–31 (Tex.App.—Dallas 1991, pet. ref'd)).   We resolve issue one in appellant's favor.

In issue two, appellant argues that he received ineffective assistance of counsel during the guilt/innocence phase of trial because his counsel did not communicate with him adequately prior to trial, did not conduct his own investigation of the case, and conceded in closing arguments that all of the evidence presented by the State was true.

We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex.Crim.App.1986).   To obtain reversal based on ineffective assistance of counsel, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different.   See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005).   Failure to make the required showing defeats the ineffectiveness claim.   See Williams v. State, 301 S.W.3d 675, 687 (Tex.Crim.App.2009);  Andrews, 159 S.W.3d at 101.   Our review of counsel's performance is highly deferential and begins with the assumption that counsel's conduct fell within the wide range of reasonable professional assistance.   See Andrews, 159 S.W.3d at 101.   An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate that the claim has merit.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).

Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion.   Consequently, the record is silent as to the reasons for counsel's actions.   Because a silent record provides no explanation for counsel's actions, the record on direct appeal is usually “not sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.”  Cannon v. State, 252 S.W.3d 342, 349 (Tex.Crim.App.2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002));  Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).   Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent.  Rylander, 101 S.W.3d at 111;  Bone, 77 S.W.3d at 836.   Consequently, the Texas Court of Criminal Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more appropriate vehicle to raise claims of ineffective assistance of counsel.   See, e.g., Rylander, 101 S.W.3d at 110.

Appellant argues, however, that this is one of those rare cases in which the record on direct appeal is sufficient for an appellate court to make a decision on the merits.   See Cannon, 252 S.W.3d at 349–50.   We disagree.

Appellant cites a pretrial hearing to support his argument that counsel was ineffective because he failed to consult and communicate with appellant and did not conduct an independent investigation of the facts prior to trial.   But the record shows that counsel visited appellant in jail, communicated plea offers to appellant, reviewed the State's file, reviewed the evidence, and announced ready for trial.   The record is silent with regard to any independent investigation counsel may have done, and appellant does not argue what he thinks counsel should have investigated but did not.

Appellant also cites counsel's closing argument to support his contention that counsel was ineffective.   Appellant argues that counsel conceded that the State's evidence was true.   But considering the totality of the circumstances, counsel presented alternative defenses at trial—that the incident did not happen, but if the incident happened, appellant was not the perpetrator.   At one point in the closing argument, counsel argued “Let us assume that every word that she said up here is the truth.   She didn't see the guy, the perpetrator ․ If we take that extreme, ․ [appellant is] innocent by her own words․”  Then he asked the jury “to set aside the raw emotions” of the case and “[c]ome to a just finding of facts․”  He argued that “[the child] was up here telling you the truth,” but then he argued that her truth was not “factually accurate.”   He explained why by going through the evidence presented at trial and argued the evidence created a reasonable doubt.

Based on the totality of the record, we cannot conclude that appellant satisfied either prong of Strickland.   The record is silent as to counsel's reasons for his actions and the portions of the record cited by appellant do not support the conclusion that trial counsel's performance fell below an objective standard of reasonableness.   As a result, we cannot conclude that appellant has satisfied the first prong of Strickland.   See Freeman v. State, 125 S.W.3d 505, 506–07 (Tex.Crim.App.2003).   With regard to the second prong of Strickland, appellant argues that the result would have been different but for counsel's alleged errors, but he does not explain how it would have been different.   And in light of the record, especially the testimony of the child victim in this case, we cannot conclude that, but for the alleged deficiencies in counsel's performance, there is a reasonable probability that the result of the proceeding would have been different.   See Tex.Code Crim. Proc. Ann. art. 38.07(a) (West 2005) (stating that testimony of child victim alone is sufficient to support a conviction for aggravated sexual assault of a child and indecency with a child);  Tear v. State, 74 S.W.3d 555, 560 (Tex.App.—Dallas 2002, pet. ref'd) (same).   As a result, we cannot conclude that appellant has satisfied the second prong of Strickland.   We resolve appellant's second issue against him.

We modify the trial court's judgments and affirm as modified.

FOOTNOTES

FN1. The State filed one indictment with five counts:  two counts charged appellant with aggravated sexual assault of a child and three counts charged appellant with indecency with a child by contact.   The jury acquitted appellant of one of the indecency counts.   The trial court rendered two judgments in the case—one for the two counts of aggravated sexual assault of a child and one for the two counts of indecency with a child by contact.   There is one appeal for both judgments..  FN1. The State filed one indictment with five counts:  two counts charged appellant with aggravated sexual assault of a child and three counts charged appellant with indecency with a child by contact.   The jury acquitted appellant of one of the indecency counts.   The trial court rendered two judgments in the case—one for the two counts of aggravated sexual assault of a child and one for the two counts of indecency with a child by contact.   There is one appeal for both judgments.

FN2. J.H. was ten years old when she testified at trial..  FN2. J.H. was ten years old when she testified at trial.

ELIZABETH LANG–MIERS JUSTICE