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Ex Parte Ramsey

Court of Appeals of Texas, Fifth District, Dallas
Aug 23, 2004
No. 05-04-00763-CR (Tex. App. Aug. 23, 2004)

Opinion

No. 05-04-00763-CR

Opinion issued August 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-80991-03 (Hc) Affirmed.

Before Justices MOSELEY, BRIDGES, and LANG-MIERS.


OPINION


Andrew Bascome Ramsey appeals the order denying his application for writ of habeas corpus. After a jury convicted Ramsey of interference with child custody, the trial court assessed punishment at confinement for 180 days, probated for two years. Subsequently, Ramsey sought a writ of habeas corpus, alleging his conviction should be reversed because he did not receive the effective assistance of counsel at trial. Following a hearing, the trial court denied Ramsey the relief he sought and this appeal followed. We affirm. In a single issue, Ramsey contends trial counsel was ineffective by failing to (1) require the State to elect one of the six possible dates upon which it intended to rely for conviction; (2) object to evidence showing his ex-wife, Connie Doreen Schuster, was no-billed by the grand jury on charges of misconduct filed by Ramsey; and (3) call Gary and Nancy Chance, Ramsey's sister and brother-in-law, as fact witnesses. To prevail on his claim, Ramsey must show (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ramsey has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). With these standards in mind, we address each of Ramsey's complaints in turn. After reviewing the record, we conclude we need not determine whether counsel erred by failing to require the State to elect because Ramsey has failed to meet his burden to show the results of the proceeding would have been different if the State had elected one of the six possible dates. Schuster testified that she attempted to pick up her son for visitation on six separate weekends and that on two occasions Ramsey told her their son was not there. The next two times she attempted to pick up her son, Gary Chance told Schuster her son was not there. The final two times she attempted to pick up her son, there was no one home. According to Schuster, before each of her attempted visits, she left messages on either Ramsey's cellular telephone or the home telephone stating she was coming for visitation, and Ramsey never returned her calls. When police questioned Ramsey about Schuster's attempts to visit, Ramsey told the police he did not let her see their son because he "just didn't trust her." Thus, although Ramsey testified that he thought Schuster was attempting to obtain possession of their son, not attempting to enforce her visitation rights and that she had not notified him regarding her desire to visit with their son, the evidence is sufficient to show that Ramsey interfered with child custody on all six occasions and the jury could have convicted Ramsey for any one of the six dates. See Ramsey v. State, No. 05-02-00641-CR, slip op. at 3 (Tex. App.-Dallas 2003, pet. ref'd) (not designated for publication) (finding evidence factually sufficient to support appellant's conviction). Requiring the State to elect one incident would not have prevented evidence of the remaining five incidents, because that evidence would have been admissible to show Ramsey's intent. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex.Crim.App. 1991) (op. on reh'g). Consequently, we cannot conclude a reasonable probability exists that the result of the proceeding would have been different but for counsel's alleged error. Moreover, we note that by failing to elect one of six dates, the State is now precluded from seeking a conviction for any of the remaining dates. See Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex.Crim.App. 1998) (The State places a defendant in jeopardy for multiple offenses by failing to elect after presenting proof of multiple instances of conduct that conform to the indictment.). Ramsey next complains that counsel was ineffective for failing to object when the State introduced evidence that Schuster had been no-billed by the grand jury on charges of misconduct filed by Ramsey. After reviewing the record, we cannot agree. Counsel testified at the habeas hearing that he did not object to the complained-of evidence because "we had invited that line of inquiry by the State. Our whole defense in the case was that [Schuster] was a person dangerous to the child; a manipulative person who was using the legal system to put forward her agenda to get at [Ramsey]; and that she herself was a violator of the law because she had done things that were illegal, including not paying child support." The trial record supports counsel's explanation for his failure to object. During direct, Ramsey implied several times that Schuster alone had improperly used the legal system regarding visitation and child support issues. On cross-examination, he stated without invitation, that Schuster "filed frivolous lawsuits and false charges" against him. Later, in response to questioning, he denied that a grand jury had no-billed a case of child interference filed as a result of a complaint by him in November 2000, and he claimed he had not been notified about the grand jury's finding on a criminal non-support case Ramsey filed against her. Under these circumstances, we cannot conclude the grand jury reports were inadmissible. See Clay v. State, 102 S.W.3d 794, 797 (Tex. App.-Texarkana 2003, no pet.) (where defendant delves into part of subject, State is entitled to inquire into whole matter to explain it or correct false impression, even if later evidence was otherwise inadmissible). Thus, we conclude counsel's failure to object to the complained-of evidence was not ineffective. See Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App. 1991) (counsel need not engage in futile acts to provide effective assistance); Garcia v. State, 112 S.W.3d 839, 847 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Finally, Ramsey contends counsel was ineffective by failing to call Gary and Nancy Chance, Ramsey's sister and brother-in-law, as fact witnesses. An attorney's decision not to call witnesses does not constitute ineffective assistance absent a showing that the witnesses were available and that appellant would have benefitted from their testimony. Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986); Johnston v. State, 959 S.W.2d 230, 236 (Tex. App.-Dallas 1997, no pet.); Cate v. State, 124 S.W.3d 922, 927 (Tex. App.-Amarillo 2004, pet. ref'd). Nothing in this record shows that Ramsey would have benefitted from either Gary Chance's or Nancy Chance's testimony. Although Nancy Chance testified she was home on two occasions and Gary Chance testified he was home on one occasion when Schuster attempted to visit her son, this does not negate Schuster's testimony that she attempted to pick up her son for visitation on six weekends and was unable to do so. The Chances' testimony merely shows that they were home on one or two of the six occasions Schuster attempted to visit her son; it does not show that Schuster did not come to their home to pick up her son on the other four occasions. Further, whether the Chances had notice of Schuster's intent to visit with her son and whether they would have allowed Schuster to visit with her son does not mean Ramsey had no notice or that he intended to prevent Schuster from visiting with her son. Thus, we cannot conclude the trial court erred by finding the Chances' testimony would not have resulted in a different outcome. We overrule Ramsey's sole issue. Accordingly, we affirm the trial court's order denying Ramsey's application for a writ of habeas corpus.


Summaries of

Ex Parte Ramsey

Court of Appeals of Texas, Fifth District, Dallas
Aug 23, 2004
No. 05-04-00763-CR (Tex. App. Aug. 23, 2004)
Case details for

Ex Parte Ramsey

Case Details

Full title:EX PARTE ANDREW BASCOME RAMSEY

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 23, 2004

Citations

No. 05-04-00763-CR (Tex. App. Aug. 23, 2004)