No. 04-04-00226-CR
Delivered and Filed: June 1, 2005. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-2705A, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice (concurring in the judgment only) Sandee Bryan MARION, Justice.
Opinion by: CATHERINE STONE, Justice.
A jury found appellant, Anthony Ramirez, guilty of murder and assessed punishment at fifty years confinement. On appeal, Ramirez asserts the trial court erred in refusing to allow his trial counsel to pursue a defense strategy in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Ramirez also claims he was denied effective assistance of counsel and that the evidence is factually insufficient to support the jury's verdict. We affirm the trial court's judgment.
Background
Joseph Staten was killed when he was shot at close range on the right side of his head. At the time of the shooting, Staten was seated in the front passenger seat of a Kia driven by his friend, Kent Burgard. Robert Martinez, another friend of Staten, was seated behind Burgard. Prior to the shooting, Staten visited Burgard at his home. They made plans to pick up Martinez and drive to Staten's home to play video games. When they arrived at Martinez's home, he told them about a party hosted by Bobby Rosas. They did not know where the party was located, so they drove to Mike Sanchez's home and followed him to the party. Martinez testified they arrived at the party around 11:00 p.m. He went inside while Staten and Burgard waited by the car. Martinez testified Burgard and Staten stayed outside because they did not know anybody at the party, and Staten was not dressed for the occasion. Sabrina Rosas testified her family threw a birthday party for her brother, Robert "Bobby" Rosas, the evening of the shooting. Several of Bobby's family members and friends were present, including Anthony Ramirez. During the evening, Sabrina saw Ramirez hand a black semi-automatic handgun to her father, Daniel Rosas. Daniel took the handgun to the bedroom. Sabrina also testified that she witnessed Ramirez snorting an unidentified substance. Martinez stayed inside the Rosas residence for approximately ten to fifteen minutes. He witnessed Sanchez get into an altercation with Ramirez. Bobby Rosas stepped in to break up the fight, and then got into an argument with Daniel. While the second altercation was going on, Sanchez informed Martinez that Staten was looking for him because he wanted to leave. Martinez met Staten and Burgard out front and they left the party. As they were leaving, Martinez noticed a dark blue Mustang pull into the front yard. Less than a minute later, Martinez noticed a car driving up behind them very fast, flashing its lights. The car, a dark blue Mustang driven by Fernando Tovar, pulled up beside them. The passenger in the Mustang, Ramirez, shouted and motioned for them to pull over. Tovar drove the Mustang in front of Burgard and stopped, and Burgard stopped his car. Tovar and Ramirez exited the Mustang, walked over to the passenger side of the Kia and asked, "why did you pull a knife on my cousin at the party?" Martinez witnessed Ramirez reach into the pocket of his sweater, pull out a black semiautomatic handgun, and point it at Staten. Ramirez stepped back and fired twice in Staten's direction, hitting him once in the head and killing him instantly. Burgard immediately drove to a gas station and called the police. The police arrived at the scene at 12:35 a.m., observed Staten deceased in the front passenger seat, interviewed Burgard and Martinez, and examined the vehicle for evidence. The police were able to lift a handprint from the back passenger door of the Kia that matched Ramirez. Burgard and Martinez separately gave statements and identified Ramirez out of a photo line-up. Minutes after the shooting, the police received a phone call directing them to the Rosas residence. Tovar had driven off with Ramirez after the shooting and asked Ramirez to get out of the Mustang. Tovar then drove to the Rosas residence where he was crying and panicking. Sabrina Rosas testified her father searched for the black handgun Ramirez had given him earlier in the evening and could not find it. The police located two shell casings at the scene of the shooting that were fired from a semiautomatic handgun. A bullet recovered from Staten's body was also fired from a semiautomatic handgun. At trial, Ramirez's defense was that Tovar shot Staten. Bobby Carreles and Johnny Olvera attended Rosas' birthday party the night of the shooting and testified for the defense. Carreles testified he witnessed Tovar arguing with Staten in the front yard and that Tovar lifted up his shirt and told Staten he had a gun. During cross-examination, however, Carreles could not describe what Tovar wore that evening, explaining he could only see Tovar from the neck up because his view was obstructed by a car. Also, Carreles left the party at 10:30 p.m., approximately two hours before the shooting occurred. The defense argued Ramirez was so inebriated he could not have killed Staten. Witnesses who attended the party testified that Ramirez consumed large amounts of alcohol and snorted cocaine. Johnny Olvera testified Ramirez was so drunk he fell down. According to Olvera, Tovar forced Ramirez to get into the Mustang. While Olvera was out driving with Bobby Rosas, searching for Tovar and Ramirez, they received a frantic phone call that Ramirez had just shot somebody and that Tovar was going back to the Rosas house. Defense Strategy
In his first issue, Ramirez complains that the trial court violated his Sixth and Fourteenth Amendment rights by refusing to allow him to pursue a valid defense strategy. Specifically, Ramirez contends the trial court erred by refusing to allow defense counsel to "pursue a trial strategy of preventing the introduction of the [investigation] video into evidence." In support of this argument, Ramirez relies on Geders v. United States, 425 U.S. 80 (1976), in which the United States Supreme Court held that a criminal defendant did not receive a fair trial where the trial court entered an order preventing the defendant from consulting with his counsel during an overnight recess. Id. at 91. Geders is distinguishable and inapplicable to the case at bar. Ramirez's trial counsel was not prevented from developing a trial strategy due to the inability to consult with his client. In accordance with his objection at trial, Ramirez's true complaint is that the trial court erred in overruling trial counsel's objection that the videotape be excluded under Rule 403. See Tex. R. Evid. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice). Under Rule 403, a trial court's analysis of the admissibility of a silent videotape is the same as it is for still photographs. Gordon v. State, 784 S.W.2d 410, 411-12 (Tex.Crim.App. 1990). As with the admissibility of still photographs, the trial court's decision regarding the admission of a videotape may not be disturbed on appeal absent an abuse of discretion. Id. at 413. Videotapes are admissible when they are properly authenticated, relevant to an issue, and do not violate the rules of evidence for the admissibility of photographs. Id. at 412. When a verbal description of a scene is admissible, a photograph or video recording of the scene would also be admissible. Wilkerson v. State, 726 S.W.2d 542, 547 (Tex.Crim.App. 1986). We have reviewed the silent videotape, which is approximately six minutes in length. It depicts the investigation scene shortly after the murder. It shows the parking lot where the investigation occurred; Burgard's parked vehicle; the location and position of the victim's body; the entry of the bullet in the car door; blood spatter on the window and back seat of the car; and gun powder on the victim's hands. Although the content of the video may be unpleasant to view, it depicts "nothing more than the reality of the brutal crime committed." See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). The videotape contains material that was the subject of testimony presented during the State's case in chief and is "probative of the fact and manner of the decedent's death and the killer's culpable mental state." Gordon, 784 S.W.2d at 412. After viewing the videotape, we conclude that it has substantial probative value and could aid the jury in understanding the other evidence presented at trial. We therefore hold that the probative value of the videotape was not substantially outweighed by any prejudicial effect it may have had upon the jury. Ramirez's first issue is overruled. Ineffective Assistance of Counsel
In two issues, Ramirez contends he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10. Specifically, Ramirez claims his counsel was ineffective for failing to timely request: (1) a pretrial conference on his motion in limine; (2) a competency examination; and (3) notice of evidence the State might seek to introduce under Tex. R. Evid. 404(b) and Tex. Code Crim. Proc. art. 37.07 (Vernon Supp. 2004). To establish ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that: 1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and 2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003) (citing Strickland v. Washington, 466 U.S. 668, 691 (1984)). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The Strickland standard applies to claims of ineffective assistance both during the guilt/innocence and punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999). As a reviewing court, we cannot speculate as to the reasons why trial counsel acted as she did; rather, we must be highly deferential and presume trial counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Any allegations of ineffectiveness must be firmly founded in the record, and the appellant must prove he was denied a fair trial based on the totality of the representation, not by isolated instances or by only a portion of the trial. Id. at 835; Harling v. State, 899 S.W.2d 9, 12 (Tex.App.-San Antonio 1995, pet. ref'd). In assessing whether a defendant has met both prongs of Strickland, we are limited to the facts of the case. Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). To support his contention that his trial counsel was deficient for failing to request a competency hearing, Ramirez points to the testimony of Robert Martinez. Martinez described Ramirez's condition at the party as "I wouldn't say he was drunk, but like something was wrong with him . . . he didn't look like he was in his right mind." Ramirez contends this testimony raised an issue as to his competency to stand trial. We disagree. A person is competent to stand trial if that person has the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and has an understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2004-05) (emphasis added). A defendant is presumed competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. The evidence adduced at trial showed Ramirez consumed alcohol and snorted cocaine the evening of the shooting. Nothing in the record suggests he was not competent at trial. Based on the record, we cannot conclude counsel was deficient for failing to request a competency hearing. The record is insufficient to support Ramirez's remaining claims. The Court of Criminal Appeals has stated that "in the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland." Thompson, 9 S.W.3d at 814 n. 6. This case is no exception. Although Ramirez filed a motion for new trial, no hearing was conducted to explore trial counsel's strategies. To conclude that the presentation by Ramirez's counsel was deficient without a proper record exploring his defense counsel's 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 Thompson, 9 S.W.3d at 813-14. We conclude Ramirez has failed to overcome the strong presumption that his counsel performed in a reasonably professional manner. See id. Therefore, we overrule Ramirez's second and third issues. Sufficiency of the Evidence
In his fourth issue, Ramirez contends the evidence is factually insufficient to support his conviction. A. Standard of Review
In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In performing a factual sufficiency review, we give deference to the fact-finder's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 482. We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Id. at 481. A clearly wrong and manifestly unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Id. B. Analysis A person commits the offense of murder if he "intentionally or knowingly causes the death of an individual" or he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). Ramirez argues the jury's verdict is undermined because Burgard's view of Ramirez was obstructed when the gunshots were fired; it was dark; Tovar was standing next to Ramirez; Martinez gave a description of Ramirez to the police but did not offer Ramirez's name; and Carreles testified Tovar forced Ramirez to get into the Mustang. Although Burgard was not able to see Ramirez holding the handgun, he testified that Tovar had both his hands on Staten's door and was not holding a gun. Burgard testified he then heard the shots and knew that the passenger of the Mustang, not Tovar, fired the shots. Because the street was well-lit, Burgard got a good look at Ramirez's face and was able to identify him in a photo line-up two days after the shooting. Ramirez questions why Martinez, who witnessed him holding the handgun, did not immediately give his name to the police. Martinez indicated he has known Ramirez since the sixth grade and occasionally sees him around the neighborhood. After the shooting, Martinez described Ramirez to the police and later identified him from a photo line-up. These discrepancies or deficiencies noted by Ramirez give rise to credibility issues. Credibility issues, however, are exclusively reserved for the jury. See Cain, 958 S.W.2d at 407. In support of Ramirez's defense that Tovar shot Staten, there was testimony that Tovar got into an altercation with Staten and lifted his shirt to show Staten he had a gun, Ramirez was forced against his will to get into Tovar's Mustang, and Ramirez was under the influence of alcohol and drugs. Carreles said he saw Tovar lift his shirt, but then claimed during cross-examination he could only see Tovar from the neck up because his view was blocked by the Kia. Carreles stated he saw Tovar force Ramirez into his Mustang at 10:15 p.m., two hours before the shooting occurred. The jury heard all the testimony and clearly did not believe Tovar shot Staten, or that Ramirez was so inebriated he could not shoot Staten. Because the jury has the exclusive responsibility of reconciling conflicts in the testimony, we will not substitute our judgment. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997). It is undisputed Ramirez was at the scene of the shooting. In light of the evidence Ramirez was seen with a handgun at the party; Burgard could see Tovar's hands and knew he was not holding a handgun when the shots were fired; Martinez saw Ramirez point a handgun at Staten and fire twice; Ramirez was identified in a photo line-up within two days of the shooting; and Olvera's testimony that he and Bobby received a frantic phone call shortly after the murder that Ramirez had shot someone, we cannot conclude the jury's verdict was clearly wrong and manifestly unjust. Ramirez's fourth issue is overruled. Conclusion
Having overruled all of Ramirez's appellate issues, we affirm the trial court's judgment.