Opinion
NO. 01-15-00995-CR
07-13-2017
OSWALDO RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1424341
MEMORANDUM OPINION
Appellant Oswaldo Ramirez was indicted for the offense of aggravated sexual assault of a child under the age of 6. See TEX. PENAL CODE ANN. § 22.021(a)(f)(1). The jury found appellant guilty and sentenced him to twenty-seven years' confinement. On appeal, Ramirez contends (1) he received ineffective assistance of counsel because his attorney did not object to the admission of DNA evidence, and (2) the trial court abused its discretion by denying his request for a hearing on a motion for new trial. We affirm.
TRIAL EVIDENCE
In March 2014, L.G. was four years old. He lived with his mother, his father, and his uncle in an apartment. Appellant lived and worked at the same apartment complex. On March 24, 2014, L.G. was playing in the open doorway to the apartment while his mother cooked breakfast. Mother testified that, after about ten minutes of being out of her sight, Mother noticed that L.G. was no longer there. Mother ran into the courtyard and down a nearby hallway towards the parking lot, growing increasingly alarmed that she could not locate him and he was not responding to her calling his name.
From inside the laundry room next to the hallway, she heard a man say, "Shh." Mother looked inside the laundry room and saw the back and feet of a man who was on his knees. The man was wearing white tennis shoes and beige pants. She got scared and screamed L.G.'s name. The man immediately crawled away to hide himself from her sight. Mother screamed L.G.'s name again and moved away from the door. L.G. came out of the laundry room and Mother grabbed him by the hand; they ran to the apartment.
L.G. told Mother he was with the man that worked at the apartments with lots of bumps on his face. Through their window, Mother then saw appellant, whom she knew as one of the maintenance men, walking past wearing the same type clothes as the man she had seen in the laundry room. Mother asked L.G. if this was the same person who was inside the laundry room and L.G. said it was. Throughout the conversation, L.G. was "quiet" and "scared." Mother provided in court identification of appellant as the maintenance man that L.G. identified to her and that she saw in the laundry room.
L.G. told her that "the man had him turned with his back towards him," pulled his underwear down, and touched L.G.'s anus with his fingers. L.G. also told her that the man gave him marbles before he did this, and promised another gift after, such as candy or more marbles.
Mother called her pastor first, and then the police. While the police were at the apartment complex, they located appellant, and both Mother and L.G. identified appellant as the man in the laundry room who had assaulted L.G. Mother's pastor drove her to the police station, where she filed a report to press charges, and then she took L.G. to the hospital.
When they returned home later on the 24th, Mother went to talk to M. Mosqueda in the apartment office and told her that they had problems with the maintenance man touching her son. They moved out of the complex about three weeks later, as they were not comfortable there.
At a Children's Assessment Center interview, L.G. stated that he was outside the apartment and appellant walked by and told him to go with him to the washer. L.G. recognized appellant because his "cheeks had dots." L.G. again said that in the washroom, appellant pulled down L.G.'s pants and touched his "bootie." L.G. also said that appellant put his finger in L.G. and it hurt. L.G. demonstrated by making a fist and putting his finger inside. He also said that appellant stopped when they heard Mother calling for L.G.
At trial, L.G. testified that he was there to discuss what "happened to me . . . [t]hat a man touched me." He stated that he was embarrassed to talk about it. He provided in-court identification of appellant as the man who touched him. Though L.G. testified that he did not remember how he got in the laundry room, he did remember that appellant touched him "in his bootie" with his hand after pulling L.G.'s shorts and underwear down. L.G. also pointed to the anus of a doll to identify where he had been touched. L.G. said appellant stopped "after a little while," that appellant them gave him marbles, and he then returned home. He did not recall his mother looking for him, telling his mother what had happened, telling anyone else what had happened, or that the police had come out to his apartment. He stated that no one told him what to say at trial.
The State additionally presented DNA evidence based on a partial profile through an expert witness at trial. Prior to trial, Ramirez's trial counsel filed a motion in limine challenging use of the evidence based on Texas Rule of Evidence 403, that the evidence was unfairly prejudicial. After hearing arguments from counsel, the trial court denied that motion, concluding that "the attorneys will be able to place this piece of evidence in the proper context and give the jury the information they need, that they can then decide what to do with it." The court further stated, "[b]ut, ultimately, I think it is of probative value and that the probative value is not substantially outweighed by the danger of unfair prejudice to the defendant." Appellant's trial counsel did not make a 403 objection when the DNA evidence was offered at trial.
After the State rested and the court denied appellant's request for a directed verdict, appellant testified on his own behalf. Appellant admitted that he gave L.G. marbles on March 24, 2014. Appellant knew L.G. because L.G. was frequently playing around the apartment complex, and appellant had given him marbles before that he found on the grounds. Before March 24, appellant had never had any issues with L.G. or his father, but appellant testified that Mother "didn't really like me." Specifically, even before he was alleged to have assaulted L.G., Mother would always make faces at appellant. They had a couple of run ins, once when she refused to give him a key to her apartment to be copied so that he could come by to exterminate, and once when she was selling items at another property where appellant worked.
Appellant denied touching L.G. and testified that he believes L.G. was coached by his parents to make these accusations. After the allegations were made, L.G.'s father tried to attack appellant with a tire iron. Appellant testified to the belief that Mother reported him and subjected L.G. to a forensic interview and an anogenital exam at the hospital because "she didn't like" him. Appellant also asserted that, on April 11, 2014, when he was arrested, Mother and L.G. witnessed his arrest and laughed. Appellant claimed that, prior to these events, he did not know Mother's or L.G.'s names, but knew what apartment they lived in. Appellant testified that on March 24, 2014, he lived in a house about 20 minutes away from the apartments he serviced, and that he did not own a computer.
R. Romero also testified on appellant's behalf. Romero stated that he had known appellant 20 to 25 years, and that appellant had a good reputation for moral treatment around children.
E. Devlin, with a forensic group that specializes in "extraction of data from electronic devices, cell phones, computers, cell towers, hat type of thing" next testified for appellant. Devlin was asked by appellant's attorney to analyze Mother's March 24, 2014 cell-phone records from 11:00 a.m. until 12:00 p.m. Devlin identified a call from Mother to Pasadena Emergency Center at 11:23, and explained that a cell phone records 9-1-1 calls not as 9-1-1 being dialed, but instead as direct calls to the nearest emergency center, where it is automatically routed to. Devlin did not identify any outgoing calls to the number given to him for Mother's pastor's landline on March 24, 2014. Between 11:00 and the 11:23 9-1-1 call, Devlin identified a string of 13 text messages between Mother and an Ohio number with identified subscriber information as G. Guerra, but no information on the content of those texts. On cross-examination, Devlin also explained that there are many ways to make a call and not have it show up on phone records through the use of various apps, wifi, etc. Accordingly, Devlin testified that he could not tell, from the records given him by appellant's attorney, whether Mother had called her pastor or not before calling 9-1-1 on March 24, 2014.
Finally, M. Mosqueda, a leasing agent for the apartments where the assault allegedly took place, testified that the police came out on March 24, 2014, but she denied that Mother had talked to her about the incident between L.G. and appellant. Mosqueda verified that appellant continued to work at the apartment complex after the 24th. She stated that Mother's family moved out of the complex in mid-April of that year, and that—at the time they moved out—Mother was $575.00 behind in rent payments. She testified to Mother complaining about appellant one time before the 24th because she did not like his appearance or smell. She also gave testimony about the demographics of the apartment residents on March 24, 2014, which was inhabited only by Hispanic people.
This information is relevant to the DNA statistics expert's testimony.
ISSUES ON APPEAL
Appellant raises two issues on appeal.
1. Mr. Ramirez received ineffective assistance of counsel when DNA evidence from the complainant's Underwear was admitted without objection.
2. The trial court abused its discretion by denying Mr. Ramirez's request for a hearing on his Motion for New Trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first point of error, appellant argues that he received ineffective assistance of counsel when DNA evidence from L.G.'s underwear was admitted at trial without objection, because the evidence was inadmissible under the Rule of Evidence 403 balancing test. Appellant complains that his trial counsel had a duty to object and that there was no reasonable strategy that could justify trial counsel's failure to do so.
The State responds that the evidence was admissible under Rule 403 regardless of whether trial counsel objected and, even if it was not admissible, such admission was harmless in light of the other evidence. We agree appellant has not established that his attorney's failure to object prejudiced his defense.
A. Standard of Review and Applicable Law
We consider claims of ineffective assistance of counsel under the two-prong test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To prevail on an ineffective assistance of counsel claim, appellant must show that (1) counsel's performance was deficient, meaning it fell below an objective standard of reasonableness, and (2) the deficiency prejudiced the defendant, meaning there was a reasonable probability that, but for the counsel's deficient performance, the results of the trial would have been different. Id.; accord Ex parte Napper, 322 S.W.3d 202, 246, 248 (Tex. Crim. App. 2010). A reasonable probability is a probability sufficient to undermine confidence in the outcome, meaning that counsel's errors must be so serious that they deprive appellant of a fair trial. Smith v. State, 286 S.W.3d 333, 340-41 (Tex. Crim. App. 2009). As we review appellant's claim of ineffective assistance, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
"The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. A trial court has discretion in ruling on the admissibility of evidence. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). As such, we will not disturb the trial court's evidentiary ruling as long as it was within the zone of reasonable disagreement. Id. Applying the Rule 403 balancing test does not permit "a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial." Bradshaw v. State, 466 S.W.3d 875, 883 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013)).
B. Analysis
Appellant's claim of ineffective assistance requires him to show both that his counsel's performance was deficient and that this prejudiced his defense. See Ex parte Napper, 322 S.W.3d at 246. Appellant's sole argument regarding deficient performance is that the DNA evidence taken from L.G.'s underwear was inadmissible at trial under the Rule 403 balancing test, and trial counsel's failure to object to that evidence being admitted at trial was not a reasonable strategy.
The trial court applied the 403 balancing test in reviewing appellant's motion in limine related to this DNA evidence. Appellant does not argue that the trial court abused its discretion in denying that motion in limine, but rather that at trial, "upon proper objection, the trial court would have abused its discretion in admitting the evidence." Appellant argues that by failing to object when the evidence was introduced his trial counsel's performance was deficient.
We need not consider whether counsel's failure to reurge the Rule 403 objection amounted to ineffective assistance because we conclude that appellant has not established prejudice, i.e., a reasonable probability that, but for counsel's alleged error, the result of the trial would have been different. See Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.").
Yip, the State's expert DNA analyst with the Harris County Institute of Forensic Sciences, testified that he prepared the DNA report in this case. DNA profiles were obtained from two spots on L.G.'s underwear. Yip concluded that the DNA results from these two swabs are consistent with mixtures of DNA from three or more individuals. L.G. and appellant cannot be excluded as a possibility contributor to this mixture. Appellant's mother and father are excluded as possible contributors to these mixtures.
Yip testified that the frequency of occurrence of an unrelated, randomly selected individual who could be a contributor to the mixture on one of the swabs is approximately: 1 in 8 Caucasians, 1 in 27 African Americans, and 1 in 5 Hispanics.
The frequency of occurrence of an unrelated, randomly selected individual who could be a contributor to the mixture on the other underwear swab is approximately: 1 in 7 Caucasians, 1 in 8 African Americans, and 1 in 3 Hispanics.
Yip conceded that these statistics were "not robust" and he could "only say that [the appellant] cannot be excluded as a potential contributor to this mixture."
Yip testified that possible semen was detected from swabs taken at a different part of L.G.'s underwear. Yip was not able to develop a profile from these samples. Anal and penile swabs performed on L.G. presumptively tested positive for sperm, but could not be confirmed or profiled.
During cross-examination, Yip stated that the lab only found two sperm during their underwear analysis. He testified that for a normal ejaculation, he would expect to see more, and that sperm cells can survive a laundry cycle.
Appellant insists that the DNA statistical evidence was extremely weak, and that the scientific DNA testimony "likely confused the jury and distracted from the main issue—whether they believed the complainant and his mother's testimony." He reasons that not only was the evidence "so weak and questionable" that it should never have been presented, the jury likely "gave it undue weight" because it "was presented as scientific evidence," which "may have suggested a decision on an emotional and improper basis."
On this record, we disagree that the DNA evidence, albeit of limited probative value, likely confused or misled the jury. During both Yip's direct and cross examination, he conceded that there was not much information to be gleaned from the DNA testing, and he unequivocally testified that the DNA results did not demonstrate that appellant was the perpetrator.
Rather, Yip explained that determining that a person "cannot be excluded" as a DNA contributor is not the same thing as that person being "a match." Appellant's counsel elicited testimony that the DNA semen count in his case (from which no analysis could be performed) was extremely low, and that there were other possible explanations for the presence of the DNA samples on L.G.'s underwear.
In addition, the State was candid during its direct examination of Yip about the weakness of the DNA evidence:
[State]: And just so we are not misrepresenting anything here, I mean, no one is trying to say that this is a definitive, you know, match with - in terms of probability, correct?
A. Correct.
Q. Okay. Those are actually pretty low numbers, correct?
A. Those are small numbers, yes.
Both appellant's counsel and the State referenced the speculative nature of the DNA evidence during closing arguments. Appellant's counsel noted he was excluded as a potential contributor to several of the DNA samples:
And my client is excluded. Excluded. Excluded. Excluded. And what Mr. Yip said were small numbers on the underwear, there is —
there is no evidence there that effectively ties this to my client. He said — he said he doesn't do statistics. He is just a one in three.
So, if you take what [] Mosqueda said, there is 200 Hispanics there in the apartment complex. No black people. No white people. No Chinese. Just Hispanics. One in three. So, you divide 200 by three and it tells you there is 67 odd people there that could have placed — who could have contributed the genetic material there.
. . . .
My guy is — not only is he excluded, but Mr. Yip admits that there's other — other material there that doesn't belong to my client and it is not the child's. So he is excluded.
The State likewise conceded in its closing argument that the DNA evidence did not establish that appellant was the perpetrator in this case:
I am not going to sit here and tell you that the defendant is definitively the person on the underwear. I can't say that because it would be wrong for me to say that. That is misrepresenting the evidence, right?
But very, very, very, very crucially important here, he can't be excluded. And when he says he can't be excluded from the anus, it is misleading at best. It is misleading at best. Which is most of the case that he's presented to you. But what the — what Dennis Yip told you, what the analyst told you, is that all of the identified alleles that we have on there, every identifying number that we have on there, points to not excluding the child. And that makes sense. It came from his own bottom. It came from his own bottom.
Obviously, his DNA is going to be there. We know it is a mixture and we saw that evidence of the graphs and the peaks. And I am sorry I had to go into some of that background. I needed to make sure that it was clear to you, needed to make sure that the analyst made clear to you that these peaks right here are unknown, these two lower peaks. However, we do know that they are less than 31.2. That is what we know. And the defendant's numbers at that location are less than 31.2.
Now, my saying that that is his DNA on there, well, I mean, I am not sure, but it could be. But no one knows for sure. Could be mom. Could be dad. Could be defendant. We are not sure.
. . . .
What is important for you is that to say someone is excluded, okay, that is misleading at best. What we do know is that he cannot be completely excluded . . . . . He cannot be excluded from the child's underwear.
Given the clear and accurate information provided the jury about the DNA results coupled with L.G.'s testimony himself about what had occurred in the laundry room, testimony from Mother (the outcry witness), and testimony from a forensic evaluator at the Children's Assessment Center, we reject appellant's argument that the jury was unduly confused by the DNA evidence such that, without the DNA evidence, there is a reasonable probability that the results of the trial would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 (1984).
We overrule appellant's first issue.
HEARING ON MOTION FOR NEW TRIAL
In his second point of error, appellant argues that the trial court abused its discretion by denying his request for a hearing on a motion for new trial, and that he was entitled to a hearing because he asserted reasonable grounds for relief that are not determinable from the record.
Namely, appellant contends that, after punishment, the State disclosed to his counsel for the first time that Mother had the cell phone from March 2014 still in her possession. At trial, Ramirez contended that a string of text messages was sent between Mother and another person, twenty minutes before her call to the police after finding L.G. On appeal, he contends that these text messages may have contained exculpatory information and that a hearing would have provided "critical information as to the prosecutor's knowledge of any Brady information, if it existed." However, the trial court denied Ramirez's request for an evidentiary hearing on the motion for new trial based on the cell phone.
A. Standard of Review
We review the trial court's denial of a hearing on a motion for new trial for abuse of discretion. Bermudez v. State, 471 S.W.3d 572, 575 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (citing Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Failure to hold a hearing on appellant's motion for new trial is an abuse of discretion when the motion raises matters not determinable from the record, as long as the defendant provides a supporting affidavit showing reasonable grounds for holding that relief should be granted. Smith, 286 S.W.3d at 338. However, "[i]t has long been held that a trial court may decide a motion for new trial based on sworn pleadings and affidavits admitted in evidence without hearing oral testimony." Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
B. Analysis
On December 8, 2015, the trial court entered an order overruling the Defendant's Motion for New Trial, and an order denying his request for a live hearing on his motion. These orders recited they were entered after the trial court considered "the testimony and evidence presented." That evidence included a signed and sworn affidavit by appellant's trial counsel discussing the cell phone. The affidavit described that during the discussion with the jury after the conclusion of the trial, the State "disclosed for the first time that the actual telephone . . . was still in [Mother's] possession." The affidavit additionally claimed that, at trial, Mother had provided information about the cell phone that was inconsistent with the State's post-trial statement.
The record, however, does not reflect that the State had Mother's cell phone or that there was any exculpatory information on Mother's cell phone. Appellant's counsel does not claim that he ever requested access to Mother's cell phone prior to trial. Mother did not deny at trial still having the cell phone. She was never asked. Indeed, appellant's trial counsel conceded that he made the strategic decision to not ask her this on the stand, "being fearful the response might be, 'I upgraded and no longer have that phone,' or something similar." Appellant's counsel likewise conceded that he did not ask because he "knew that this phone would have been at least 20 months old at time of trial, and it was his understanding that Mother 'no longer had the same phone number that she did 20 months earlier.'"
Appellant did not meet his burden to demonstrate that his motion for new trial "rais[ed] matters not determinable from the record." Id. The trial court could have decided to deny the motion for new trial based on the sworn affidavit without also hearing oral testimony. See Id. Accordingly, the trial court did not abuse its discretion in denying a hearing on appellant's motion for new trial.
We overrule appellant's second issue on appeal.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).