AFFIRMED; Opinion Filed November 5, 2015.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01432-CR
ADRIAN RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F-1200745-I
MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Evans
Appellant Adrian Ramirez appeals from the judgment adjudicating him guilty of family
violence assault. Appellant asserts that he was denied effective assistance of counsel when a
witness was allowed to testify, without objection, about the assault on the complainant.
Rejecting appellant’s arguments, we affirm the trial court’s judgment.
BACKGROUND
On August 24, 2012, the court held a plea bargain agreement hearing regarding
appellant’s offense of family violence assault. The plea bargain agreement proposed a deferred
adjudication of guilt and for appellant to be placed on community supervision for a period of two
years and a fine of $2,500. Appellant then entered a plea of guilty to the State’s indictment and a plea of true to the enhancement paragraph. The court accepted the pleas and the terms of the
agreement.1
While on deferred-adjudication probation, appellant was arrested for threatening his wife,
and their children with a knife. On April 2, 2014, the State moved to revoke probation and
proceed with an adjudication of guilt by alleging that appellant had violated conditions of his
probation. The violations included assault with a deadly weapon, contact with the victim, failure
to pay costs and fines, and failure to complete community service hours. The appellant pleaded
not true and the State presented evidence at the hearing on June 30, 2014. Cynthia Zavala, a
CPS investigator, testified that she was assigned to the case involving appellant and his wife
when an allegation was made that their eight-year-old son had been hit. Zavala testified that
appellant’s wife called her after Zavala’s initial visit and stated that she needed help because
appellant had threatened her and her kids with a knife. Specifically, Zavala testified as follows:
Ms. Gloria Ramirez called and said that she needed help because her husband had threatened her and the kids with a knife a couple of days prior to that. And I discussed this with my supervisor. We had to go to the home and kind of investigate that and see what had happened.
CPS contacted the police and appellant was arrested. Marshay Love, an employee of the Dallas
County Community Supervision and Corrections Department, testified and verified that
appellant had not made any of his required payments towards his court costs and fines and made
only one payment towards his community supervision fees. Love also testified that appellant
had failed to complete his 160 community service hours.
Following the hearing, the court found appellant guilty of the offense of assault/family
violence and found the enhancement paragraph “true.” The trial court granted the State’s Motion
1 During the plea bargain hearing, the trial court noted that appellant would be facing twenty-five years to life if he was convicted and the State proved that appellant had served two prior convictions.
–2– to Adjudicate Guilt and sentenced appellant to ten years in prison. Appellant then filed this
appeal.
ANALYSIS
In his sole issue, appellant contends that he was not afforded effective assistance of
counsel because his trial court counsel did not object to the admission of Zavala’s testimony
about the assault. Specifically, appellant asserts that Zavala should not have been allowed to
testify as to what appellant’s wife told her about the alleged assault—that appellant had
threatened her and the children with a knife a couple of days prior to her call to Zavala.
A. Standard of Review
Texas courts apply the two-pronged Strickland test to determine whether counsel’s
representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel.
Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984); Hernandez v. State, 726 S.W.2d 53, 57
(Tex. Crim. App. 1986) (adopting the Strickland two-prong test for criminal cases in Texas.).
Under this two-part test, appellant must establish that: (1) counsel’s performance was deficient
and that his assistance fell below an objective standard of reasonableness; and (2) but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not
find counsel’s representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.
App. 2011). In order to satisfy the first prong, appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). Further, there is a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To
prove the second prong, appellant must show that there is a reasonable probability, or a
–3– probability sufficient to undermine confidence in the outcome, that the result of the proceeding
would have been different. Lopez, 343 S.W.3d at 142.
We ordinarily will not declare trial counsel ineffective where there is no record showing
counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). Without evidence of the strategy employed, we will presume sound
trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Texas
procedure makes it “virtually impossible” for appellate counsel to present an adequate ineffective
assistance of trial counsel claim on direct review. Trevino v. Thaler, 133 S. Ct. 1911, 1918
(2013). This is because the inherent nature of most ineffective assistance of trial counsel claims
means that the trial court record “will often fail to ‘contai[n] the information necessary to
substantiate’ the claim.” Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.
1997).
B. Analysis
Appellant contends that he failed to receive effective assistance of counsel because his
attorney did not object when Zavala testified about what appellant’s wife told her regarding the
assault. Appellant argues that trial counsel should have made a hearsay objection to disallow the
testimony. This argument is unpersuasive for several reasons.
First, the record is completely silent as to why trial counsel failed to object to the State’s
questioning of Zavala. As the court of criminal appeals has previously held, “[a]n appellate
court should be especially hesitant to declare counsel ineffective based upon a single alleged
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AFFIRMED; Opinion Filed November 5, 2015.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01432-CR
ADRIAN RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F-1200745-I
MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Evans
Appellant Adrian Ramirez appeals from the judgment adjudicating him guilty of family
violence assault. Appellant asserts that he was denied effective assistance of counsel when a
witness was allowed to testify, without objection, about the assault on the complainant.
Rejecting appellant’s arguments, we affirm the trial court’s judgment.
BACKGROUND
On August 24, 2012, the court held a plea bargain agreement hearing regarding
appellant’s offense of family violence assault. The plea bargain agreement proposed a deferred
adjudication of guilt and for appellant to be placed on community supervision for a period of two
years and a fine of $2,500. Appellant then entered a plea of guilty to the State’s indictment and a plea of true to the enhancement paragraph. The court accepted the pleas and the terms of the
agreement.1
While on deferred-adjudication probation, appellant was arrested for threatening his wife,
and their children with a knife. On April 2, 2014, the State moved to revoke probation and
proceed with an adjudication of guilt by alleging that appellant had violated conditions of his
probation. The violations included assault with a deadly weapon, contact with the victim, failure
to pay costs and fines, and failure to complete community service hours. The appellant pleaded
not true and the State presented evidence at the hearing on June 30, 2014. Cynthia Zavala, a
CPS investigator, testified that she was assigned to the case involving appellant and his wife
when an allegation was made that their eight-year-old son had been hit. Zavala testified that
appellant’s wife called her after Zavala’s initial visit and stated that she needed help because
appellant had threatened her and her kids with a knife. Specifically, Zavala testified as follows:
Ms. Gloria Ramirez called and said that she needed help because her husband had threatened her and the kids with a knife a couple of days prior to that. And I discussed this with my supervisor. We had to go to the home and kind of investigate that and see what had happened.
CPS contacted the police and appellant was arrested. Marshay Love, an employee of the Dallas
County Community Supervision and Corrections Department, testified and verified that
appellant had not made any of his required payments towards his court costs and fines and made
only one payment towards his community supervision fees. Love also testified that appellant
had failed to complete his 160 community service hours.
Following the hearing, the court found appellant guilty of the offense of assault/family
violence and found the enhancement paragraph “true.” The trial court granted the State’s Motion
1 During the plea bargain hearing, the trial court noted that appellant would be facing twenty-five years to life if he was convicted and the State proved that appellant had served two prior convictions.
–2– to Adjudicate Guilt and sentenced appellant to ten years in prison. Appellant then filed this
appeal.
ANALYSIS
In his sole issue, appellant contends that he was not afforded effective assistance of
counsel because his trial court counsel did not object to the admission of Zavala’s testimony
about the assault. Specifically, appellant asserts that Zavala should not have been allowed to
testify as to what appellant’s wife told her about the alleged assault—that appellant had
threatened her and the children with a knife a couple of days prior to her call to Zavala.
A. Standard of Review
Texas courts apply the two-pronged Strickland test to determine whether counsel’s
representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel.
Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984); Hernandez v. State, 726 S.W.2d 53, 57
(Tex. Crim. App. 1986) (adopting the Strickland two-prong test for criminal cases in Texas.).
Under this two-part test, appellant must establish that: (1) counsel’s performance was deficient
and that his assistance fell below an objective standard of reasonableness; and (2) but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not
find counsel’s representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.
App. 2011). In order to satisfy the first prong, appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). Further, there is a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To
prove the second prong, appellant must show that there is a reasonable probability, or a
–3– probability sufficient to undermine confidence in the outcome, that the result of the proceeding
would have been different. Lopez, 343 S.W.3d at 142.
We ordinarily will not declare trial counsel ineffective where there is no record showing
counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). Without evidence of the strategy employed, we will presume sound
trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Texas
procedure makes it “virtually impossible” for appellate counsel to present an adequate ineffective
assistance of trial counsel claim on direct review. Trevino v. Thaler, 133 S. Ct. 1911, 1918
(2013). This is because the inherent nature of most ineffective assistance of trial counsel claims
means that the trial court record “will often fail to ‘contai[n] the information necessary to
substantiate’ the claim.” Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.
1997).
B. Analysis
Appellant contends that he failed to receive effective assistance of counsel because his
attorney did not object when Zavala testified about what appellant’s wife told her regarding the
assault. Appellant argues that trial counsel should have made a hearsay objection to disallow the
testimony. This argument is unpersuasive for several reasons.
First, the record is completely silent as to why trial counsel failed to object to the State’s
questioning of Zavala. As the court of criminal appeals has previously held, “[a]n appellate
court should be especially hesitant to declare counsel ineffective based upon a single alleged
miscalculation during what amounts to otherwise satisfactory representation, especially when the
record provides no discernible explanation of the motivation behind counsel’s actions—whether
those actions were of strategic design or the result of negligent conduct.” Thompson, 9 S.W.3d
at 814. Thus, we cannot conclude that appellant has rebutted the strong presumption that this
–4– was a reasonable decision. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)
(“Trial counsel should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective. If trial counsel is not given that opportunity, then the appellate court
should not find deficient performance unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.”) (internal citations omitted).
Further, even if we did hold that trial counsel’s assistance fell below an objective
standard of reasonableness, appellant has not demonstrated that, but for counsel’s unprofessional
error, the result of the proceeding would have been different. Appellant argues that the trial
court found two allegations “true”—that appellant assaulted his wife and had impermissible
contact with her—and that these findings stem from Zavala’s testimony. Appellant argues that
he would not have received a ten-year sentence had the trial court sustained a hearsay objection.
We disagree. In its motion, the State asserted that appellant violated the following conditions:
(a) ADRIAN RAMIREZ did violate condition (a) by violating the laws of the State of Texas in that on or about 03/26/2014 in Dallas County, Texas, he did commit the offense of Aggravated Assault with a Deadly Weapon. (h) ADRIAN RAMIREZ did violate condition (h) in that he did not pay Court Costs and Fines as ordered by the court and is currently delinquent $2,744.00. (j) ADRIAN RAMIREZ did violate condition (J) in that he did not pay community supervision fees as directed and is currently delinquent $1,140.00. (k) ADRIAN RAMIREZ did violate condition (k) in that he did not pay the Crime Stoppers payment as ordered by the court and is currently delinquent $50.00. (I) ADRIAN RAMIREZ did violate condition (l) in that he did not complete Community Service hours as directed. (s) ADRIAN RAMIREZ did violate condition (s) in that he did have contact with victim Gloria Hernandez Ramirez.
The trial court did not limit its consideration of appellant’s probation violations to only two of
the conditions. To the contrary, the trial court held in the judgment that appellant “violated the
terms and conditions of community supervision as set out in the State’s Motion to Adjudicate
Guilt.” Thus, the trial court held that the appellant violated all six of the conditions alleged by
the State. The trial court also considered evidence of appellant’s former convictions of
aggravated assault/family violence/deadly weapon and assault/bodily injury/family violence and –5– the fact that appellant was on probation for assault/family violence when it was revoked.
Considering the entirety of this evidence, it is entirely possible that appellant could have been
sentenced to ten years’ imprisonment without consideration of the hearsay testimony. As such,
appellant has failed to demonstrate that but for counsel’s unprofessional error the result of the
proceeding would have been different and we overrule appellant’s sole issue.
CONCLUSION
We resolve appellant’s issue against him and affirm the trial court’s judgment.
/ David Evans/ DAVID EVANS JUSTICE
Do Not Publish TEX. R. APP. P. 47 141432F.U05
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ADRIAN RAMIREZ, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-14-01432-CR V. Trial Court Cause No. F-1200745-I. Opinion delivered by Justice Evans. THE STATE OF TEXAS, Appellee Justices Lang and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of November, 2015.
–7–