Kevin Alejandro Ramos v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 19, 2022
• Docket: 10-21-00262-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00262-CR

KEVIN ALEJANDRO RAMOS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 19-03385-CRF-272

MEMORANDUM OPINION

Kevin Alejandro Ramos pled guilty to two offenses: aggravated robbery and

aggravated assault with a deadly weapon. After punishment was tried to the court,

Ramos was sentenced to 25 years and 20 years in prison, respectively. Because Ramos

did not sustain his burden of proving his ineffective assistance of counsel claim, the trial

court’s judgments are affirmed.

BACKGROUND

Ramos attacked a person from behind at an ATM and stabbed him in the back of the head and neck. He robbed another person in line at the same ATM. His defensive

theory was that someone must have slipped something in one of his drinks, he blacked

out for the rest of the night, and had no knowledge of what he allegedly did. Ramos

hired an expert and paid for the expert’s report. Approximately five days before the trial

on punishment, Ramos informed his counsel that he could not pay for the expert’s

testimony fee because Ramos had been off of work for two weeks due to Covid. His

attorney requested a continuance for 60 to 90 days. The continuance was denied because

the trial court did not want to delay the punishment hearing any longer than it had

already been delayed 1 and because the delay would be longer than 90 days due to the

court’s schedule.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his sole issue, Ramos asserts his counsel provided ineffective assistance at the

punishment phase of Ramos’s trial because counsel failed to file an “Ake Motion” for the

appointment of an expert to testify regarding Ramos’s mental state and lack of memory

at the time of the alleged offense. See Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 1090,

84 L. Ed. 2d 53 (1985) (indigent defendant has a due process right to a court-appointed

expert in some cases).

Standard of Review

To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy

a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

1 Ramos’s guilty plea had occurred in May and the punishment trial was scheduled for the end of August.

Ramos v. State Page 2 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, the appellant

must show that counsel was so deficient as to deprive appellant of his Sixth Amendment

right to counsel. Strickland, 466 U.S. at 687. Second, the appellant must show that the

deficient representation was prejudicial and resulted in an unfair trial. Id. To satisfy the

first prong, appellant must show that his counsel's representation was objectively

unreasonable. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the

second prong, appellant must show that there is "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different."

Thompson, 9 S.W.3d at 812. A reasonable probability exists if it is enough to undermine

the adversarial process and thus the outcome of the trial. See Strickland, 466 U.S. at 694;

Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to

the totality of the representation and the particular circumstances of each case in

evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly

deferential. Mallett, 65 S.W.3d at 63.

The appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded

in the record. Thompson, 9 S.W.3d at 813. An appellant's failure to satisfy one prong of

the test negates a court's need to consider the other prong of Strickland. Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

Application

Regardless of whether counsel’s performance was deficient, Ramos failed to prove

that but for counsel's unprofessional errors, the result of the proceeding would have been

Ramos v. State Page 3 different. Ramos faults his counsel for not filing an “Ake Motion” for the appointment of

an expert, rather than a motion for continuance, since Ramos could not afford his expert’s

appearance fee. But Ramos has not shown how he was prejudiced by the failure to file a

motion which may or may not have resulted in the appointment of the expert he had

hired so that the expert could testify at the punishment phase. Ramos asserted in his brief

that he could have had the expert testify about Ramos’s state of mind and that he did not

recall the events of the offenses. Many witnesses testified about how Ramos stated he

could not remember the events. Further, the expert’s report was introduced into evidence

and in that report, the expert stated Ramos did not suffer from any clinically diagnosable

issues. The expert also stated in his report that Ramos reported he had no personal

memories of the evening after having “around 2 drinks.” Upon examination of the

record, there is no evidence establishing what the expert might have testified to beyond

the expert’s admitted report that would have ultimately undermined the results of the

proceeding.

Accordingly, Ramos did not prove the second prong of the Strickland test, and his

sole issue is overruled.

CONCLUSION

The trial court’s judgments are affirmed.

TOM GRAY Chief Justice

Ramos v. State Page 4 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed October 19, 2022 Do not publish [CRPM]

Ramos v. State Page 5