COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RICARDO RAMIREZ,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
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No. 08-06-00248-CR
Appeal from
168th District Court
of El Paso County, Texas
(TC # 20060D01433) |
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O P I N I O N
Ricardo Ramirez appeals his conviction of possession of less than one gram of cocaine. A
jury found Appellant guilty and assessed his punishment at a fine of $10,000 and imprisonment for
a term of twenty years. Finding no error, we affirm.
FACTUAL SUMMARY
On September 9, 2005, at approximately 1:00 a.m., Javier Garcia, a police office with the
Socorro Police Department, was parked where he could observe a known drug house. Garcia knew
from prior experience that drug transactions were made from the back window of the house. Garcia
was parked in a dark area where his marked patrol unit could not be easily seen but he could observe
activity at the residence because it was illuminated by a street light. He watched a black Jeep pull
into the driveway of the house and then leave after staying only five to seven minutes. Based on his
prior experience and observations of the residence, Garcia believed a drug transaction had just taken
place and he followed the Jeep. He initiated a traffic stop after the driver disregarded a stop sign.
Garcia quickly approached the Jeep and saw that the driver, subsequently identified as Appellant,
was extremely nervous and was trying to hide something by tightly clenching his right hand over his
leg. His left hand was open and resting on his lap. Garcia asked Appellant what he had in his right
hand and Appellant indicated he had nothing in his left hand. When he asked Appellant what he had
in his right hand, Appellant placed something between the driver's seat and the console and said that
he did not have anything. Garcia made Appellant exit the vehicle and he found a plastic bag
containing less than one gram of cocaine between the driver's seat and console where he had seen
Appellant hide the item which had been in his right hand. After being advised of his Miranda rights,
Appellant gave a voluntary written statement admitting that he bought the cocaine from the residence
Garcia had been watching.
INEFFECTIVE ASSISTANCE
In Issues One and Two, Appellant asserts that he was denied the effective assistance of
counsel at the punishment hearing of his trial because counsel failed to object to certain items of
evidence. First, he alleges that his trial attorney failed to object to the admission of oral and written
statements that he was a member of the Barrio Azteca gang because the statements were made in
violation of Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona. (1) Second,
Appellant maintains that counsel's performance was deficient because she failed to raise a hearsay
objection to the admission of Appellant's jail records.
Standard of Review
The standard for determining claims of ineffective assistance under the Sixth Amendment
is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770,
771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel's
performance was deficient to the extent that counsel failed to function as the "counsel" guaranteed
by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the
second prong, the defendant must establish that counsel's deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d
at 771. Prejudice is established by a showing that there is a reasonable probability that but for
counsel's unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771.
When we review a claim of ineffective assistance, we indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable, professional assistance, and the
appellant must overcome the presumption that the challenged conduct can be considered sound trial
strategy. Jackson, 877 S.W .2d at 771. In any case analyzing the effective assistance of counsel, we
begin with the strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808,
813 (Tex.Crim.App. 1999). The defendant must rebut the presumption that the challenged conduct
can be considered sound trial strategy. Jackson, 877 S.W .2d at 771. If the record is silent as to the
facts, circumstances, and rationale behind an attorney's particular course of action, we are compelled
to find that the defendant did not rebut the presumption that it was a reasonable one. See Thompson,
9 S.W.3d at 814.
The Punishment Hearing Evidence
During the punishment hearing, the State presented evidence that Appellant admitted to
Lieutenant James Nance of the El Paso Sheriff's Office that he was a member of the Barrio Azteca
prison gang. The trial court overruled Appellant's objection that the State failed to disclose Lt.
Nance as an expert witness because he had been disclosed as a fact witness and did not testify as an
expert. Lt. Nance is employed at the El Paso Jail Annex and is in charge of the security threat
intelligence unit. His duties include identifying prison gang members and monitoring their activity
during incarceration in the Jail Annex. One reason for identifying prison gang members is to prevent
members of rival gangs from harming the individual. Lt. Nance was familiar with Appellant, who
had indicated to him during the booking process in 1998 that he was a member of the Barrio Azteca
gang. Appellant signed what is known as a self-admission form stating that he is a member of Barrio
Azteca. Lt. Nance viewed three prison gangs as presenting the greatest security threat: Barrio
Azteca, the Mexican Mafia, and the Texas Syndicate. Because Barrio Azteca presents the largest
threat to security, they are separated from the general population. Lt. Nance photographed one of
Appellant's tattoos which Appellant described as an Azteca tattoo. Lt. Nance had seen similar
tattoos on other Barrio Azteca members.
State's Exhibit 15, Appellant's jail record for this 2006 offense, (2) was admitted without
objection as a business record. State's Exhibit 15 contains an inmate classification sheet which
reflects the charge on which Appellant was booked and a calculation of the risk Appellant presented
to the facility. This calculation is made by considering different factors and assigning points. The
factors include the offense, offense history, escape history, disciplinary and serious disciplinary
points assessed, felony convictions, and whether the individual has a history of problems or
assaultive behavior due to alcohol and drug abuse. State's Exhibit 15 contains documents reflecting
Appellant's arrest, prosecution, and conviction history.
Detective Jeff Gibson of the El Paso Sheriff's Office is a detention officer whose duties
include gang intelligence and security threat group intelligence. He had also gathered gang
intelligence when he was a patrolman with the Sheriff's Office. Additionally, Detective Gibson had
been assigned to a federal gang task force for almost seven years. Based on his education and
experience, the trial court determined that Detective Gibson qualified as an expert on gangs.
Detective Gibson used established criteria to determine whether an individual is a gang member:
self-admission, information from a reliable informant, information from a witness of unknown
reliability with corroboration, evidence of association such as tattoos, and evidence of arrest in
criminal association with other gang members. Detective Gibson looked at the photographic exhibits
showing Appellant's tattoos and he concluded that one of them on the left side of Appellant's chest
is Barrio Azteca symbiology. As a detention officer, Detective Gibson was familiar with the booking
process during which an individual is asked at least three times whether he is a gang member.
Detective Gibson reviewed the booking records, State's Exhibit 15, and testified that there are
several notations in the file that Appellant is a member of the Barrio Azteca prison gang. Detective
Gibson did not remember the circumstances of the conversation but he recalled that Appellant
admitted that he was a Barrio Azteca member.
No Evidence of Trial Strategy
Appellant filed a motion for new trial asserting that the State had failed to give him notice
of the documentary, photographic, and testimonial punishment evidence regarding his Barrio Azteca
gang membership. His motion for new trial did not allege that trial counsel rendered ineffective
assistance by failing to object to the admission of this evidence and he did not offer the testimony
of trial counsel at the punishment hearing. Consequently, the record is silent with regard to counsel's
reason for failing to make the objections Appellant claims he should have made. For this reason
alone, the ineffective assistance of counsel claim fails. See Thompson, 9 S.W.3d at 813-14 (where
record was silent as to reason trial counsel failed to object to the prosecutor's persistent attempts to
elicit inadmissible hearsay, the appellant failed to rebut the presumption this was a reasonable
decision; noting that it was possible given the artful questions employed by the prosecutor, that the
appellant's counsel at that moment may have reasonably decided that the testimony was not
inadmissible and an objection was not appropriate). Even if we consider the merits of Appellant's
arguments, we find that he has not carried his burden under Strickland.
Appellant's Arguments
Appellant first contends that trial counsel should have objected that his oral and written
statements of gang membership were taken in violation of Article 38.22 and without a waiver of his
Miranda rights. Article 38.22 and Miranda do not apply unless the accused's statement is the result
of custodial interrogation. Tex.Code Crim.Proc.Ann. art. 38.22, § 5 (Vernon 2005); Dowthitt v.
State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996). Custodial interrogation occurs when a person
in custody is subjected to direct questioning or its functional equivalent, which occurs when police
officers engage in conduct that they know is likely to elicit an incriminating response. Rhode Island
v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). Questioning
"normally attendant to arrest and custody" is not interrogation. McCambridge v. State, 712 S.W.2d
499, 505 (Tex.Crim.App. 1986), citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682,
1689, 64 L.Ed.2d 297 (1980). Further, questions normally attendant to the administrative "booking"
procedure do not constitute "interrogation" because they do not normally elicit incriminating
responses. Cross v. State, 144 S.W.3d 521, 524 n.5 (Tex.Crim.App. 2004); Cruse v. State, 882
S.W.2d 50, 51-52 (Tex.App.--Houston [14th Dist.] 1994, no pet.)(interview of defendant by
investigator for pretrial services department charged with acquiring basic information from arrestees
in order to determine possibilities for pretrial release was not a custodial interrogation). This
includes inquiries into a defendant's gang affiliation for purposes of jail classification and security
where there is no evidence that the defendant's crime was gang-related. Pierce v. State, 234 S.W.3d
265, 271-72 (Tex.App.--Waco 2007, pet. ref'd)(defendant's admission of his former gang affiliation,
made when defendant was going through jail's normal classification process, did not stem from
custodial interrogation, and thus, was admissible in punishment phase in murder prosecution;
classification process was done to assign inmates to custody level, and gang affiliation was inquired
into for safety purposes since gang activity occurred in jail, and thus, jail classification information
sought from defendant was not designed to elicit incriminating response from defendant). The
record does not show that the statements made to either Detective Gibson or Lt. Nance were in
response to custodial interrogation. Appellant made the statement to Lt. Nance and signed the self-admission form as part of the normal booking process and there is nothing in the record establishing
the statements were in response to a question designed to elicit an incriminating response. Detective
Gibson could not recall the circumstances in which Appellant made the statement to him. The record
does not reflect that Appellant's statements were subject to objections based on either Article 38.22
or Miranda. Consequently, counsel did not render deficient performance by failing to raise these
objections.
Appellant offers three arguments regarding the admission of State's Exhibit 15, the jail
record. First, he asserts that trial counsel failed to review the record before it was admitted. This
assertion is contrary to the record. Trial counsel established during cross-examination that the
witness had given the records to defense counsel to review that morning. Further, trial counsel
indicated that she was familiar with the contents of State's Exhibit 15 by establishing that it
contained admissions by Appellant that he had an addiction to heroin and he had never been arrested
for engaging in organized criminal activity. Second, Appellant argues that trial counsel should have
made a hearsay objection to admission of the jail record because it does not fall within the exception
to the hearsay rule found in Tex.R.Evid. 803(8)(B). The jail record, State's Exhibit 15, was
admitted pursuant to Tex.R.Evid. 803(6), not Rule 803(8)(B). Jail records have been held
admissible under Rule 803(6). See Jackson v. State, 822 S.W.2d 18, 30-31 (Tex.Crim.App.
1990)(defendant's jail record, including numerous transfers to different cell blocks, including
segregated cells, and reasons for some transfers, such as fighting and violating jail rules, was
admissible as business record); De La Paz v. State, 901 S.W.2d 571, 584 (Tex.App.--El Paso 1995,
pet. ref'd)(defendant's booking record was admissible under Rule 803(6)). Third, Appellant
contends that the criminal history reflected in State's Exhibit 15 was not admissible under Rule
803(6). Even if Appellant is correct, the State properly introduced evidence showing Appellant's
nineteen prior convictions. Counsel may have decided under the circumstances that it would have
been futile to object to this portion of State's Exhibit 15 given the existence of admissible evidence
to prove the prior convictions.
The criminal history in State's Exhibit 15 also includes arrests where a prosecution or
conviction apparently did not follow. The record does not reflect why counsel failed to object to this
portion of State's Exhibit 15. Even assuming that counsel had no valid trial strategy for failing to
make a valid objection to the admission of the arrest history, Appellant has not shown that he was
prejudiced as required by Strickland. Given the overwhelming evidence of guilt and Appellant's
lengthy criminal history, we do not find that there is a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different. For these reasons,
Appellant has failed to carry his burden of establishing ineffective assistance of counsel. We
overrule Issues One and Two and affirm the judgment of the trial court.
May 20, 2009
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment
(Do Not Publish)
1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2. State's Exhibit 15 reflects that Appellant was also being held on a revocation proceeding.