                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-16-00511-CR

                                        Josef Dalen RAMOS,
                                              Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR3918
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: January 31, 2018

AFFIRMED

           On June 22, 2016, after finding Appellant Josef Ramos guilty of two counts of sexual

assault, a Bexar County jury assessed punishment at six years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice, suspended and probated for a period of six

years. On appeal, Ramos contends his trial counsel provided ineffective assistance of counsel and

the State offered an improper jury argument. We affirm the trial court’s judgment.
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                          FACTUAL AND PROCEDURAL BACKGROUND

       On August 23, 2014, Ramos and A.F., a female co-worker, and several other friends met

at a bar. A.F. drank several glasses of wine and a few shots of alcohol. The group left for a

different bar where A.F. was refused service based on her level of intoxication. After sitting and

talking outside of the second bar, the group migrated to a fast food restaurant. A.F. drove her

vehicle, and Ramos was the passenger in a different vehicle.

       In the parking lot, the group again sat around talking. Two of the women left, and then one

other man left. Ramos and A.F. were the only two remaining; they were sitting in her car talking

when the others left. At some point A.F. and Ramos left the parking lot in A.F.’s vehicle; A.F.

contends Ramos was driving and he contends A.F. was driving. They drove to a secluded, dead-

end neighborhood street. By all accounts, A.F. was in an inebriated state. A.F. also testified

Ramos forced her to ingest cocaine; he grabbed her “by [her] hair and put [her] head down to

[ingest the cocaine].”

       A.F. testified she “blacked out,” and remembered only a few details of the evening. “[She]

told him to stop” several times, but she could not move with his body weight on her. She

remembered being out of the car and trying to put her clothes back on and being in intense pain.

The next thing she remembered was being back in the parking lot of the fast food restaurant and

Ramos’s friend was picking him up and asking her if she was okay. A.F. called several friends.

The police were called and A.F. was taken to the hospital for a sexual assault examination. The

nurse collected evidence and saw trauma consistent with sexual assault of A.F.’s sexual organ and

anus. The forensic scientist concluded that Ramos could not be excluded as a donor of the DNA

evidence collected from the sexual assault kit.

       Ramos testified that the encounter was consensual and occurred after A.F. made suggestive

remarks and attempted to kiss him in the parking lot of the fast food restaurant.
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        On April 6, 2015, Ramos was indicted on three counts of sexual assault. The jury found

Ramos guilty of two counts of sexual assault and assessed a punishment of six years’ confinement

in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated

for a period of six years.

        On appeal, Ramos raises two issues: (1) trial counsel provided ineffective assistance of

counsel, and (2) the trial court erred in failing to sustain his objection to improper jury argument

during the State’s closing argument.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

A.      Standard of Review

        In Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), the United States Supreme

Court set out a two-prong test to determine whether trial counsel’s representation was ineffective:

(1) “the defendant must show that counsel’s performance was deficient” and (2) “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 687, 694; accord Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App.

2013); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).

        To establish the first prong, deficient performance, Ramos must prove that his attorney’s

performance “‘fell below an objective standard of reasonableness’ under prevailing professional

norms.” Id. (quoting Strickland, 466 U.S. at 687–88); see also Ex parte Martinez, 330 S.W.3d

891, 900 (Tex. Crim. App. 2011). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome [of the proceeding].” Id. (citing Strickland, 466 U.S. at

687).

        To prove harm, Ramos “must demonstrate that he was prejudiced by his attorney’s

performance or that ‘there is a reasonable probability that, but for counsel’s unprofessional errors,



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the result of the proceeding would have been different.’” Ex parte Moore, 395 S.W.3d at 158

(footnote omitted) (quoting Strickland, 466 U.S. at 694).

       Additionally, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999); accord Burgess v. State, 448 S.W.3d 589, 602 (Tex.

App.—Houston [14th Dist.] 2014, no pet.). “There is a strong presumption that counsel’s conduct

fell within the wide range of reasonable professional assistance.” Thompson, 9 S.W.3d at 813.

Therefore, Ramos “‘must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting

Strickland, 466 U.S. at 689).

       Appellate courts further view matters “from the viewpoint of an attorney at the time he

acted, not through 20/20 hindsight.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012); accord Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014). Our review of

trial counsel’s actions is “highly deferential and presumes that counsel’s actions fell within the

wide range of reasonable and professional assistance.” Garza v. State, 213 S.W.3d 338, 348 (Tex.

Crim. App. 2007) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)); see also

Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. ref’d) (affirming

that in the absence of a developed record, an appellate court should not “speculate as to the reasons

why trial counsel acted as he did, rather a reviewing court must presume that the actions were

taken as part of a strategic plan for representing the client”). Moreover, an “appellate court should

not find deficient performance unless the challenged conduct was ‘so outrageous that no competent

attorney would have engaged in it.’” Menefield, 363 S.W.3d at 593 (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)).



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       We note the appellate record does not contain a motion for new trial or record allowing

trial counsel an opportunity to provide his reasons or strategies during trial. The Court of Criminal

Appeals explained that it should be a rare case in which an appellate court finds ineffective

assistance on a record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d

98, 103 (Tex. Crim. App. 2005).

B.     Alleged Acts of Ineffective Assistance

       1.      Failed to Exercise Peremptory Challenges

       In his first issue, Ramos contends he received ineffective assistance of counsel. He argues

his trial counsel did not further question, challenge for cause, or exercise peremptory strikes

against venire persons with perceived bias. Specifically, Ramos complains that certain venire

persons indicated they would interpret a defendant’s failure to testify as a sign of guilt, they had

been the victim of a sexual assault, they had a close relationship with the victim of a sexual assault,

they had family in prison, or they had served on a prior jury for a sexual assault case.

       Counsel’s questioning during voir dire cannot be held deficient without an inquiry into the

reasons for his actions. See Goodspeed v. State, 187 S.W.3d 390, 393–94 (Tex. Crim. App. 2005)

(holding that on an undeveloped record, counsel’s failure to ask any questions in voir dire did not

qualify as ineffective assistance, nor did counsel’s decision to use two peremptory strikes on jurors

“who had already been excused”). On the record before us, counsel actively participated in the

entire voir dire process. Although Ramos now contends some of the venire should have been

struck for cause based on their responses to how they would interpret Ramos’s refusal to testify,

the argument is irrelevant in light of the fact that Ramos did testify. Further, counsel asked the

panel questions, made statements to elicit biases from them, and set the stage for Ramos’s

argument during trial.



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       On appeal, Ramos contends trial counsel did not ask several venire members about their

bias regarding sexual assaults. Prior to trial counsel asking questions, the State elicited information

regarding the panel’s familiarity with, and feelings toward, inter alia, sexual assault. Because the

State already elicited the prejudices and biases from among the venire panel, trial counsel was not

ineffective for failing to repeat the same questions. See id. at 392 (it may be appropriate trial

strategy for defense counsel to avoid repeating prosecutor’s line of questioning on voir dire).

Counsel articulated that the State covered questions and challenges with which he was concerned.

On this undeveloped record, we cannot conclude that counsel’s actions during voir dire constitute

deficient performance. See id.

       2.      Failed to Invoke “The Rule”

       Ramos next asserts that his trial counsel was ineffective in failing to invoke “the Rule.”

According to Ramos, trial counsel’s failure to do so enabled witnesses to be present for A.F.’s

testimony. The Rule cited in Appellant’s brief refers to Texas Rule of Evidence 614. See TEX. R.

EVID. 614. Upon invocation of the Rule by either party, the court must exclude witnesses so they

cannot hear the testimony of other witnesses. Id. The purpose of this rule is to “prevent the

testimony of one witness from influencing the testimony of another.” Martinez v. State, 867

S.W.2d 30, 40 (Tex. Crim. App. 1993); accord Phillips v. State, 64 S.W.3d 458, 459 (Tex. App.—

Houston [1st Dist.] 2001, no pet.).

       The record is silent on whether any of the witnesses were actually in the courtroom when

A.F. testified. Ramos only argues that trial counsel was deficient by failing to invoke “the Rule.”

He points to no testimony by any witness that he contends caused him harm as a consequence of

any violation of “the Rule.” See Webb v. State, 766 S.W.2d 236, 239–40 (Tex. Crim. App. 1989)

(admission into evidence of testimony of adverse witness in violation of rule of evidence 614 “is

not in itself reversible error, but only becomes so where the objected-to testimony is admitted and
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the complaining party is harmed thereby). Ramos bore the burden to demonstrate from the record

that the proceedings would have been different had trial counsel invoked the Rule. See id. He

failed to do so. See id.; Thompson, 9 S.W.3d at 813.

       3.      Failure to Object to Hearsay

       During the trial phase, several witnesses testified as to statements A.F. made immediately

after the sexual assault. Ramos cites three instances, through three different witnesses, that

constituted inadmissible hearsay: (1) A.F. stated that “she was hurting”; (2) A.F. stated she was

hurting and told Ramos to stop; and (3) A.F. identified Ramos as the attacker.

       Hearsay is a statement that the declarant does not make during the course of a trial or

hearing and “is offered in evidence to prove the truth of the matter asserted.” Zuliani v. State, 97

S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing TEX. R. EVID. 801). For hearsay to be admissible,

it must fit into one of the exceptions provided in the statute or the rules of evidence. See TEX. R.

EVID. 802.

       Each of the three statements, about which Ramos complains, were made immediately after

the alleged attack. Additionally, each witness described A.F. as “scared,” “freaking out,” and

“yelling and screaming.” The rules of evidence provide that testimony regarding an “excited

utterance” is an exception to hearsay. TEX. R. EVID. 803(2); see Zuliani, 97 S.W.3d at 595. “An

excited utterance is a statement relating to a startling event or condition, made while the declarant

was under the stress of excitement caused by the event or condition.” Zuliani, 97 S.W.3d at 595.

The basis for the exception is that the offered statement “represents an event speaking through the

person rather than the person speaking about the event.” Id. For each of the three witnesses about

which Ramos complained, the State asked the proper predicate questions under evidentiary Rule

803(2). Moreover, during cross-examination, trial counsel was able use the witnesses to Ramos’s

advantage. Specifically, trial counsel portrayed one witness as relaying a different version of the
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events at trial than provided at the time of the incident, and another witness questioned A.F.’s

illegal drug use.

C.     Analysis

       We note that trial counsel was not provided an opportunity to explain his actions or

strategy. A silent record that provides no explanation for trial counsel’s actions usually will not

overcome the strong presumption of reasonable assistance. See Thompson, 9 S.W.3d at 813–14.

“We are not to second guess counsel’s strategy through hindsight, nor will the fact that another

attorney might have pursued a different course support a finding of ineffectiveness.” Blott v. State,

588 S.W.2d 588, 592 (Tex. Crim. App. 1979). The record before this court fails to establish, by a

preponderance of the evidence, that defense counsel’s challenged conduct was not reasonable

under the totality of the circumstances and prevailing professional norms. We, therefore, conclude

Ramos failed to satisfy his burden of proof to affirmatively show that counsel’s representation

“‘fell below an objective standard of reasonableness’ under prevailing professional norms.” Ex

parte Moore, 395 S.W.3d at 157.

       Additionally, Ramos failed to provide any evidence that, “he was prejudiced by his

attorney’s performance or that ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Id. at 158 (footnote

omitted) (quoting Strickland, 466 U.S. at 694). We, therefore, overrule Ramos’s appellate issues

related to ineffective assistance of counsel.

       We turn to Ramos’s issue regarding the State’s closing argument.

                                   IMPROPER JURY ARGUMENT

A.     Standard of review

       We review a trial court’s ruling on an objection to improper jury argument for an abuse of

discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Such argument does
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“not constitute reversible error unless, in light of the record as a whole, the argument is extreme

or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the

accused into the trial proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

“The remarks must have been a willful and calculated effort on the part of the State to deprive

appellant of a fair and impartial trial.” Id.

B.      Proper Jury Argument

        “It is the duty of trial counsel to confine their arguments to the record; reference to facts

that are neither in evidence nor inferable from the evidence is therefore improper.” Brown v. State,

270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (quoting Alejandro v. State, 493 S.W.2d 230, 231

(Tex. Crim. App. 1973)). Thus, “proper jury argument generally falls within one of four areas: (1)

summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument

of opposing counsel, and (4) plea for law enforcement.” Freeman v. State, 340 S.W.3d 717, 727

(Tex. Crim. App. 2011); accord Brown, 270 S.W.3d at 570; Borjan v. State, 787 S.W.2d 53, 55

(Tex. Crim. App. 1990).

C.      Argument in Question

        State:          Look, as we go through this case, I couldn’t help but think back on
                        that Stanford rape case. Because I read her letter, the 12 page letter.
                        And the press has called her “Emily Doe” to protect her liability.
                        And this passage in particular stuck out to me. And this is
                        something that Emily Doe, who is the Stanford rape survivor wrote.
                        She said, “So one year later, as predicted—”
        Defense:        I’m going to object that this is not part of the evidence.
        Trial Court:    It’s overruled.
        State:           “—a new dialogue emerged. Brock had a strange new story.
                        Almost sounded like a poorly written young adult novel with
                        kissing and dancing and hand-holding and lovingly tumbling onto
                        the ground. And, most importantly, in this news story, there was
                        suddenly consent. One year after the incident he remembered, Oh,
                        yeah, by the way, she actually said yes to everything, so . . .”


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                               And I was struck by how similar the defendant’s story is.
                       All right. And that thought was further supported by Emmanuel,
                       how his story suddenly shifts two years later. Okay? Because,
                       frankly, the only real difference between this guy and this guy is
                       privilege and the state that they live in. They’re both rapists. And
                       they both think, hey, if she’s drunk, game on. And we all agree
                       that’s not right. The caveman days are behind us. You don’t get to
                       take what you want when you want it just because you want it.

D.     Analysis

       “When reviewing alleged error in a jury argument, the appellate court must analyze the

statement in light of the entire argument and not on isolated instances.” DeLarue v. State, 102

S.W.3d 388, 405 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Ramos contends the State’s

argument was outside the permissible scope of proper jury argument and denied him the right to a

fair trial. The State counters the argument was a plea for law enforcement and a response to

defense counsel’s argument.

       A prosecutor’s closing argument may not include presentation of evidence that is outside

the record. Freeman, 340 S.W.3d at 728. “Improper references to facts that are neither in evidence

nor inferable from the evidence are generally designed to arouse the passion and prejudice of the

jury and, as such, are inappropriate.” Id. (citing Borjan, 787 S.W.2d at 57). Here, Ramos argues

the State relied on a story in the national headlines; the information was neither learned nor

inferable from evidence presented in the courtroom. Assuming, without deciding the State’s

closing argument was improper and the trial court erred in failing to sustain trial counsel’s

objection, we must determine whether the error affected Ramos’s substantial rights. See id.

       Because improper jury argument is a nonconstitutional error, it must be disregarded if it

“does not affect [Ramos’s] substantial rights.” See TEX. R. APP. P. 44.2(b); Martinez v. State, 17

S.W.3d 677, 692–93 (Tex. Crim. App. 2000). A defendant’s “substantial right is affected when

the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King


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v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see also Potier v. State, 68 S.W.3d 657,

663 (Tex. Crim. App. 2002). In Martinez, the court prescribed three factors to consider when

determining if a substantial right was affected: “(1) severity of the misconduct, (2) curative

measures adopted to cure the misconduct, [and] (3) the certainty of conviction absent the

misconduct.” Id. (citing Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).

       1.      Severity of the Misconduct

       The severity of the State’s conduct is consistent with a plea for law enforcement and the

culture of rape evolving in this country. See Martinez, 17 S.W.3d at 693. The State’s argument

outlined the thought process that young, intoxicated women were open targets for men. The only

difference between Ramos and the individual that garnered national attention was the level of

privilege endowed upon the Stanford student. This argument must be considered in light of

defense counsel’s closing argument that “[A.F.] wasn’t unconscious and she didn’t resist.” He

argued that A.F.’s injuries were consistent with people that had rough sex. He asked, “where

[were] the signs of physical force?” He argued that “A.F. could not have performed the acts she

admit[ted] to if she was unconscious.” “She was aware.” He even contended the bruises are “signs

of consent, not violence.” We, therefore, conclude the State’s argument that A.F.’s inability to

consent due to intoxication or unconsciousness was an entirely legitimate point to raise before the

jury. Therefore, assuming the State’s argument was improper for referencing facts outside the

record, we conclude the severity of the misconduct was minor.

       2.      Curative Measures

       Because the trial court overruled the objection, the trial court did not provide a curative

instruction to the jury. See id. at 692. Yet, there is nothing in the record to suggest the prosecutor

highlighted the Stanford rape case evidence any more than the one time during the closing

argument.
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       3.      Certainty of Conviction

       Finally, we consider the certainty of the conviction absent the misconduct. In its simplest

terms, this case turned on whom the jury believed. If the jury believed Ramos, that A.F. consented

to the sexual acts, and that he stopped when she hesitated, then the prosecutor’s comments would

have had little weight on the jury’s verdict.

       After carefully considering the entire record, we conclude the State’s closing argument did

not affect Ramos’s substantial rights. Even assuming the jury argument was improper, we

conclude, considering the evidence supporting Ramos’s conviction, the error associated with the

improper argument was harmless. Therefore, we overrule this issue.

                                           CONCLUSION

       Having overruled each of Ramos’s issues on appeal, we affirm the trial court’s judgment.

                                                   Patricia O. Alvarez, Justice

Do Not Publish




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