                           NUMBER 13-13-00563-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ALICE RAMOS,                                                              Appellant,

                                          v.


THE STATE OF TEXAS,                                                       Appellee.



                   On appeal from the 25th District Court
                       of Gonzales County, Texas.


                        MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
             Memorandum Opinion by Justice Longoria

      This appeal arises out of appellant Alice Ramos’s open plea of guilty to one count

of felony murder and one count of intoxication assault. See TEX. PENAL CODE ANN. §§

19.02(b)(3), 49.07 (West, Westlaw through 2013 3d C.S.). By her first issue, appellant
contends that her rights to due process and against compelled self-incrimination were

violated when the State cross-examined her with statements she made during an

interview for a pre-sentence investigation report (PSI). See U.S. CONST. amends V, XIV.

By her second issue, appellant argues that her trial counsel rendered ineffective

assistance for failing to object when the State referred to her statements in the PSI

interview and for other alleged errors and omissions. We affirm as modified.

                                      I. BACKGROUND

      The State charged appellant by indictment with intoxication assault and felony

murder with the underlying felony of driving while intoxicated (DWI). See TEX. PENAL

CODE ANN. §§ 49.07, 19.02(b)(3). Appellant entered an open plea of guilty to both counts.

During the punishment trial, the State cross-examined appellant with a statement she

made in the PSI interview that she was angry at her friend Martinez for allowing her to

drive despite the amount of alcohol she consumed beforehand. Defense counsel did not

object. According to appellant, she and Martinez routinely consumed alcohol together.

Martinez was always the designated driver for the pair due to appellant’s four previous

convictions for DWI, but Martinez did not drive appellant the night of the car crash that

gave rise to the charges in this case. One of appellant’s prior instances of DWI resulted

in a car accident when appellant was driving in the lane of oncoming traffic on the

highway, which is essentially the same circumstances as the accident in this case.

      The trial court assessed concurrent sentences of seventy-five years’ imprisonment

on the felony-murder charge and ten years’ imprisonment on the intoxication assault

charge. Appellant filed a motion for new trial on the basis of ineffective assistance of

counsel and a separate motion for reconsideration of sentence. The trial court judge



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denied both motions following a single hearing. This appeal followed.1

                                               II. PSI INTERVIEW

         As a preliminary matter, the State asserts that appellant failed to preserve error

because she did not object to the allegedly improper use of the PSI interview at the

punishment trial. We agree.

        To preserve a complaint for appellate review, a party must make a timely request,

objection, or motion and obtain an adverse ruling from the trial judge. TEX. R. APP. P.

33.1(a); Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). The necessity

to preserve error applies even to most constitutional claims. Saldano v. State, 70 S.W.3d

873, 887 (Tex. Crim. App. 2002). We understand appellant as conceding that she did not

object in the trial court but asking us to hold that she was not required to object because

improperly referring to the PSI was structural error. See Arizona v. Fulminate, 499 U.S.

279, 310 (1991) (holding that harmless error analysis cannot be applied to certain

constitutional violations that are considered structural). However, Texas courts have held

that Fifth Amendment violations associated with a PSI are not structural error and have

required a specific objection to preserve error. Collins v. State, 378 S.W.3d 629, 631

(Tex. App.—Houston [14th Dist.] 2012, no pet.); Reyes v. State, 361 S.W.3d 222, 231

(Tex. App.—Fort Worth 2012, pet. ref'd). Here, appellant did not object to the State’s use

of appellant’s statements in the PSI during cross-examination and therefore has not

preserved her argument for our review. See Layton, 280 S.W.3d at 238–39.

        Even if appellant had objected, we would hold that the trial court would not have

erred by allowing the State to use the PSI during its cross-examination of appellant. We


        1 The trial court judge specifically certified that appellant had the right to appeal. See TEX. R. APP.
P. 25.2(d).

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recently rejected a very similar argument in Alvarado v. State, where the appellant argued

that he did not waive his right against self-incrimination either at the sentencing hearing

or before a probation officer conducted the PSI interview. Alvarado v. State, No. 13-13-

00083-CR, 2013 WL 9808041, at **1–2 (Tex. App.—Corpus Christi Dec. 5, 2013, no pet.)

(mem. op., not designated for publication). There, as here, the appellant relied on Mitchell

v. United States, which held that a defendant retains the right to refrain from self-

incrimination during sentencing. 526 U.S. 314, 319 (1999). Following our decision in

Alvarado, we agree the right against self-incrimination persists during sentencing, but

Mitchell did not address PSIs. See id. There is no requirement that appellant be warned

of her right to refrain from self-incrimination prior to submitting to a routine, authorized

PSI.2 Garcia v. State, 930 S.W.2d 621, 624 (Tex. App.—Tyler 1996, no pet.); Edwards

v. State, 652 S.W.2d 519, 519–20 (Tex. App.—Houston [1st Dist.] 1983, pet. ref'd); see

Alvarado, 2013 WL 9808041, at **2–3. Therefore, if appellant had objected, the trial court

would not have erred in allowing the State to cross-examine appellant with the statements

she made during the PSI interview even if the interviewing probation officer failed to warn

appellant of her right against self-incrimination prior to the interview. See Garcia, 903

S.W.2d at 624; Edwards, 652 S.W.2d at 519–20. We overrule appellant’s first issue.

                               III. INEFFECTIVE ASSISTANCE OF COUNSEL

        By her second issue, appellant asserts that her counsel rendered constitutionally

ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

        A. Standard of Review and Applicable Law

        Under Strickland, appellant has the burden to show by a preponderance of


        2  The record is silent on whether or not appellant was admonished of her right against self-
incrimination prior to the PSI interview. We assume without deciding that appellant was not so admonished.

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evidence that: (1) trial counsel’s representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that the result of the proceeding

would have been different but for the attorney’s deficient performance. Id.; see Ex parte

Martinez, 195 S.W.3d 713, 726–27 (Tex. Crim. App. 2006). “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Cox v. State, 389

S.W.3d 817, 819 (Tex. Crim. App. 2012) (quoting Strickland, 466 U.S. at 694). We may

address either prong first, and if an appellant fails to prove one prong of the test, we need

not address the other prong. Strickland, 466 U.S. at 687.

       When evaluating a claim of ineffective assistance, we look at the totality of

counsel’s representation and the particular circumstances of each case. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Our review is highly deferential to trial

counsel, avoiding the deleterious effects of hindsight and indulging a strong presumption

that the representation counsel provided was within the wide range of reasonable

professional assistance. Id. Allegations of ineffectiveness must therefore be “firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.

1996)).

       The Texas Court of Criminal Appeals has explained that “trial counsel should

ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone

v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)). Unless counsel had an opportunity

to explain his trial strategy, we will “not find deficient performance unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.”



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Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (internal quotation

marks omitted).

        B. Analysis

        Appellant argues that her counsel was ineffective because: (1) counsel did not

ensure appellant fully understood the State’s offer of a sentencing cap of no more than

fifty years before advising her to reject it; (2) counsel did not call “key witnesses” to offer

mitigation evidence; and (3) counsel failed to object when the trial court did not give either

party an opportunity for closing argument.3 After thorough consideration of the record,

we reject appellant’s argument that her trial counsel’s assistance was constitutionally

ineffective.

        By her first ground, appellant asserts that her decision to enter an open plea was

involuntary because counsel did not ensure that she understood the State’s offer of a

sentencing cap of no more than fifty years. See Ex parte Moussazadeh, 361 S.W.3d 684,

689 (Tex. Crim. App. 2012) (observing that counsel’s professionally unreasonable advice

may make a plea involuntary). However, even if we assume that trial counsel’s advice

was ineffective, we hold that appellant cannot demonstrate that she suffered prejudice.

To show prejudice from rejecting a plea offer due to counsel’s advice, appellant must

show: (1) she would have accepted the State’s offer but for counsel’s advice; (2) the

State would not have withdrawn the offer; (3) the trial court would not have refused to

accept the plea bargain. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).



          3 Appellant also asserts that her counsel was ineffective because he did not object to the State’s

use of her statements in the PSI during her cross-examination, but to show that trial counsel was ineffective
for failure to make an objection, appellant “must show that the trial judge would have committed error in
overruling the objection.” Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). We have already
held that the trial court would not have erred in overruling an objection to the use of the PSI statements.
Accordingly, appellant cannot establish ineffective assistance on this basis. See id.

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Appellant testified to the first prong during the hearing on the motion for new trial, but she

has made no attempt to establish the other two prongs of the test. See id. We accordingly

reject appellant’s argument that her trial counsel performed ineffectively in this respect.

       Regarding trial counsel’s failure to call “key witnesses” to offer mitigation evidence,

trial counsel testified that appellant’s daughter, son, and niece were present during the

sentencing hearing and would have provided mitigating testimony regarding how

appellant’s alcohol use increased following the suicide of her longtime boyfriend. Trial

counsel also stated he could have asked appellant herself to discuss those matters during

her testimony. Whether to call certain witnesses is largely a matter of counsel’s trial

strategy. Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref'd). The decision not to call certain witnesses may be a strategically sound one if the

attorney determines that their testimony would be more harmful than helpful. Id.; Shanklin

v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [14th Dist.] 2005, pet. dism’d).

Counsel testified during the hearing on the motion for new trial that he had certain

discussions with some of those witnesses, but he did not address his reasons for not

calling them to testify or for not asking appellant to discuss these matters during direct

examination. Assuming without deciding that counsel’s assistance was deficient, we

conclude that appellant has not established a reasonable probability that the result of the

punishment trial would have been different. See Strickland, 466 U.S. at 687. The State

presented evidence that appellant had been convicted of DWI on numerous prior

occasions. Two of those occasions involved a car accident, one of which had very similar

circumstances to the present case. Moreover, during the portion of the post-verdict

hearing devoted to appellant’s motion for reconsideration of sentence, appellant testified



                                              7
regarding how the suicide of her boyfriend affected her mental state and alcohol use.

Appellant’s motion for reconsideration also described the content of the testimony of the

other witnesses. After considering appellant’s testimony and the motion’s description of

the testimony that appellant’s daughter, son, and niece would have given, the trial court

judge commented that he “remember[ed] well the circumstances of this case, the plea,

and the sentencing,” and denied the motion for reconsideration.            Based on all the

foregoing, we conclude that appellant has not raised a probability that the result of the

proceeding would have been different but for counsel’s conduct that is sufficient to

undermine confidence in the outcome. See Cox, 389 S.W.3d at 819; see also Ex parte

Martinez, 195 S.W.3d at 731 (holding that failure to present more extensive mitigation

testimony was not prejudicial because of the strength of the aggravating factors present

in the case).

       For the same reason, we reject appellant’s assertion that her counsel was

ineffective for failing to object when the trial court did not give either side the opportunity

to present closing argument. The decision to not offer closing argument may be based

on several strategic considerations, such as the perceived mood of the trial court, to

prevent the State from rebutting the closing argument, or if closing argument would be

cumulative of the appellant’s testimony. Habib v. State, 431 S.W.3d 737, 742 (Tex.

App.—Amarillo 2014, pet. ref'd). Because counsel could have based his decision not to

request closing argument on one of these considerations, we conclude that appellant is

unable to overcome the strong presumption that her counsel provided professionally

reasonable assistance. See Thompson, 9 S.W.3d at 813; Habib, 431 S.W.3d at 742. We

accordingly reject appellant’s argument in this regard.



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       We overrule appellant’s second issue.

                                      IV. MODIFICATION

       Our review of the record has revealed a mistake in the judgment of conviction on

count 1, felony murder. Appellant was indicted for felony murder, but under the heading

“Statute for Offense” the judgment cites section 19.02(b)(1), which is the provision

involving premeditated murder. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw

through 2013 3d C.S.). This Court may modify the record to make it speak the truth when

we have the necessary information to do so. TEX. R. APP. P. 43.2(b); French v. State,

830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We therefore modify the judgment of

conviction on Count 1 to reflect the correct statutory provision under which appellant was

charged, section 19.02(b)(3). See TEX. PENAL CODE ANN. § 19.02(b)(3).

                                       V. CONCLUSION

       We affirm the judgment of the trial court as modified.




                                                NORA L. LONGORIA
                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
13th day of November, 2014.




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