                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-17-00246-CR


                               RUBEN RAMOS III, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 364th District Court
                                    Lubbock County, Texas
           Trial Court No. 2015-407,824, Honorable William R. Eichman II, Presiding

                                        October 18, 2018

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


      Ruben Ramos III, appellant, pleaded guilty to murder1 and a jury assessed

punishment at life in prison. Appellant raises two issues on appeal: first, he challenges

the trial court’s admission of a videotaped conversation between him and his sister, and

second, he asserts that the imposition of a life sentence constitutes cruel and unusual

punishment. We affirm.




      1   TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
                                         Background


          On October 13, 2015, Nakasha Nolan was stabbed to death in her car outside an

apartment complex in Lubbock, Texas. A witness saw appellant, whose clothes were

covered in blood, with another man near the car. Appellant ran away when he saw the

witness observing them. The following day, appellant told a friend living at the apartment

complex that he and another man had committed a murder. Appellant related that he and

the other man had stabbed the victim. Appellant went to the friend’s house, smoked

synthetic weed, and fell asleep. While he slept, his friend went next door and asked her

neighbor to call 911. The neighbor was the same person who had observed appellant

near Nolan’s car shortly after the murder. Appellant was arrested and later confessed to

Nolan’s murder. Based on appellant’s open plea of guilty, the trial court found appellant

guilty of the offense of murder and the case proceeded to the punishment phase before

a jury.


          On the Monday morning that trial began, the State filed notice that it intended to

introduce evidence of a videotaped conversation appellant had with his sister during her

visit at the Lubbock County Detention Center the previous day. The notice stated that the

evidence included appellant’s remarks that he fought with Nolan’s relatives while in jail,

that he might have to stab someone on his first day in prison, and that if Nolan’s family

expressed happiness with his sentence, he wanted to tell them how Nolan screamed as

he stabbed her. In a hearing outside the presence of the jury, appellant’s counsel stated

that he might need time to investigate the video and noted that he would likely object if

the video were offered into evidence.



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       On Thursday, the last day of trial, the State notified the court during a bench

conference that it intended to offer the video through its next witness. Appellant’s attorney

objected to the video’s admission under Rule 403 of the Texas Rules of Evidence.

Counsel expressed that it would be challenging to put the conversation into context and

that the evidence would cause confusion on the part of the jury. The trial court responded

that appellant could clear up any contextual concerns by calling appellant’s sister or

appellant to the stand. The video was subsequently admitted into evidence and published

to the jury.


       The jury assessed appellant’s punishment at confinement in the Texas Department

of Criminal Justice for life. The trial court accepted the jury’s verdict and appellant was

sentenced accordingly. This appeal followed.


                                           Analysis


Issue 1: Admission of Jail Visit Video


       In his first issue, appellant asserts that the trial court erred by allowing the State to

introduce the video of the conversation appellant had with his sister while he was in jail

awaiting trial. Appellant argues that statements in the video of the jail visit inflamed the

jury and confused the issues, contributing to the jury’s assessment of a life sentence. We

review a trial court’s decision to admit or exclude evidence under the abuse of discretion

standard. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial judge

abuses his discretion when his decision falls outside the zone of reasonable

disagreement. Id. at 83.




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       Throughout the trial, appellant presented a theme of being remorseful about his

actions and cooperative with the investigating authorities. Appellant’s counsel elicited

testimony from detectives and other witnesses about how appellant returned to the

apartment complex the day after the murder, suggesting he wanted to be apprehended.

He also emphasized that appellant confessed and pleaded guilty to the crime, again

insinuating that he felt remorse for what he had done.


       The video shows that appellant told his sister that he had been in fights with two

of Nolan’s relatives while he was incarcerated awaiting trial.         Appellant remarked,

somewhat flippantly, that he might have to stab somebody on his first day in the Texas

Department of Criminal Justice. He also stated that he had considered, but then rejected,

the idea of telling Nolan’s family about how Nolan screamed while she was being stabbed

if Nolan’s family appeared to be happy with the sentence he received at trial. Finally,

appellant suggested that his “homeboys” would eventually retaliate against the people

who turned him in to the authorities.


       The State argues that appellant’s statements in the video were properly admitted

to rebut appellant’s claimed remorse and also to show his bad character. While appellant

acknowledges that some of his statements were likely probative of the sentence he

should have received, he maintains that the probative value is outweighed by the danger

of unfair prejudice.


       A jury “has a valid interest in knowing whether appellant is peaceful and law-

abiding or whether he is destructive, mischievous, violent or assaultive in order to properly

assess a just and fitting punishment.” Palmer v. State, 716 S.W.2d 174, 176 (Tex. App.—



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Houston [14th Dist.] 1986, pet. ref’d). However, under Rule 403 of the Texas Rules of

Evidence, a court “may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, [or] confusing the issues . . . .” TEX. R.

EVID. 403. Rule 403 favors the admission of relevant evidence and presumes that

relevant evidence will be more probative than prejudicial. Murray v. Tex. Dep’t of Family

& Protective Servs., 294 S.W.3d 360, 368 (Tex. App.—Austin 2009, no pet.).


         The factors to be considered by the trial court in determining whether Rule 403

bars the admission of otherwise relevant evidence include: (1) the probative value of the

evidence, (2) the potential to impress the jury in some irrational, yet indelible way, (3) the

time needed to develop the evidence, and (4) the proponent’s need for the evidence.

Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g). We

conclude that these factors weigh in favor of the trial court’s decision to allow the video

into evidence. The evidence had probative value in that it helped the jury decide whether

appellant was peaceful and law-abiding. While appellant’s comments on the video were

offensive and insensitive, they were not so inherently inflammatory that the evidence

would be likely to cause the jury to act in an irrational, indelible way. The evidence did

not take long to present to the jury; the video itself was approximately twenty minutes

long, only a small portion of the four-day trial. The State had a need for the evidence as

it tended to rebut appellant’s characterization of himself as remorseful.


         The trial court acted within its discretion by admitting the video evidence as

probative of appellant’s character and the issue of remorse. We overrule appellant’s first

issue.



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Issue 2: Cruel and Unusual Punishment


        In his second issue, appellant contends that the life sentence imposed by the court,

although within the statutory range of punishment,2 nonetheless constitutes cruel and

unusual punishment in violation of the U.S. and Texas Constitutions. Appellant argues

that his sentence is grossly disproportionate given that his previous offenses were

nonviolent and that he presented mitigating evidence reflecting a troubled past and

remorse for his actions.         In response, the State asserts that appellant waived this

complaint by not objecting to the sentence at trial.


        As a general rule, an appellant cannot assert error pertaining to his sentence or

punishment when he failed to raise such an error in the trial court. Mercado v. State, 718

S.W.2d 291, 296 (Tex. Crim. App. 1986). The record reveals that appellant made no

objection to the sentence, either at the time of sentencing or in any post-trial motion,

based upon the contention that it was disproportionate or violated the prohibition against

cruel and unusual punishment. Under our rules of appellate procedure, the trial court

must be made aware of any complaint via a timely objection or motion stating the

objection and requesting a ruling. TEX. R. APP. P. 33.1(a)(1). The failure to make an

objection or motion results in a waiver of the complaint on appeal, and this includes

complaints about cruel and unusual punishment. Wise v. State, 223 S.W.3d 548, 554

(Tex. App.—Amarillo 2007, pet. ref’d). Because appellant did not preserve this complaint

for review on appeal, we overrule appellant’s second issue.




        2As a first-degree felony, murder is punishable by confinement for life or for any term of not more
than ninety-nine years or less than five years. TEX. PENAL CODE ANN. §§ 12.32(a), 19.02 (West 2011).

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                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.


                                                       Judy C. Parker
                                                          Justice


Do not publish.




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