                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00062-CR


ROBERT RAMIREZ                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                    TRIAL COURT NO. 1346024R

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Robert Ramirez appeals from his conviction for aggravated

assault with a deadly weapon. In two issues, Appellant argues that the evidence

is insufficient to support a finding that he had inflicted or had caused the serious




      1
       See Tex. R. App. P. 47.4.
bodily injury alleged in the indictment and that he had received ineffective

assistance of counsel. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On March 1, 2012, Jose Portillo was working on the roof of his restaurant

at 4221 Hemphill Street when he noticed someone lying on the ground. Portillo

got down from the roof and found Ricky Soto “in pretty bad shape.”2 Portillo said

that Soto was so swollen and bloody that he did not initially recognize Soto until

people around him said, “[H]ey, that’s Ricky.”      Soto was conscious and was

moaning loudly that his ribs hurt. Portillo called 911 at 3:55 p.m., and Medstar

arrived shortly thereafter and transported Soto to the hospital.

      The police responded to the scene around 4:22 p.m. and found no

evidence of a fight. The police learned from homeless people in the area3 that

Medstar had come and had already left the scene, but the police formed the

impression that no one had been taken to the hospital. Later that night, however,

the police were notified that a victim from the Hemphill area had been

transported by Medstar to John Peter Smith Hospital earlier in the day, that he

had died, and that his body had been taken to the medical examiner’s office.




      2
     Portillo testified that he knew Soto because Soto had performed
handyman work at the restaurant.
      3
       The record revealed that homeless people were known to congregate in
the area behind the restaurant.


                                         2
      Detective Thomas Boetcher inspected Soto’s body at the medical

examiner’s office. Detective Boetcher testified that Soto had a large “bleeding

area” under his skin that was black and blue; some superficial cutting on his face,

on his left cheek, around his left ear area, and on his chest cavity; a bloody nose;

and a cut lip.     Detective Boetcher testified that based on his training and

experience as a police officer of thirty-two years, Soto’s injuries were consistent

with someone who had been punched or kicked multiple times.               Detective

Boetcher testified that this constituted serious bodily injury.

      After observing the body, Detective Boetcher went to the location where

Soto was found and talked with some of the homeless people who were behind

the restaurant. They said that Zacarius Guzman (also known as Jalisco) might

have seen the assault. Detective Boetcher met with Jalisco, and he pointed out

Appellant as the person he had seen assault Soto.4

      Detective Boetcher spoke with Appellant on March 2, 2012, and observed

that he had a cut on his lip. Detective Boetcher asked Appellant if he would

come talk to him at the police department about a fight that he was allegedly

involved in the previous day, and Appellant agreed to speak with him. During his

interview, Appellant initially denied involvement in an assault on Soto, saying that

he had fought a black man. Appellant later admitted that he had been involved in

two fights with Soto on March 1, 2012, and that his purpose in going back for the


      4
       Although subpoenaed, Jalisco did not appear at the trial.


                                           3
second fight was to get revenge for the first fight in which Soto had punched him

in the face six times. Appellant said that he had hit Soto six times, including once

in the side of the head, and had kicked him twice in the side.          A video of

Appellant’s interview was played for the jury, and his written statement was read

into the record. In his written statement, Appellant stated,

             I, Robert Ramirez, acknowledge that I am not in custody and I
      am free to leave at any time. I have voluntarily chosen to make the
      following statement:

      MY FULL NAME IS ROBERT RAMIREZ. I AM 44 YEARS OF AGE.
      MY DATE OF BIRTH IS 07/21/1968. I LIVE AT 4001 S ADAMS
      STREET, FORT WORTH, TX 76115. I HAVE COMPLETED 10
      YEARS OF SCHOOL. I CAN READ, WRITE, AND UNDERSTAND
      THE ENGLISH LANGUAGE.

      I mostly live on the street but sometimes I go to my wife’s house at
      4001 S Adams. Yesterday I was behind the store on Hemphill
      where the police found me today. It’s hard for me to remember but
      there were a couple people there with me, Hector Rene and Bobby
      was there and I don’t know his last name. There was a girl there
      named Susana and I can’t remember who else. I was drinking at the
      time and Ricky walked up. I don’t know Ricky’s last name but is
      homeless and I’ve know[n] him for about 3 years. I was squatting
      down against the building when Ricky walked up and punched me in
      the face. He hit me about 6 times with his fists. I stood up and we
      started fighting. I punched him one time with my fist and kicked him
      with my foot twice in the side. I told him I was going to walk it off.
      Ricky stood there as I walked away. But I told him I’m going to walk
      it off and I’m not going to forget what you did to me and l’m going to
      come back for you.

             I walked around the block and then I walked back to the store.
      I found him behind the store lying down. I asked him if he was ready
      for me, it was about two hours later. He stood up and then we
      started fighting again. I hit him first with my fist and then he punched
      me in the mouth. Eventually we both ended up on the ground
      wrestling. We fought for about 2–3 minutes. I know I kicked him
      both times on the same side of his body. I asked him what this was


                                         4
      all about anyway, and he didn’t say anything. I went and bought him
      a beer and he took it.

             We got into the fight the first time about 1:30 or 2:00 and
      about 3:30 [or] 4:00 we got into the second fight. He was my best
      friend. I wasn’t trying to kill him.

After talking to Appellant, Detective Boetcher—noting that Soto had told Medstar

that he had been attacked by three people—did not believe the statement in the

investigator’s report was accurate. Moreover, Detective Boetcher testified that

his investigation did not lead him to believe that the second fight was mutual

because of the time span between the first fight and the second fight; the degree

of force used in stomping Soto and hitting him; and the bruises to Soto’s armpit,

to the side of his body, and to his face.

      Jesse Vasquez, a friend of both Appellant and Soto, testified that he had

spent “[p]retty much all day” with Appellant on March 1, 2012. Vasquez said that

they drank beer together for a couple of hours in the alley behind Rocky’s store

before they ran into Soto. Vasquez said that Jalisco and Soto came up to them

and that Soto “got in [Appellant’s] face and looked at him straight in his face like

this, and didn’t say nothing. And all of a sudden[,] he just started punching him in

his face.” Appellant did not do anything; he did not have a chance.5 Vasquez

told Soto that if he hit Appellant again, Vasquez was going to hit Soto, and Soto


      5
        When asked whether he had heard Appellant say something to Soto like,
“I’m going to walk this off, but I’m coming back for you,” Vasquez testified that
Appellant did not say anything like that. Vasquez said that Appellant only asked
Soto, “[W]hy did you do that?”


                                            5
and Jalisco took off down the alley toward an establishment referred to as

Ernesto’s.

      Vasquez and Appellant went to a store on Henderson and Bolt, and

Vasquez bought Appellant a twenty-four-ounce beer to “cool off.” After drinking

for a couple of hours, Appellant told Vasquez that he was hungry, so they went

toward the alley and ran into Soto and Jalisco, who were sitting down. Soto saw

Appellant coming and got up from his seated position, and the two “went at each

other” and wrestled. Vasquez testified that he ultimately told Appellant that was

enough and that Appellant listened to him. Vasquez said that Soto was shaking

his head when they left.

      Michelle Cantu, who knew Appellant from the streets and through her ex-

boyfriend Jose Martinez, testified that she was with her ex-boyfriend on March 2,

2012, when they ran into Appellant. Cantu recalled that Appellant had told them

that he had just killed his best friend and that he was about to go on a rampage.

      Dr. Susan Roe, a deputy medical examiner at the Tarrant County Medical

Examiner’s Office, testified that Dr. Lloyd White had conducted the autopsy on

Soto on March 2, 2012,6 and that she had conducted a peer review of Soto’s

autopsy. Dr. Roe opined that the cause of Soto’s death was hemorrhagic shock

due to a lacerated right kidney, due to blunt trauma of the abdomen, due to



      6
      Dr. White was no longer working at the Tarrant County Medical
Examiner’s Office at the time of the trial.


                                        6
assault.7   Dr. Roe testified that Soto’s lacerated kidney was the result of an

assault, was consistent with being kicked or being hit, and constituted serious

bodily injury.

      After hearing the above evidence, the jury found Appellant guilty of

aggravated assault with a deadly weapon causing serious bodily injury as alleged

in the indictment and proceeded to the punishment phase.              After hearing

evidence during the punishment phase and finding the habitual paragraphs in the

indictment to be true, the jury assessed Appellant’s punishment at twenty-five

years’ confinement, and the trial court sentenced him accordingly.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Appellant challenges the sufficiency of the evidence to

support a finding that he had inflicted or had caused serious bodily injury to Soto.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

      7
       Dr. Roe noted that Soto suffered from cirrhosis and that Soto’s “hospital
admission blood” revealed a high ethanol level of 0.316 grams percent. Dr. Roe,
however, ruled out cirrhosis and the high ethanol level as potential causes of
Soto’s death.


                                         7
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

            B. Law on Aggravated Assault with a Deadly Weapon

      A person commits the offense of aggravated assault with a deadly weapon

if he intentionally, knowingly, or recklessly causes serious bodily injury to another

and uses or exhibits a deadly weapon—here, a hand or a foot—during the

commission of the assault.     See Tex. Penal Code Ann. § 22.01(a)(1) (West

Supp. 2014); § 22.02(a)(2) (West 2011); see also id. § 1.07(a)(17)(B) (West

Supp. 2014) (defining “deadly weapon” as anything that in the manner of its use


                                         8
is capable of causing death or serious bodily injury).        “Serious bodily injury”

means “bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.” Id. § 1.07(a)(46).

                                    C. Analysis

      Appellant concedes that his statements to police and Vasquez’s testimony

prove that he was involved in a physical altercation with Soto but argues that the

severity of Soto’s injuries does not correspond with the description of the fight

given in Appellant’s statements or in Vasquez’s testimony.             After hearing

testimony concerning the external and internal injuries on Soto’s body and after

seeing pictures documenting the injuries, the jury heard testimony from both

Detective Boetcher and Dr. Roe that the injuries Soto had suffered were

consistent with being kicked or hit multiple times, which Appellant admitted to

doing, and that the injuries constituted serious bodily injury.

      Appellant further argues that Soto’s injuries were likely inflicted in a

subsequent altercation by the three attackers that Soto spoke of when he was

being transported by Medstar. Other than this statement, however, the record

contains no indication of a third fight in which Soto was injured by multiple

attackers. Based on the timeline of events—the second fight occurred between

3:30 p.m. and 4:00 p.m., and the 911 call came in at 3:55 p.m.—the jury could

have determined that there was little possibility that a third altercation had

occurred. Furthermore, Appellant described Soto as his best friend in his written


                                          9
statement, and Cantu testified that Appellant told her the day after the fights that

he had killed his best friend.

      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have found the essential elements of the crime—that

Appellant committed aggravated assault with a deadly weapon, either his hand or

his foot, and caused serious bodily injury to Soto—beyond a reasonable doubt.

See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638. We

overrule Appellant’s first issue.

                      IV. EFFECTIVE ASSISTANCE OF COUNSEL

      In his second issue, Appellant argues that he received ineffective

assistance of counsel.

                                 A. Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation was deficient

and that the deficiency prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,

307 (Tex. Crim. App. 2013).         An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.


                                          10
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,

9 S.W.3d at 813–14.       In evaluating the effectiveness of counsel under the

deficient-performance prong, we look to the totality of the representation and the

particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

is whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d

at 307–08.

      It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. Menefield, 363 S.W.3d at

593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

“should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not

given that opportunity, we should not conclude that counsel’s performance was

deficient unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Nava, 415 S.W.3d at 308.

      The prejudice prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,


                                         11
appellant must show there is a reasonable probability that, without the deficient

performance, the result of the proceeding would have been different. Id. at 694,

104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding in which the

result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.

        B. Appellant Did Not Establish His Claims of Ineffectiveness

      Here, Appellant complains that his trial counsel was ineffective because

she failed to challenge the admissibility of his videotaped interview; Appellant

argues that without his statement, there is no case. Appellant further complains

that defense counsel failed to object to leading questions, failed to request a jury

charge on self-defense or mutual combat, and allowed the deputy medical

examiner to testify from the autopsy report.

      Although Appellant filed a motion for new trial, he did not raise ineffective

assistance of counsel in his motion, and no hearing was held on the motion.

Consequently, any trial strategy that Appellant’s trial attorney may have had for

her challenged actions is not contained in the record. Generally, a silent record

that provides no explanation for trial counsel’s actions will not overcome the

strong presumption of reasonable assistance.         See Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Scheanette v. State, 144

S.W.3d 503, 510 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 1059. Moreover,


                                        12
our review of the record does not indicate that the alleged failures that Appellant

complains of were “so outrageous that no competent attorney would have

engaged in [them].” Nava, 415 S.W.3d at 308. Compare Fuller v. State, 224

S.W.3d 823, 836 (Tex. App.—Texarkana 2007, no pet.) (holding that trial

counsel’s conduct in allowing State unfettered and unchecked bolstering of victim

was so outrageous that no competent attorney would have engaged in it), with

Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007) (holding that trial

counsel’s failure to object to hearsay testimony that allegedly violated

Confrontation Clause did not constitute ineffective assistance of counsel because

his reasons for his actions did not appear in record and could have been part of

reasonable trial strategy), Wheeler v. State, 433 S.W.3d 650, 655 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d) (stating that “it is sound trial strategy for

opposing counsel to choose not to object to leading questions when the evidence

will come in anyway” and holding that appellant had not established that the

testimony sought in questioning was inadmissible or would not have otherwise

come into evidence even if his trial counsel had objected, the trial court had

sustained the objection, and the State had rephrased its questions), Weiser v.

State, No. 14-02-01304-CR, 2003 WL 22996924, at *7 (Tex. App.—Houston

[14th Dist.] Dec. 23, 2003, pet. ref’d) (mem. op., not designated for publication)

(holding that appellant failed to show that trial counsel was ineffective by not

objecting to an allegedly inadmissible oral statement where record revealed that

statement was voluntary and was not the product of interrogation), and


                                        13
Blakemore v. State, No. 03-96-00362-CR, 1997 WL 705467, at *3 (Tex. App.—

Austin Nov. 13, 1997, no pet.) (not designated for publication) (stating that it

cannot be ineffective assistance of counsel to fail to request self-defense

instruction to which defendant is not entitled). Based on the record before us, the

strong presumption of reasonable assistance, and the absence of any

explanation regarding trial counsel’s strategy, we cannot say that Appellant has

met his burden under the deficient-performance prong to show by a

preponderance of the evidence that his trial counsel’s alleged failures fell below

the standard of prevailing professional norms or were “so outrageous that no

competent attorney would have engaged in [them].” See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 308.

      Furthermore, even if we could somehow construe the alleged deficiencies

as meeting the deficient-performance prong of Strickland, Appellant has not

shown a reasonable probability that, without the deficient performance, the result

of the proceeding would have been different. See Strickland, 466 U.S. at 694,

104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.         Excluding the complained-of

videotaped statement, the medical examiner’s testimony, and the testimony that

came in as a result of the allegedly leading questions, the jury still had before it

Appellant’s voluntary written statement in which he admitted to punching and

kicking Soto multiple times, Vasquez’s testimony corroborating Appellant’s

statement, and Detective Boetcher’s testimony that Soto’s serious bodily injuries

were the result of Appellant’s punching and kicking him. And even if Appellant’s


                                        14
trial counsel had requested, and the trial court out of an abundance of caution

had included, a self-defense instruction in the jury charge, the jury could not have

found beyond a reasonable doubt that Appellant reasonably believed that force

was immediately necessary to protect himself from Soto; the evidence showed

that Appellant was the aggressor in the second fight. See Nichols v. State, No.

02-13-00566-CR, 2014 WL 7779272, at *6 (Tex. App.—Fort Worth Feb. 5, 2014,

no pet.) (mem. op., not designated for publication) (stating that there was no

evidence in the record that appellant possessed a reasonable belief that deadly

force was necessary to protect against drug dealer’s or anyone else’s use of

deadly force).   Appellant therefore has not satisfied the prejudice-prong of

Strickland. 466 U.S. at 687, 104 S. Ct. at 2064.

      Because Appellant has not satisfied either prong of Strickland, we overrule

his second issue. See id.

                                 V. CONCLUSION

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 21, 2015



                                        15
