Alfredo Ramirez v. State ( 2016 )

Affirm and Memorandum Opinion filed April 21, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00254-CR
ALFREDO RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1396938
MEMORANDUM OPINION
A jury convicted appellant Alfredo Ramirez of felony assault on a family
member.1 The court sentenced him to twenty years’ confinement. From that
judgment, appellant brings this appeal raising two issues: (1) the trial court erred by
limiting cross-examination to exclude evidence of the complainant’s alleged bias and
motive to testify falsely in violation of appellant’s rights under the Confrontation
Clause of the United States Constitution; and (2) the recusal-hearing judge erred by
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We have redacted personally-identifying information of the complainant of family
violence. See Tex. Code Crim. Proc. Ann. art. 57B.03(a) (West 2014).
failing to recuse a visiting judge based on the visiting judge’s prior relationship with
defense counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The complainant met appellant in August 2010, when the complainant worked
as a shipping clerk in Georgia and appellant was a truck driver from Houston. The
complainant married appellant, had a daughter with him, and moved to Houston in
February 2011. By July, 2013, their living situation had deteriorated; appellant had
been out of work, they were living in a motel, and they were surviving by
panhandling. At that time, their daughter, M.R., was 17-months old.
In response to a call regarding M.R.’s living conditions, on July 16, 2013,
Latoya Wright, a social worker from Child Protective Services (“CPS”), made a visit
to the couple’s motel room. Wright met the complainant and M.R. and noticed the
room had one bed, a small, empty refrigerator, and some canned goods. The
complainant had a broken arm and acted nervous; she denied any abuse. Wright
asked the complainant to contact appellant and ask him to return to the motel. When
appellant returned to the motel, he became “hostile” and “argumentative” with
Wright, blaming the motel owners for the facilities. At the end of the meeting, the
complainant and appellant agreed to temporarily place M.R. with appellant’s mother
through CPS. Wright invited the complainant to follow her to appellant’s mother’s
house and to assist M.R but when appellant signaled her not to go, the complainant
declined.
The complainant sat on the edge of the bed in the motel room and through the
window watched Wright drive away with M.R. The complainant testified that is
when appellant attacked her; he straddled her on the bed and covered her face with a
pillow, blocking her mouth and nose. According to the complainant’s trial testimony,
she could not breathe and felt a ringing sensation in her ears. She struggled to fight
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him off, which was difficult due to the complainant’s broken arm. When the pillow
came off the complainant’s face, appellant grabbed the back of the complainant’s
hair. Appellant put his other hand around the complainant’s throat and applied
pressure to her throat and neck. The complainant testified that she could not breathe.
She further stated that the episode caused her pain, ringing in her ears, and dizziness.
The complainant broke free from appellant and ran out of the door to her truck in the
parking lot.
The complainant went to stay with a family friend. The next day, she called
Wright and told her what had happened. The complainant’s throat was raspy and
hoarse. The complainant did not immediately report the incident to the police. She
was reluctant to file charges against appellant while M.R. was living with appellant’s
mother, in part, because appellant had family all over Mexico. The complainant was
afraid that she would never see M.R. again if she filed charges against appellant
before her daughter was in a safer CPS location.
After the incident in the motel room, the complainant received numerous text
messages from appellant. In the texts, appellant expressed remorse for hurting the
complainant. In one text, he wrote, “Don’t be scared, please. If you truly don’t want
me anymore, I understand. Just stop punishing me. God knows I never meant to hurt
you. It just got out of hand. I do need therapy, Xanax or something.” According to
the complainant, after speaking with the CPS caseworker, she quit responding to
appellant’s texts and filed for a protective order. On July 26, 2013, M.R. was
released from appellant’s mother to a friend of the complainant’s. On August 1,
2013, the complainant reported the motel incident to the Houston Police Department.
She reported to police that appellant had broken her arm previously.
Appellant was charged with felony assault on a family member. When the case
was called to trial on Friday, May 16, 2014, the parties conducted voir dire and a jury
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was selected with trial to resume on Tuesday, May 20, 2014. On Monday, May 19,
2014, the parties were notified that Judge Mendoza, who had been presiding, had
become ill and that a visiting judge, Judge Brian Rains, had been appointed to preside
over the trial. Appellant objected to Judge Rains’ assignment and filed a motion to
recuse. Judge Rains declined to recuse himself and referred the issue to an
administrative judge for further action. After conducting a hearing, the
administrative judge, Judge Carroll Wilborn, denied appellant’s motion to recuse.
The trial resumed with Judge Rains presiding. The jury found appellant guilty
of assault of a family member by impeding breathing. Several months later, on
March 2, 2015, Judge Mendoza sentenced appellant to an enhanced punishment of
twenty years’ confinement. Appellant now challenges his conviction in this appeal.
II. ISSUES AND ANALYSIS
A. Did the reviewing judge abuse his discretion by denying appellant’s
motion to recuse?
1. Standard of review
We review the denial of a motion to recuse under an abuse-of-discretion
standard. DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004); Arnold v.
State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993). A court abuses its discretion
only if its ruling is outside the “zone of reasonable disagreement” or if it fails to apply
proper guiding rules and principles. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim.
App. 1992); see Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011). Absent
a clear showing to the contrary, we presume the trial court was neutral and detached.
See Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d).
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2. The rules governing recusal
A Texas judge may be removed from a case if the judge is (1) constitutionally
disqualified, (2) subject to a statutory strike, (3) subject to statutory disqualification,
or (4) subject to recusal under rules promulgated by the Supreme Court of Texas.
Gaal, 332 S.W.3d at 452; Rhodes v. State, 357 S.W.3d 796, 799 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). Rule 18b(2) of the Texas Rules of Civil
Procedure sets forth the law specifically pertaining to recusal of judges, including
recusals in criminal proceedings. Tex. R. Civ. P. 18b(2); Gaal, 332 S.W.3d at 452–
53 & n. 12. The rule states in relevant part:
A judge shall recuse himself in any proceeding in which: (a) his
impartiality might reasonably be questioned; [or] (b) he has a personal
bias or prejudice concerning the subject matter or a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding....
Tex. R. Civ. P. 18b(2). Subsection (a) generally applies only when it appears that the
judge “harbors an aversion, hostility or disposition of a kind that a fair-minded person
could not set aside when judging the dispute.” Gaal, 332 S.W.3d at 453 (quoting
Liteky v. United States, 510 U.S. 540, 558 (1994) (Kennedy, J., concurring)); accord
Rhodes, 357 S.W.3d at 799–800. Subsection (b) more specifically addresses what the
judge knows and feels. Id.
Recusal is generally not required purely on the basis of judicial rulings,
remarks, or actions, as they would not on their own typically “evidence the degree of
favoritism or antagonism required;” these usually will be grounds for reversal if in
error, but not for recusal. Gaal, 332 S.W.3d at 454 (quoting Liteky, 510 U.S. at 555).
On the other hand, recusal is appropriate if the facts are such that a reasonable person
would harbor doubts as to the impartiality of the trial judge. Kemp, 846 S.W.2d at
305. The evidence must be sufficient to overcome the presumption of judicial
impartiality. See Kemp, 846 S.W.2d at 306; Abdygapparova v. State, 243 S.W.3d
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191, 198–99 (Tex. App.—San Antonio 2007, pet. ref’d). Further, the bias must be
“of such nature, and to such extent, as to deny the defendant due process of law.”
Kemp, 846 S.W.2d at 305; see also Abdygapparova, 243 S.W.3d at 199 (noting that
this is a “high standard”). The presiding judge at a recusal hearing determines the
credibility of the evidence.
3. No abuse of discretion by the reviewing judge.
At the recusal hearing, appellant argued that recusal of Judge Rains was proper
and that a reasonable person would have doubts about Judge Rains’ impartiality for
two reasons: (1) appellant’s counsel, before 2008, was successful in recusing Judge
Rains from a matter and filing a grievance against Judge Rains;2 and (2) in or around
2008, appellant counsel’s wife ran for judicial office and lost against Judge Rains in
the Republican primary. Appellant failed to provide any documentary proof of these
events.
Judge Rains testified that there was no reason he could not be fair in the
proceeding, a statement noted by the reviewing judge when he denied the motion to
recuse. Moreover, Judge Rains did not testify to any personal bias against appellant
or his attorney in this case, and did not testify to any lingering hostility against
appellant’s attorney based on the past proceedings, which occurred more than six
years before appellant’s trial.
As set forth in the record, the reviewing judge followed appropriate guiding
rules and principles and reached a decision based on information presented at the
hearing that was within the zone of reasonable disagreement. See Kemp, 846 S.W.2d
at 306; Abdygapparova, 243 S.W.3d at 197–98. Under these circumstances, it was
within the reviewing judge’s discretion to deny appellant’s motion to recuse. See id.
2
These matters took place before 2008, and involved the manner in which Judge Rains
handled bond and other matters in aggravated sexual-assault cases.
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Therefore, we overrule appellant’s second issue.
B. Did appellant preserve error regarding his Confrontation-Clause
complaint?
In his first issue, appellant asserts that his rights under the Confrontation
Clause of the Sixth Amendment of the United States Constitution were violated
during the guilt-innocence phase when the trial court limited cross-examination of the
complainant. During cross-examination, appellant’s counsel made several attempts
to ask the complainant questions about her children in Georgia, including whether the
State of Georgia took the complainant’s daughters away from her “back in the late
‘90’s” for neglect, how the complainant’s daughters ended up living with other
people, how long her daughters lived apart from her, and, in reference to Wright’s
visit, “that’s not the first time you’ve had contact with Protective Services regarding
children of any state . . . .”
Each time appellant attempted to broach the subject of the complainant’s then-
adult children in Georgia, the prosecutor objected based on relevance or speculation
and the trial court sustained the objection. The trial court instructed appellant’s
counsel to move along. On a few occasions, contemporaneous to the judge’s
instruction to keep moving forward in the case, appellant’s counsel requested a
hearing outside the presence of the jury, which the trial court denied. Appellant did
not raise any constitutional issue during these exchanges. Nor did appellant mention
the Confrontation Clause or assert any other constitutional complaint. Appellant did
not voice any complaint that his rights were being violated by the trial court’s
limitation on cross-examination.
1. Failure to object with sufficient specificity
A defendant must preserve error in the trial court to argue on appeal that his
right to confront witnesses was violated. Anderson v. State, 301 S.W.3d 276, 280
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(Tex. Crim. App. 2009); Tex. R. App. P. 33.1(a)(1). To preserve error, a defendant
must make a timely, specific objection. Layton v. State, 280 S.W.3d 235, 238–39
(Tex. Crim. App. 2009); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas
2006, pet. ref’d) (holding that error must be preserved as to complaint based on
Confrontation Clause by a timely and specific objection). A minor reference to cross-
examination is insufficient to preserve a Confrontation-Clause objection if the
objection made in the trial court could encompass an evidentiary objection as well as
a Confrontation–Clause objection. Austin v. State, 222 S.W.3d 801, 811 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). A reviewing court should not address
the merits of an issue that has not been preserved for appeal. Wilson v. State, 311
S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g).
Appellant’s generalized objection and request for a hearing outside the
presence of the jury regarding the limitations on cross-examination of the
complainant (i.e., excluding cross-examination related to her involvement with child-
protective authorities in Georgia in the late-1990’s) is insufficient to preserve an error
based on the Confrontation Clause. See Austin, 222 S.W.3d at 811; Stewart v. State,
995 S.W.2d 251, 255 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (failure to
object on constitutional grounds waives error).
2. Failure to raise timely objection
A party must assert the objection as soon as the basis for it becomes apparent.
Tex. R. Evid. 103(a)(1); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011);
see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing
policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889
(Tex. Crim. App. 2002) (“We have consistently held that the failure to object in a
timely and specific manner during trial forfeits complaints about the admissibility of
evidence. This is true even though the error may concern a constitutional right of the
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defendant.” (citations omitted)); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex.
App.—Fort Worth 2012, pet. ref’d).
Appellant waited until after the State had rested before asserting that the trial
court had violated his constitutional rights by excluding certain testimony and
evidence during cross-examination of the complainant. Only after counsel completed
the jury charge conference and the trial judge asked if counsel had any other issues
before the jury did appellant’s counsel respond, stating as follows:
Yes, sir. I’d like to state that by limiting the cross-examination of the
[the complainant] Your Honor, during the State's case in chief, we
submit that that ruling, with regard to any questions pertaining to the
additional children of [complainant], was a denial of the defendant's
constitutional right to confront, cross-examine his accuser. That violates
his Sixth and, I believe, 14th Amendments to the United States
Constitution, by improperly limiting cross-examination. As well as,
Article 1, Section 10, of the Texas Constitution. It also denies the
defendant the right to fully and adequately present his defense. Again,
in violation of the Sixth and 14th Amendments to The United States
Constitution, Article 1, Section 10 of the Texas Constitution. Which I
believe, also guarantees a defendant due process of law. That is, a fair
trial and the ability to present his defense. What I want to do is make an
offer of proof with regard to what I would have asked [complainant],
when she appeared as a witness for the State during cross-examination.
My purpose for asking these questions –
Appellant counsel’s belated attempt to raise a Confrontation-Clause violation
did not preserve error. An objection must be made as soon as the basis for the
objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim.
App.), cert. denied, 522 U.S. 917 (1997).
Because appellant neither lodged a specific nor timely objection based on the
Confrontation Clause during the cross-examination of the complainant, he has failed
to preserve his complaint for appellate review. Anderson v. State, 301 S.W.3d 276,
280 (Tex. Crim. App. 2009) (deprivation of meaningful opportunity to present
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complete defense is right subject to forfeiture); see also Broxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995) (appellant forfeited claim he was denied right to
present defense and right to due process and due course of law under federal and state
constitutions because he failed to lodge proper objection at trial); see also Hayes v.
State, 124 S.W.3d 781, 786–87 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 161
S.W.3d 507 (Tex. Crim. App. 2005) (appellant failed to preserve complaint that
exclusion of evidence denied constitutional right to due process by preventing
presentation of complete defense because different argument raised at trial).
Accordingly, we overrule appellant’s first issue.
III. CONCLUSION
The visiting judge did not abuse his discretion in denying appellant’s motion to
recuse. Appellant did not preserve error regarding his objection under the
Confrontation Clause. Having overruled both of appellant’s issues, we affirm the
trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justice Boyce and Justice Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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