COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MARIO RAMOS, )
) No. 08-04-00085-CR
Appellant, )
) Appeal from the
v. )
) 409th District Court
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20030D03578)
)
O P I N I O N
Appellant Mario Ramos appeals his conviction for aggravated assault with a deadly weapon. A jury found Appellant guilty of the offense as charged in the indictment and assessed a punishment of 55 years= imprisonment. Appellant raises four issues on appeal, in which he argues the trial court: (1) erred in having the jury assess punishment without an election made in writing; (2) erred in admitting out-of-court testimonial statements; and (3) erred in admitting photographs of the complaining witness. Appellant also complains that his trial counsel rendered ineffective assistance at trial. We affirm.
On August 30, 2002, Donald Buchanan was watching television in his home at 5980 Wrangler Drive, El Paso, Texas. A woman rushed into his house and asked him to call the police. She was speaking in Spanish. Mr. Buchanan did not speak Spanish, but the woman Akept saying police, police, police.@ She was hysterical, crying, shaking, and a Abloody mess.@ The police arrived ten to twelve minutes later. Emergency personnel treated the woman in Mr. Buchanan=s house for about thirty to forty minutes.
Clifford Vance, a firefighter and EMT for the El Paso Fire Department, was one of the first to respond to Mr. Buchanan=s call. Mr. Vance observed a woman who had been assaulted and beaten very badly. The woman was covered in blood and her hair was completely matted and saturated with blood. Upon inspecting her injuries, Mr. Vance observed fresh iron marks on her body and blunt puncture wounds on her arms, shoulders, head, and other parts of her body. Mr. Vance described her demeanor as horrified, Achoked up,@ very scared, and shaking. Over Appellant=s objection, Mr. Vance testified that while he was treating her, the woman kept saying Aplanchar or panchar@ over and over again and expressed concern about her children. To assess her injuries, emergency personnel doused the woman with a saline solution.
Herman Miller, a paramedic with the El Paso Fire Department who assisted at the scene, testified that the woman he treated had fresh multiple injuries and burns throughout her body. Mr. Miller observed contusions to her head and first and second-degree burns on various parts of her body. Mr. Miller recalled that she was in a hysterical state and was repeatedly asking for her children. In response to his questions about what had happened, the woman told Mr. Miller that her boyfriend had hit her with an iron.
When Officer David Medina and his partner arrived, the woman was already being treated by emergency personnel. She was screaming hysterically in Spanish. Over Appellant=s objection, Officer Medina testified that she was screaming, Amy children@ and that her husband had hit her. Officer Medina asked her how he had hit her and she told him Awith an iron.@ She told him her husband was Mario Ramos and that her name was Virginia Salinas. Ms. Salinas also told the officer that she was concerned about the children because they were still in the house and her husband was there. Officer Medina was able to determine that her home was located at 5809 Wrangler.
Officer Medina and his partner went to Ms. Salinas= home. No one came out of the house in response to their commands, so the officers secured the residence and waited for other officers to arrive. When Officer Medina entered the house, he observed that it was in disarray with items knocked onto the floor and that a vase was broken and scattered all over the floor. He also observed blood on the carpet, on the wall, on the desk, and on an iron. Officer Medina found two children in a bedroom. No one else was in the house. The police put out a spot broadcast with descriptive information on Mario Ramos.
Ms. Salinas was taken by ambulance to the hospital. Officer Medina went to the hospital to speak with her again. Over Appellant=s objection, the State introduced Exhibits Nos. 9 through 21, photographs of Ms. Salinas at the hospital. Officer Medina testified that the photographs accurately depicted what Ms. Salinas looked like in the hospital when he saw her there that day. At the hospital, Officer Medina observed bruises on Ms. Salinas= arms and face and saw that skin was missing from various parts of her body, including her left upper arm and her neck. He also observed bruising and swelling all over her face, including her right eye and her nose. In addition, Ms. Salinas had a cut on her lower lip and what appeared to be a burn mark behind her ear and a cut on her head from an iron. Based on information he obtained from Ms. Salinas, Officer Medina obtained an arrest warrant for Mario Ramos, the Appellant.
Officer Juan Montelongo testified that he recovered an iron from the house at 5809 Wrangler. Detective Bruce Orndorf, of the Criminalist Unit, testified as a fingerprint expert for the State. Detective Orndorf compared the prints found on the iron in blood with palm prints he collected from Appellant. Detective Orndorf determined that the prints matched without a doubt.
In his Issue One, Appellant argues that the trial court erred in having the jury assess punishment because he filed no written election to have the jury assess punishment pursuant to Article 37.07, section 2(b) of the Texas Code of Criminal Procedure. Appellant asserts that the trial court had a duty to assess punishment because he did not file a written election. Appellant also asserts that the record is wholly devoid of any election being made by him with regard to whether the jury or the judge would assess punishment.
We agree that no written election appears in the record. However, without objection, the trial court instructed the venire panel during introductory remarks, that A[i]n the second phase, the accused is entitled to choose whether the punishment will be assessed by the Judge or by the jury. In this trial, the Defendant has chosen to have the jury assess punishment, if and only if a verdict of guilty is first returned by you, the jury.@ Appellant also voiced no objection at the beginning of the punishment phase of trial, fully participated in the punishment phase by presenting evidence and in opening and closing arguments, and did not object when the charge on punishment was submitted to the jury.
Article 37.07, section 2(b) provides:
[I]f a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however that . . . where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury
. . . .
Tex.Code Crim.Proc.Ann. art. 37.07, ' 2(b)(Vernon Supp. 2004-05).
Where the defendant files no election, the trial court has the duty to assess punishment. Toney v. State, 586 S.W.2d 856, 858 (Tex.Crim.App. 1979). A defendant, however, can waive statutory rights with regard to assessment of punishment. Dickson v. State, 492 S.W.2d 267, 270 (Tex.Crim.App. 1973). We conclude that Appellant has waived the error by failing to object. See Tex.R.App.P. 33.1; Dickson, 492 S.W.2d at 271. Issue One is overruled.
In his Issue Two, Appellant contends the trial court erred in allowing the State to introduce into evidence the complaining witness=s out-of-court statements to police and emergency personnel, namely Clifford Vance, Officer David Medina, and Herman Miller, over his objection. Specifically, Appellant argues that the out-of-court statements were testimonial and their admission affected his constitutional rights under the Confrontation Clause in the Sixth Amendment of the United States Constitution and Article I, section 10 of the Texas Constitution.[1] The State responds that Appellant has failed to preserve his complaint for review because he did not raise a Confrontation Clause objection at trial.
At trial, Clifford Vance testified that the demeanor of Ms. Salinas as Achoked up,@ horrified, very scared, and shaking. The State then sought to elicit testimony that it argued qualified under the excited utterance exception to the hearsay rule. In response, defense counsel stated, A[h]ow could it be spontaneous if she=s already been sitting there, she=s already been comforted by the neighbors, and she=s responding to questions?@ The trial court overruled the objection. Mr. Vance then testified that while he was treating the woman, she kept saying Aplanchar or panchar@ and that she had a lot of concern for her children who were across the street, a couple of houses over. During Officer Medina=s testimony, he described Ms. Salinas= demeanor as Ascreaming hysterically.@ The State then sought to elicit further testimony under the excited utterance exception to the hearsay rule. In response, defense counsel argued:
Your Honor, again, this is an out-of-court statement being offered to prove the truth of the matter. She=s already been staying in this home, she=s been comforted by her neighbors, she=s already had EMS treating her, and it=s a direct response to questioning her, and there is case law to that, that that is not an excited utterance, Your Honor.
The trial court overruled the objection. Officer Medina then testified that Ms. Salinas was screaming Amy children@ and told him that her husband, Mario Ramos, had hit her with an iron.
In his testimony, Paramedic Herman Miller described Ms. Salinas= demeanor as Aa hysterical state.@ The State informed the court that it intended to question Mr. Miller about what Ms. Salinas told him had happened to her, arguing that it was admissible under the hearsay exception for medical treatment. The following exchange then occurred:
Defense: We would object, Your Honor, until we can voir dire him out of the presence of the jury as to whether he even speaks Spanish. The earlier testimony elicited in this case indicates they don=t speak Spanish and that=s why they brought Medina in.
The Court: She doesn=t have to do that outside the presence.
Defense: It would be unfair for him to start guessing what she said and it will be prejudicial.
The Court: Absolutely.
The State: I will ask that question.
The Court: Objection overruled.
Through a court interpreter, Mr. Miller then testified as to what Ms. Salinas had told him had happened. Mr. Miller asked Ms. Salinas A[h]ow did it happen to you, what did they use to burn you, and how did you get burned?@ She told him that her boyfriend had hit her with an iron. Mr. Miller also asked her questions about her medical history. On cross-examination, Mr. Miller admitted that he did not know if what she had told him was true.
To preserve a complaint for review, a party must have made to the trial court a timely and specific objection to the complained-of testimony. See Tex.R.App.P. 33.1(a)(1). At trial, Appellant raised only a general hearsay objection to testimony from Mr. Vance and Officer Medina and only a general objection to testimony from Mr. Miller. Because Appellant did not object to error under the Confrontation Clause, he has waived this argument on appeal.
See Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004); Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000), cert. denied, 531 U.S. 1128, 121 S. Ct. 885, 148 L. Ed. 2d 793 (2001); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990)(objection at trial is required to preserve claim that constitutional right to confrontation was violated); Bunton v. State, 136 S.W.3d 355, 368 (Tex.App.--Austin 2004, pet. ref=d)(a hearsay objection does not preserve error on a confrontation claim). Issue Two is overruled.
Relatedly, Appellant contends in his fourth issue that his trial counsel rendered ineffective assistance by failing to specifically object on confrontation grounds to the admission of Ms. Salinas= out-of-court statements. Appellant asserts that his trial counsel=s conduct was not reasonable and prejudiced his defense. In this case, Appellant filed a motion for new trial, but did not raise an allegation of ineffective assistance of counsel. The motion was denied by operation of law.
We review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on an ineffective assistance claim, the appellant must show by a preponderance of the evidence that counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In addition, the appellant must show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.
In reviewing claims of ineffective assistance, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court held that out-of-court testimonial statements by a witness who fails to testify at trial violate the Sixth Amendment=s Confrontation Clause unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court, abrogating its earlier decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Crawford, 541 U.S. at 66-69, 124 S. Ct. at 1373-74. The Court left Afor another day any effort to spell out a comprehensive definition of >testimonial,=@ but stated that Ait applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.@ Id. at 68; 124 S. Ct. at 1374. As to non-testimonial hearsay, the Court in Crawford indicated that its indicia of reliability analysis in Roberts still held. See id. at 68; 124 S. Ct. at 1374; Roberts, 448 U.S. at 66, 100 S. Ct. at 2539 (evidence bears sufficient indicia of reliability if it either falls within a firmly rooted hearsay exception or contain particularized guarantees of trustworthiness); Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App. 1999).
Following Crawford, different analyses apply to non-testimonial hearsay and testimonial hearsay. See Crawford, 541 U.S. at 68; 124 S. Ct. at 1374. Therefore, our first task is to determine whether the complained-of out-of-court statements by Ms. Salinas to Mr. Vance, Officer Medina, and Mr. Miller were testimonial or non-testimonial. In his brief, Appellant asserts that the out-of-court statements attributed to Ms. Salinas were testimonial because they were taken during the course of interrogation, investigation, and treatment. We disagree.
The record shows that the police arrived at Mr. Buchanan=s house ten to twelve minutes after his emergency call. At the time Ms. Salinas made her statements to police and emergency personnel, she was shaking, crying, screaming, and hysterical. Mr. Vance testified that during the course of assessing and treating her injuries at the house, Ms. Salinas repeatedly stated, Aplanchar@ or Apanchar@ and expressed concern for her children. While she was receiving medical attention from Mr. Miller, Ms. Salinas told him that her boyfriend had hit her with an iron. Her statement was made in response to questions Mr. Miller had asked while assessing her injuries. Officer Medina arrived at the house after emergency personnel. He found the victim being treated for her injuries and screaming hysterically. Ms. Salinas was screaming Amy children@ and that her husband had hit her. Officer Medina asked her Ahow@ and she said Awith an iron.@ She also identified her husband as Mario Ramos.
None of these statements were made in a formal setting, in response to tactically structured police questioning, or were the product of custodial interrogation as that term is used in Crawford. See Crawford, 541 U.S. at 51-53; 124 S. Ct. at 1364, 1365 n.4. Rather, it is apparent that Ms. Salinas= statements were made during the initial interaction between the victim and police/emergency personnel, in which the safety and medical needs of the victim were paramount, and not A>under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.=@ See id. at 52; 124 S. Ct. at 1364. Therefore, we conclude that the hearsay statements in question were non-testimonial in nature.
At trial, Appellant=s objections to the out-of-court statements made to Mr. Vance and Officer Medina were overruled on grounds that the statements were admissible under the excited utterance exception to the hearsay rule. See Tex.R.Evid. 803(2). The trial court overruled Appellant=s objection to Mr. Miller=s testimony about statements made by Ms. Salinas based on the State=s argument that the evidence was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Tex.R.Evid. 803(4). Under the Roberts analysis, the non-testimonial hearsay statements would not offend the Confrontation Clause because the statements fell within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. See Roberts, 488 U.S. at 66, 100 S. Ct. at 2539. Therefore, counsel=s failure to raise a Confrontation Clause objection was not outside the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Issue Four is overruled. Returning to his Issue Three, Appellant asserts that the trial court erred in admitting State=s Exhibits Nos. 9 through 21, photographs of Ms. Salinas at the hospital, and argues that the probative value of the photographs was substantially outweighed by their prejudicial value.
During Officer Medina=s testimony, the State sought to introduce photographs of Ms. Salinas as she appeared at the hospital when Officer Medina met with her on the same day as the assault. Appellant objected to their admission, stating that the photographs were Acalculated to inflame the passions of the jury . . . .@ After reviewing the exhibits, the trial court overruled Appellant=s objection and admitted them into evidence. Officer Medina then gave verbal testimony as to what injuries were depicted in the State=s Exhibits Nos. 9, 12, 13, 14, 15, and
17--specifically, various burn wounds to Ms. Salinas= left upper arm, the right side of her neck, numerous bruises on her arms, face, and neck. Notably, State=s Exhibits Nos. 12, 13, 14, 15, and 17 showed close-ups of particular injuries to Ms. Salinas= face, neck, behind her ear, scalp, and forearm. State=s Exhibit No. 10 contained four small photographs that showed the bruises to Ms. Salinas= legs and arms from a distance. State=s Exhibit No. 11 showed a frontal shot of Ms. Salinas fully clothed and reclining on a hospital bed. State=s Exhibits Nos. 16 and 18 showed bruising on Ms. Salinas= body. State=s Exhibit No. 19 showed a burn wound. Finally, State=s Exhibits Nos. 20 and 21 showed close-ups of bruising on Ms. Salinas= legs.
We review the trial court=s ruling to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990); see also Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997)(admissibility of a photograph is within the trial court=s sound discretion). The trial court has abused its discretion if its decision falls outside the Azone of reasonable disagreement.@ Weatherred, 15 S.W.3d at 542; Montgomery, 810 S.W.2d at 391. Absent a clear abuse of discretion, the trial court=s ruling will not be reversed. See Levario v. State, 964 S.W.2d 290, 296 (Tex.App.--El Paso 1997, no pet.).
Appellant does not dispute the relevancy of the proffered photographs. See Tex.R.Evid. 401. Rather, Appellant contends that the photographs were unduly prejudicial. Under Tex.R.Evid. 403, relevant evidence Amay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .@ See Tex.R.Evid. 403. Rule 403 presumes that the evidence will be more probative than prejudicial. See Williams, 958 S.W.2d at 196. In determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, courts may consider several factors, including, but not limited to:
(1) the number of exhibits offered;
(2) the gruesomeness of the photographs;
(3) the details shown in the photographs;
(4) the overall size of the photographs;
(5) whether the photographs are in black and white or color;
(6) whether the photographs are close-up;
(7) whether the body depicted is naked or clothed; and
(8) the availability of other means of proof, and the circumstances unique to each individual case.
See Williams, 958 S.W.2d at 196; Long v. State, 823 S.W.2d 259, 270 (Tex.Crim.App. 1991).
In the present case, nineteen photographs of the victim were admitted into evidence. The appellate record contains black and white photocopies of the photographs, eight of which each measure three and one-half inch by three inch, while the remaining photographs each measure five and one-quarter inch by seven inch. While some show close-ups of particular injuries to Ms. Salinas= face and neck, we do not consider them repetitive or cumulative. Rather, they are descriptive of the multiple types of injuries Ms. Salinas sustained from the assault. Ms. Salinas did not testify during the innocence-guilt phase of the trial. Therefore, the photographs, along with testimony from the officer and emergency personnel, provided evidence of the character and the extent of the injuries involved. Further, the photographs are neither gruesome nor gory in detail. We conclude that the photographs were more probative than prejudicial, thus, the trial court did not abuse its discretion in admitting them into evidence. Issue Three is overruled.
We affirm the trial court=s judgment.
August 11, 2005
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] Appellant asserts in his brief that his federal and state constitutional rights to confrontation were violated, yet he has failed to present or articulate an argument in support of his state constitutional issue. See Tex.R.App.P. 38.1(h). Therefore, we will only address his claim under the federal constitution. See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex.Crim.App. 2000); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997).