Kevin Alejandro Ramos v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00262-CR
KEVIN ALEJANDRO RAMOS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 19-03385-CRF-272
MEMORANDUM OPINION
Kevin Alejandro Ramos pled guilty to two offenses: aggravated robbery and
aggravated assault with a deadly weapon. After punishment was tried to the court,
Ramos was sentenced to 25 years and 20 years in prison, respectively. Because Ramos
did not sustain his burden of proving his ineffective assistance of counsel claim, the trial
court’s judgments are affirmed.
BACKGROUND
Ramos attacked a person from behind at an ATM and stabbed him in the back of
the head and neck. He robbed another person in line at the same ATM. His defensive
theory was that someone must have slipped something in one of his drinks, he blacked
out for the rest of the night, and had no knowledge of what he allegedly did. Ramos
hired an expert and paid for the expert’s report. Approximately five days before the trial
on punishment, Ramos informed his counsel that he could not pay for the expert’s
testimony fee because Ramos had been off of work for two weeks due to Covid. His
attorney requested a continuance for 60 to 90 days. The continuance was denied because
the trial court did not want to delay the punishment hearing any longer than it had
already been delayed 1 and because the delay would be longer than 90 days due to the
court’s schedule.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Ramos asserts his counsel provided ineffective assistance at the
punishment phase of Ramos’s trial because counsel failed to file an “Ake Motion” for the
appointment of an expert to testify regarding Ramos’s mental state and lack of memory
at the time of the alleged offense. See Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 1090,
84 L. Ed. 2d 53 (1985) (indigent defendant has a due process right to a court-appointed
expert in some cases).
Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy
a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
1
Ramos’s guilty plea had occurred in May and the punishment trial was scheduled for the end of August.
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674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, the appellant
must show that counsel was so deficient as to deprive appellant of his Sixth Amendment
right to counsel. Strickland, 466 U.S. at 687. Second, the appellant must show that the
deficient representation was prejudicial and resulted in an unfair trial. Id. To satisfy the
first prong, appellant must show that his counsel's representation was objectively
unreasonable. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the
second prong, appellant must show that there is "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Thompson, 9 S.W.3d at 812. A reasonable probability exists if it is enough to undermine
the adversarial process and thus the outcome of the trial. See Strickland, 466 U.S. at 694;
Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to
the totality of the representation and the particular circumstances of each case in
evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly
deferential. Mallett, 65 S.W.3d at 63.
The appellant bears the burden of proving by a preponderance of the evidence
that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded
in the record. Thompson, 9 S.W.3d at 813. An appellant's failure to satisfy one prong of
the test negates a court's need to consider the other prong of Strickland. Williams v. State,
301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
Application
Regardless of whether counsel’s performance was deficient, Ramos failed to prove
that but for counsel's unprofessional errors, the result of the proceeding would have been
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different. Ramos faults his counsel for not filing an “Ake Motion” for the appointment of
an expert, rather than a motion for continuance, since Ramos could not afford his expert’s
appearance fee. But Ramos has not shown how he was prejudiced by the failure to file a
motion which may or may not have resulted in the appointment of the expert he had
hired so that the expert could testify at the punishment phase. Ramos asserted in his brief
that he could have had the expert testify about Ramos’s state of mind and that he did not
recall the events of the offenses. Many witnesses testified about how Ramos stated he
could not remember the events. Further, the expert’s report was introduced into evidence
and in that report, the expert stated Ramos did not suffer from any clinically diagnosable
issues. The expert also stated in his report that Ramos reported he had no personal
memories of the evening after having “around 2 drinks.” Upon examination of the
record, there is no evidence establishing what the expert might have testified to beyond
the expert’s admitted report that would have ultimately undermined the results of the
proceeding.
Accordingly, Ramos did not prove the second prong of the Strickland test, and his
sole issue is overruled.
CONCLUSION
The trial court’s judgments are affirmed.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed October 19, 2022
Do not publish
[CRPM]
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