Ramirez v. State, s. 03-97-00839-CR
| Decision Date | 11 March 1999 |
| Docket Number | Nos. 03-97-00839-CR,s. 03-97-00839-CR |
| Citation | 987 S.W.2d 938 |
| Parties | Esquiel Fuentes RAMIREZ, Appellant, v. The STATE of Texas, Appellee. to 03-97-00841-CR. |
| Court | Texas Court of Appeals |
Mark Westenhover, Austin, for Appellant.
Ronald Earle, Dist. Atty., C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for State.
Before Chief Justice ABOUSSIE, Justices KIDD and PATTERSON.
Following a consolidated trial of three indictments, a jury found appellant Esquiel Fuentes Ramirez guilty of sexually assaulting his wife and seriously injuring his two infant daughters. See Tex. Penal Code Ann. §§ 22.021(a)(1)(A)(i), (2)(A)(ii) (West Supp.1999) (aggravated sexual assault), 22.04(a)(1) (West 1994) (intentionally or knowingly causing serious bodily injury to a child). The district court assessed punishment for the aggravated sexual assault at imprisonment for ten years. The court imposed two terms of life imprisonment for the intentional or knowing injuries to the children.
Appellant brings forward two points of error. First, he contends his trial attorney rendered ineffective assistance by failing to object to the inadmissible evidence on which his convictions rest. Second, appellant contends he was denied due process when the aggravated sexual assault offense was submitted to the jury after the State had announced during trial that it intended to dismiss that indictment. Because we agree that appellant did not receive effective assistance of counsel, we will reverse the judgments of conviction.
Norma Ramirez's out-of-court statements
On December 19, 1996, appellant was living with his wife Norma Ramirez, their three-year-old son Vinzent, and their twin seven-week-old daughters Vanessa and Valeri. While dinner was being prepared, Vanessa began to have seizures. Emergency medical service technicians were called and Vanessa was transported to the hospital. Upon examination, the child was determined to have subdural hemorrhaging of blood and other fluid, retinal bleeding, and multiple bilateral rib fractures. The medical testimony reflects that these are the classic symptoms of "shaken baby syndrome." Two weeks later, Valeri was also examined at the hospital. While she did not have broken ribs, she had similar subdural and retinal hemorrhaging. According to the medical testimony, both girls have permanent brain damage.
At the hospital on December 19, Norma was asked if Vanessa had been in a car accident or had been shaken. Norma said she had not, and then described an incident Norma said had taken place about one week earlier. Vinzent, the three-year-old, had been climbing on the bassinette in which the twins were resting. As he did so, he tipped the bassinette against the wall, causing a toy Norma Ramirez gave a second statement to Spangler on January 24, 1997. According to this statement, she was awakened by the twins at 3:30 a.m. on December 15, 1996. She got up and began to feed the girls. Vinzent, also awake, watched her as she did so. The commotion awakened appellant, who went to the living room and turned on the television. After being fed, Vanessa and Valeri went back to sleep. Norma then told appellant, who was still watching television, that she was going to take a bath. After Norma had been in the tub about twenty minutes, appellant entered the bathroom, briefly chatted with her, then left. He returned ten minutes later and asked "if I was ready." Knowing that appellant was referring to sexual intercourse, Norma told him that she was still sore and bleeding from the birth of the twins. Appellant became angry and began to pull Norma from the bathtub by her hair and arm. A violent struggle ensued during which appellant struck Norma on her head and side, threw her to the floor, and began to choke her. "He said that he wanted me right now." Appellant continued to hit Norma and throw her against the walls.
truck to fall against Valeri. Appellant also recounted this incident during questioning by the police. On December 23, Norma gave a written statement to Austin police officer Mark Spangler in which she repeated the bassinette story. In this statement, Norma denied causing Vanessa's injuries. Norma acknowledged that appellant had a temper and had been known to push and slap her, but expressed the belief that appellant did not injure the child.
At some point, the struggle moved from the bathroom to the bedroom. Once, when attempting to hit Norma with his fist, appellant missed her and hit the wall, putting a hole in it. He also threw her against a window, breaking the glass with her head. Then, as Norma lay on the floor, appellant "got on top of me and was trying to have sex with me." Norma's screams awakened Vinzent and the twins, who began to cry. Appellant left Norma lying on the floor, walked over to the crib, and told the babies to "shut up." Then, he picked up Vanessa and held her over his head. "He was yelling at her and telling her to shut up." Appellant After returning Vanessa to the crib, appellant picked up Valeri, held her over his head, and squeezed her "real tight." As he did this, appellant repeatedly kicked Norma and told her "it was my fault and that I was hurting them because I wouldn't do what he wanted me to do." After both girls were quiet, appellant returned to Norma. As Vinzent cowered under the girls' crib, appellant first forced his penis into Norma's mouth, then penetrated her vagina.
Norma spent the night on the floor. The next morning, appellant was "being real nice" to Vanessa and Valeri, who were "acting normal." Norma fed both girls and "didn't see that anything was wrong with them." She began to suspect that something was wrong about two days later, when the girls began to stop eating. When Vanessa had her first seizure, Norma called EMS. Norma said at the conclusion of the statement that she did not tell this story earlier because she was frightened.
Appellant was indicted and arrested on the strength of Norma Ramirez's January statement. On May 21, Norma wrote a letter to the assistant district attorney who was then handling appellant's prosecution and disavowed the January statement. She said that she had been told repeatedly by police officers and child welfare workers that appellant had injured her children, and that "I began to believe these accusations." In fact, said Norma in her letter, she did not see appellant abuse the children.
On August 21, Norma Ramirez gave another written statement, this time to the prosecutor who later would represent the State at appellant's trial. In this statement, she said that Officer Spangler had kept her in an interrogation room for nine hours, shouted at her, and told her that she could not return home until she gave a statement accusing appellant of raping her and injuring Vanessa and Valeri. The August statement goes on to describe a telephone call Norma said she received from a neighbor following appellant's arrest. The neighbor was crying and The trial
told Norma that she knew appellant had not injured the girls. According to the statement, the neighbor told Norma that she had shaken the two girls while babysitting them about one week before Vanessa was taken to the hospital. The statement ends,
In his opening statement, the lead prosecutor told the jurors that there was no dispute that the two children had been seriously injured, and that the only real question was the identity of the person who inflicted the injuries. He went on, "You are going to hear that when Norma Ramirez was first interviewed about the injuries to Vanessa, who went to the hospital first ... she told police officers that she thought the injury might have happened because they have a son, a three year old son, Vinzent." After describing Norma Ramirez's December statements to the police, the prosecutor said that Norma later "went back to the police station and this time she told the police officers what I think really happened." Without objection, the prosecutor then summarized the January statement. The prosecutor went on to tell the jury that Norma later recanted this statement, claiming it had been coerced. "The bottom line," said the prosecutor, "is you are going to be ... the ones who have to decide whether Norma Ramirez's [January] statement ... is true or whether it was really honestly coerced from her."
The State's first witness was Norma Ramirez. She described the events of December 19, when Vanessa began having seizures. She recalled the questions she was asked first at the hospital and later by the police, and repeated the bassinette story. Asked by the prosecutor if her statement to Spangler on December 23 was true, Norma said it was. Norma was then asked if she recalled the statement she gave to Spangler on January 24. She said she did. She was asked how she came to give the statement. She explained, without objection, that Spangler "asked me if I would go with him to the police headquarters for a polygraph examination...." After several more questions relating to the polygraph, defense counsel objected "to all this polygraph examination here, Your Honor, as inadmissible." Without ruling on the objection, the court told the prosecutor not to go into the results of the examination and instructed the jury not to "consider anything about polygraph." The prosecutor then asked Norma if the polygraph examiner had asked her "whether you knew who had injured your children?" She said he had, and that she had answered, "I think I do." With that, said Norma, the polygraph examination ended and she was taken to an interview room where she was again questioned by Spangler.
In response to further questioning by the prosecutor, Norma confirmed that she gave Spangler a written...
To continue reading
Request your trial
-
Broussard v. State
...1063, 120 S.Ct. 618, 145 L.Ed.2d 513 (1999); Brown v. State, 974 S.W.2d 289, 293-95 (Tex.App.-San Antonio 1998, pet. ref'd); Ramirez v. State, 987 S.W.2d 938, 944-46 (Tex.App.-Austin 1999, no pet.); Gifford v. State, 980 S.W.2d 791, 793-94 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); M......
-
Donald v. State
...Generally, the State may not impeach its own witness as subterfuge for offering inadmissible hearsay. See Ramirez v. State , 987 S.W.2d 938, 944 (Tex. App.–Austin 1999, pet. ref'd) ; Pruitt v. State , 770 S.W.2d 909, 909 (Tex. App.–Fort Worth 1989, pet. ref'd) ; see also Miranda v. State , ......
-
Craig Jonathan Willover v. the State of Texas
...We have already stated our disagreement with Halstead. Two other cases have reached the same conclusion as Halstead. See Ramirez v. State, 987 S.W.2d 938, 943 n.2 (Tex. App.--Austin 1999, no pet.); Owens v. State, 916 S.W.2d 713, 717-18 (Tex. App.--Waco 1996, no pet.). Both cases, like Hals......
-
Kesaria v. State
...without evidence in the record explaining trial counsel's actions, for failure to object to a statement at trial. 987 S.W.2d 938, 944-45 (Tex.App.-Austin 1999, pet. ref'd). We are not bound by that decision. Moreover, this case is distinguishable on its facts. In Ramirez, the statement that......
-
Trial Issues
...statement may be used to impeach the witness’ credibility but cannot be used as primary evidence to prove guilt. Ramirez v. State, 987 S.W.2d 938 (Tex.App.—Austin 1999, no pet .); Flores. When out-of-court testimonial statements are offered for impeachment purposes only, they are offered fo......
-
Trial Issues
...statement may be used to impeach the witness’ credibility but cannot be used as primary evidence to prove guilt. Ramirez v. State, 987 S.W.2d 938 (Tex.App.—Austin 1999, no pet .); Flores. When out-of-court testimonial statements are offered for impeachment purposes only, they are offered fo......
-
Evidence
...the state pursuant to Tex.R.Evid. 801(e)(2). Logan v. State, 71 S.W.3d 865 (Tex.App.—Fort Worth 2002, pet. ref ’ d ); Ramirez v. State, 987 S.W.2d 938 (Tex. App.—Austin 1999, no pet. ); Owens v. State, 916 S.W.2d 713 (Tex.App.—Waco 1996, no pet. ). However, another case has held that the co......
-
Evidence
...the state pursuant to Tex.R.Evid. 801(e)(2). Logan v. State, 71 S.W.3d 865 (Tex.App.—Fort Worth 2002, pet. ref’d ); Ramirez v. State, 987 S.W.2d 938 (Tex. App.—Austin 1999, no pet. ); Owens v. State, 916 S.W.2d 713 (Tex.App.—Waco 1996, no pet. ). However, another case has held that the comp......