Opinion
No. 04-15-00240-CR
05-25-2016
Mario Jesus RAMIREZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR10323
Honorable Ron Rangel, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
Mario Jesus Ramirez was convicted by a jury of murder and sentenced to life imprisonment. On appeal, Ramirez contends the trial court erred in denying his motion for new trial which asserted: (1) Ramirez was not allowed to testify during the punishment phase of trial; and (2) jurors engaged in misconduct by sleeping through critical portions of the trial. We affirm the trial court's judgment.
STANDARD OF REVIEW
A trial court's denial of a motion for new trial is reviewed under an abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). A trial court abuses its discretion if its decision is arbitrary or unreasonable or when no reasonable view of the record could support the trial court's ruling. Id. "We view the evidence in the light most favorable to the trial judge's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against the losing party." Id.
As the factfinder at a motion for new trial hearing, the trial court is the sole judge of witness credibility with respect to both live testimony and affidavits. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). Appellate courts must afford almost total deference to the trial court's findings of historical fact. Id. Even if affidavit testimony is not controverted, the trial judge has discretion to disbelieve the testimony. Colyer, 428 S.W.3d at 122; Okonkwo, 398 S.W.3d at 694.
OPPORTUNITY TO TESTIFY AT PUNISHMENT PHASE OF TRIAL
Ramirez first contends the trial court erred in denying his motion for new trial on the basis that he was not allowed to testify at the punishment phase of trial. Although Ramirez briefs this issue as structural error exempt from a harm analysis, the Texas Court of Criminal Appeals has held a claim that defense counsel's conduct deprived a defendant of his constitutional right to testify is "properly characterized as one of ineffective assistance of counsel and that the usual analysis of prejudice under Strickland v. Washington applies." Johnson v. State, 169 S.W.3d 223, 225 (Tex. Crim. App. 2005). To establish ineffective assistance, an appellant must show: (1) counsel's representation fell below an objective standard of reasonableness; and (2) a reasonable probability exists that the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Villa v. State, 417 S.W.3d 455, 462-63 (Tex. Crim. App. 2013).
In support of his contention, Ramirez relies on his own affidavit which was attached to his motion for new trial. In his affidavit, Ramirez stated he wanted to testify during the punishment phase of trial, but he "was not offered the opportunity to testify." The State, however, notes the evidence presented at the hearing on Ramirez's motion for new trial also included an affidavit from Ramirez's defense attorney. In his affidavit, defense counsel stated Ramirez never made a specific request to testify at the punishment phase of trial, and defense counsel never told Ramirez he could not testify. Defense counsel further stated, "Although Mr. Ramirez had ample opportunity to inform me he wanted to testify, he never asked to testify. Nor did I tell him he could not testify."
As previously noted, the trial court was the sole judge of the credibility of these two witnesses. Okonkwo, 398 S.W.3d at 694. In denying the motion for new trial, the trial court chose to believe defense counsel. Because a reasonable view of the record supports the trial court's ruling, the trial court did not abuse its discretion in denying the motion for new trial on this ground.
SLEEPING JURORS
Ramirez next contends the trial court abused its discretion in denying his motion for new trial because he presented seven uncontroverted affidavits stating various jurors were sleeping during critical phases of his trial. The State responds that four of the affidavits were provided by character witnesses who testified on Ramirez's behalf during the punishment phase of trial and another two affidavits were likely provided by Ramirez's family members. Accordingly, the State asserts the trial court had reason to question the credibility of those affiants.
"The trial court is in the best position to observe the demeanor of the jurors." Dickerson v. State, 87 S.W.3d 632, 641 (Tex. App.—San Antonio 2002, no pet.). In the instant case, no sleeping jurors were called to the trial court's attention during trial. Although the affidavits submitted by Ramirez were not controverted by the State, the trial court could still disbelieve the factual assertions they contained. See Odelugo v. State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014) (noting trial court can disbelieve any assertions in an affidavit as long as the reason for such disbelief is supported by a reasonable view of the record even when State does not controvert the evidence). This is particularly true in this instance where the trial court could reject the factual assertions in the affidavits based on the trial court's own observations during trial. See Porter v. State, No. 06-06-00220-CR, 2008 WL 623226, at *11 (Tex. App.—Texarkana Mar. 10, 2008, pet. ref'd) (noting trial court's decision to deny motion for new trial alleging jurors were observed sleeping "could have been based on either its determination of witness credibility or the court's independent recollection of events (or both)") (not designated for publication); Dickerson, 87 S.W.3d at 642 (noting trial judge may rely on his or her personal recollections of the proceedings at trial in deciding a motion for new trial). Furthermore, because Ramirez requested the motion for new trial be heard based solely on the affidavits, "the trial judge may have viewed the affidavits with skepticism because they were not supported by any offer of live testimony" where the affiants' testimony could be "tested in the crucible of cross-examination." Charles v. State, 146 S.W.3d 204, 212-13 (Tex. Crim. App. 2004). Because a reasonable view of the record supports the trial court's rejection of the affidavit testimony regarding the sleeping jurors, the trial court did not abuse its discretion in denying the motion for new trial on this ground.
CONCLUSION
The judgment of the trial court is affirmed.
Karen Angelini, Justice DO NOT PUBLISH