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Date: 07-14-2017

Case Style:

Oswaldo Ramirez v. The State of Texas

Aggravated sexual assault of a child under the age of 6.

First Court of Appeals - Texas Courts

Case Number: 01-15-00995-CR

Judge: Sherry Radack

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Daniel C. McCrory
The Honorable Kim K Ogg
Molly Wurzer

Defendant's Attorney:

Emily Detoto

Description: In March 2014, L.G. was four years old. He lived with his mother, his father,
and his uncle in an apartment. Appellant lived and worked at the same apartment
complex. On March 24, 2014, L.G. was playing in the open doorway to the
apartment while his mother cooked breakfast. Mother testified that, after about ten
minutes of being out of her sight, Mother noticed that L.G. was no longer there.
Mother ran into the courtyard and down a nearby hallway towards the parking lot,
growing increasingly alarmed that she could not locate him and he was not
responding to her calling his name.
From inside the laundry room next to the hallway, she heard a man say, “Shh.”
Mother looked inside the laundry room and saw the back and feet of a man who was
on his knees. The man was wearing white tennis shoes and beige pants. She got
scared and screamed L.G.’s name. The man immediately crawled away to hide
himself from her sight. Mother screamed L.G.’s name again and moved away from
the door. L.G. came out of the laundry room and Mother grabbed him by the hand;
they ran to the apartment.

L.G. told Mother he was with the man that worked at the apartments with lots
of bumps on his face. Through their window, Mother then saw appellant, whom she
knew as one of the maintenance men, walking past wearing the same type clothes as
the man she had seen in the laundry room. Mother asked L.G. if this was the same
person who was inside the laundry room and L.G. said it was. Throughout the
conversation, L.G. was “quiet” and “scared.” Mother provided in court
identification of appellant as the maintenance man that L.G. identified to her and
that she saw in the laundry room.
L.G. told her that “the man had him turned with his back towards him,” pulled
his underwear down, and touched L.G.’s anus with his fingers. L.G. also told her
that the man gave him marbles before he did this, and promised another gift after,
such as candy or more marbles.
Mother called her pastor first, and then the police. While the police were at
the apartment complex, they located appellant, and both Mother and L.G. identified
appellant as the man in the laundry room who had assaulted L.G. Mother’s pastor
drove her to the police station, where she filed a report to press charges, and then
she took L.G. to the hospital.
When they returned home later on the 24th, Mother went to talk to M.
Mosqueda in the apartment office and told her that they had problems with the

maintenance man touching her son. They moved out of the complex about three
weeks later, as they were not comfortable there.
At a Children’s Assessment Center interview, L.G. stated that he was outside
the apartment and appellant walked by and told him to go with him to the washer.
L.G. recognized appellant because his “cheeks had dots.” L.G. again said that in the
washroom, appellant pulled down L.G.’s pants and touched his “bootie.” L.G. also
said that appellant put his finger in L.G. and it hurt. L.G. demonstrated by making
a fist and putting his finger inside. He also said that appellant stopped when they
heard Mother calling for L.G.
At trial, L.G. testified that he was there to discuss what “happened to me . . .
[t]hat a man touched me.” He stated that he was embarrassed to talk about it. He
provided in-court identification of appellant as the man who touched him. Though
L.G. testified that he did not remember how he got in the laundry room, he did
remember that appellant touched him “in his bootie” with his hand after pulling
L.G.’s shorts and underwear down. L.G. also pointed to the anus of a doll to identify
where he had been touched. L.G. said appellant stopped “after a little while,” that
appellant them gave him marbles, and he then returned home. He did not recall his
mother looking for him, telling his mother what had happened, telling anyone else
what had happened, or that the police had come out to his apartment. He stated that
no one told him what to say at trial.

The State additionally presented DNA evidence based on a partial profile
through an expert witness at trial. Prior to trial, Ramirez’s trial counsel filed a
motion in limine challenging use of the evidence based on Texas Rule of Evidence
403, that the evidence was unfairly prejudicial. After hearing arguments from
counsel, the trial court denied that motion, concluding that “the attorneys will be
able to place this piece of evidence in the proper context and give the jury the
information they need, that they can then decide what to do with it.” The court
further stated, “[b]ut, ultimately, I think it is of probative value and that the probative
value is not substantially outweighed by the danger of unfair prejudice to the
defendant.” Appellant’s trial counsel did not make a 403 objection when the DNA
evidence was offered at trial.
After the State rested and the court denied appellant’s request for a directed
verdict, appellant testified on his own behalf. Appellant admitted that he gave L.G.
marbles on March 24, 2014. Appellant knew L.G. because L.G. was frequently
playing around the apartment complex, and appellant had given him marbles before
that he found on the grounds. Before March 24, appellant had never had any issues
with L.G. or his father, but appellant testified that Mother “didn’t really like me.”
Specifically, even before he was alleged to have assaulted L.G., Mother would
always make faces at appellant. They had a couple of run ins, once when she refused
to give him a key to her apartment to be copied so that he could come by to

exterminate, and once when she was selling items at another property where
appellant worked.
Appellant denied touching L.G. and testified that he believes L.G. was
coached by his parents to make these accusations. After the allegations were made,
L.G.’s father tried to attack appellant with a tire iron. Appellant testified to the belief
that Mother reported him and subjected L.G. to a forensic interview and an
anogenital exam at the hospital because “she didn’t like” him. Appellant also
asserted that, on April 11, 2014, when he was arrested, Mother and L.G. witnessed
his arrest and laughed. Appellant claimed that, prior to these events, he did not know
Mother’s or L.G.’s names, but knew what apartment they lived in. Appellant
testified that on March 24, 2014, he lived in a house about 20 minutes away from
the apartments he serviced, and that he did not own a computer.
R. Romero also testified on appellant’s behalf. Romero stated that he had
known appellant 20 to 25 years, and that appellant had a good reputation for moral
treatment around children.
E. Devlin, with a forensic group that specializes in “extraction of data from
electronic devices, cell phones, computers, cell towers, hat type of thing” next
testified for appellant. Devlin was asked by appellant’s attorney to analyze Mother’s
March 24, 2014 cell-phone records from 11:00 a.m. until 12:00 p.m. Devlin
identified a call from Mother to Pasadena Emergency Center at 11:23, and explained

that a cell phone records 9-1-1 calls not as 9-1-1 being dialed, but instead as direct
calls to the nearest emergency center, where it is automatically routed to. Devlin did
not identify any outgoing calls to the number given to him for Mother’s pastor’s
landline on March 24, 2014. Between 11:00 and the 11:23 9-1-1 call, Devlin
identified a string of 13 text messages between Mother and an Ohio number with
identified subscriber information as G. Guerra, but no information on the content of
those texts. On cross-examination, Devlin also explained that there are many ways
to make a call and not have it show up on phone records through the use of various
apps, wifi, etc. Accordingly, Devlin testified that he could not tell, from the records
given him by appellant’s attorney, whether Mother had called her pastor or not
before calling 9-1-1 on March 24, 2014.
Finally, M. Mosqueda, a leasing agent for the apartments where the assault
allegedly took place, testified that the police came out on March 24, 2014, but she
denied that Mother had talked to her about the incident between L.G. and appellant.
Mosqueda verified that appellant continued to work at the apartment complex after
the 24th. She stated that Mother’s family moved out of the complex in mid-April of
that year, and that—at the time they moved out—Mother was $575.00 behind in rent
payments. She testified to Mother complaining about appellant one time before the
24th because she did not like his appearance or smell. She also gave testimony about

the demographics of the apartment residents on March 24, 2014, which was
inhabited only by Hispanic people.1
Appellant raises two issues on appeal.
1. Mr. Ramirez received ineffective assistance of counsel when DNA evidence from the complainant’s Underwear was admitted without objection.
2. The trial court abused its discretion by denying Mr. Ramirez’s request for a hearing on his Motion for New Trial.
In his first point of error, appellant argues that he received ineffective
assistance of counsel when DNA evidence from L.G.’s underwear was admitted at
trial without objection, because the evidence was inadmissible under the Rule of
Evidence 403 balancing test. Appellant complains that his trial counsel had a duty
to object and that there was no reasonable strategy that could justify trial counsel’s
failure to do so.
The State responds that the evidence was admissible under Rule 403
regardless of whether trial counsel objected and, even if it was not admissible, such
admission was harmless in light of the other evidence. We agree appellant has not
established that his attorney’s failure to object prejudiced his defense.
1 This information is relevant to the DNA statistics expert’s testimony.

A. Standard of Review and Applicable Law
We consider claims of ineffective assistance of counsel under the two-prong
test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). To prevail on an ineffective assistance of counsel claim, appellant must
show that (1) counsel’s performance was deficient, meaning it fell below an
objective standard of reasonableness, and (2) the deficiency prejudiced the
defendant, meaning there was a reasonable probability that, but for the counsel’s
deficient performance, the results of the trial would have been different. Id.; accord
Ex parte Napper, 322 S.W.3d 202, 246, 248 (Tex. Crim. App. 2010). A reasonable
probability is a probability sufficient to undermine confidence in the outcome,
meaning that counsel’s errors must be so serious that they deprive appellant of a fair
trial. Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 2009). As we review
appellant’s claim of ineffective assistance, we “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” TEX. R. EVID. 403. A trial court has discretion in
ruling on the admissibility of evidence. Salazar v. State, 38 S.W.3d 141, 151 (Tex.
Crim. App. 2001). As such, we will not disturb the trial court’s evidentiary ruling
as long as it was within the zone of reasonable disagreement. Id. Applying the Rule
403 balancing test does not permit “a trial court to exclude otherwise relevant
evidence when that evidence is merely prejudicial.” Bradshaw v. State, 466 S.W.3d
875, 883 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Pawlak v. State, 420
S.W.3d 807, 811 (Tex. Crim. App. 2013)).
B. Analysis
Appellant’s claim of ineffective assistance requires him to show both that his
counsel’s performance was deficient and that this prejudiced his defense. See Ex
parte Napper, 322 S.W.3d at 246. Appellant’s sole argument regarding deficient
performance is that the DNA evidence taken from L.G.’s underwear was
inadmissible at trial under the Rule 403 balancing test, and trial counsel’s failure to
object to that evidence being admitted at trial was not a reasonable strategy.
The trial court applied the 403 balancing test in reviewing appellant’s motion
in limine related to this DNA evidence. Appellant does not argue that the trial court
abused its discretion in denying that motion in limine, but rather that at trial, “upon
proper objection, the trial court would have abused its discretion in admitting the
evidence.” Appellant argues that by failing to object when the evidence was
introduced his trial counsel’s performance was deficient.
We need not consider whether counsel’s failure to reurge the Rule 403
objection amounted to ineffective assistance because we conclude that appellant has
not established prejudice, i.e., a reasonable probability that, but for counsel’s alleged
error, the result of the trial would have been different. See Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012) (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . . that course should be
Yip, the State’s expert DNA analyst with the Harris County Institute of
Forensic Sciences, testified that he prepared the DNA report in this case. DNA
profiles were obtained from two spots on L.G.’s underwear. Yip concluded that the
DNA results from these two swabs are consistent with mixtures of DNA from three
or more individuals. L.G. and appellant cannot be excluded as a possibility
contributor to this mixture. Appellant’s mother and father are excluded as possible
contributors to these mixtures.
Yip testified that the frequency of occurrence of an unrelated, randomly
selected individual who could be a contributor to the mixture on one of the swabs is
approximately: 1 in 8 Caucasians, 1 in 27 African Americans, and 1 in 5 Hispanics.

The frequency of occurrence of an unrelated, randomly selected individual
who could be a contributor to the mixture on the other underwear swab is
approximately: 1 in 7 Caucasians, 1 in 8 African Americans, and 1 in 3 Hispanics.
Yip conceded that these statistics were “not robust” and he could “only say
that [the appellant] cannot be excluded as a potential contributor to this mixture.”
Yip testified that possible semen was detected from swabs taken at a different
part of L.G.’s underwear. Yip was not able to develop a profile from these samples.
Anal and penile swabs performed on L.G. presumptively tested positive for sperm,
but could not be confirmed or profiled.
During cross-examination, Yip stated that the lab only found two sperm
during their underwear analysis. He testified that for a normal ejaculation, he would
expect to see more, and that sperm cells can survive a laundry cycle.
Appellant insists that the DNA statistical evidence was extremely weak, and
that the scientific DNA testimony “likely confused the jury and distracted from the
main issue—whether they believed the complainant and his mother’s testimony.”
He reasons that not only was the evidence “so weak and questionable” that it should
never have been presented, the jury likely “gave it undue weight” because it “was
presented as scientific evidence,” which “may have suggested a decision on an
emotional and improper basis.”

On this record, we disagree that the DNA evidence, albeit of limited probative
value, likely confused or misled the jury. During both Yip’s direct and cross
examination, he conceded that there was not much information to be gleaned from
the DNA testing, and he unequivocally testified that the DNA results did not
demonstrate that appellant was the perpetrator.
Rather, Yip explained that determining that a person “cannot be excluded” as
a DNA contributor is not the same thing as that person being “a match.” Appellant’s
counsel elicited testimony that the DNA semen count in his case (from which no
analysis could be performed) was extremely low, and that there were other possible
explanations for the presence of the DNA samples on L.G.’s underwear.
In addition, the State was candid during its direct examination of Yip about
the weakness of the DNA evidence:
[State]: And just so we are not misrepresenting anything here, I mean, no one is trying to say that this is a definitive, you know, match with – in terms of probability, correct? A. Correct. Q. Okay. Those are actually pretty low numbers, correct? A. Those are small numbers, yes.
Both appellant’s counsel and the State referenced the speculative nature of the
DNA evidence during closing arguments. Appellant’s counsel noted he was
excluded as a potential contributor to several of the DNA samples:
And my client is excluded. Excluded. Excluded. Excluded. And what Mr. Yip said were small numbers on the underwear, there is —

there is no evidence there that effectively ties this to my client. He said — he said he doesn’t do statistics. He is just a one in three. So, if you take what [] Mosqueda said, there is 200 Hispanics there in the apartment complex. No black people. No white people. No Chinese. Just Hispanics. One in three. So, you divide 200 by three and it tells you there is 67 odd people there that could have placed — who could have contributed the genetic material there. . . . . My guy is — not only is he excluded, but Mr. Yip admits that there’s other — other material there that doesn’t belong to my client and it is not the child’s. So he is excluded.
The State likewise conceded in its closing argument that the DNA evidence
did not establish that appellant was the perpetrator in this case:
I am not going to sit here and tell you that the defendant is definitively the person on the underwear. I can’t say that because it would be wrong for me to say that. That is misrepresenting the evidence, right? But very, very, very, very crucially important here, he can’t be excluded. And when he says he can’t be excluded from the anus, it is misleading at best. It is misleading at best. Which is most of the case that he’s presented to you. But what the — what Dennis Yip told you, what the analyst told you, is that all of the identified alleles that we have on there, every identifying number that we have on there, points to not excluding the child. And that makes sense. It came from his own bottom. It came from his own bottom. Obviously, his DNA is going to be there. We know it is a mixture and we saw that evidence of the graphs and the peaks. And I am sorry I had to go into some of that background. I needed to make sure that it was clear to you, needed to make sure that the analyst made clear to you that these peaks right here are unknown, these two lower peaks. However, we do know that they are less than 31.2. That is what we know. And the defendant’s numbers at that location are less than 31.2. Now, my saying that that is his DNA on there, well, I mean, I am not sure, but it could be. But no one knows for sure. Could be mom. Could be dad. Could be defendant. We are not sure.

. . . .
What is important for you is that to say someone is excluded, okay, that is misleading at best. What we do know is that he cannot be completely excluded . . . . . He cannot be excluded from the child’s underwear. Given the clear and accurate information provided the jury about the DNA
results coupled with L.G.’s testimony himself about what had occurred in the
laundry room, testimony from Mother (the outcry witness), and testimony from a
forensic evaluator at the Children’s Assessment Center, we reject appellant’s
argument that the jury was unduly confused by the DNA evidence such that, without
the DNA evidence, there is a reasonable probability that the results of the trial would
have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 (1984).
We overrule appellant’s first issue.
In his second point of error, appellant argues that the trial court abused its
discretion by denying his request for a hearing on a motion for new trial, and that he
was entitled to a hearing because he asserted reasonable grounds for relief that are
not determinable from the record.
Namely, appellant contends that, after punishment, the State disclosed to his
counsel for the first time that Mother had the cell phone from March 2014 still in her
possession. At trial, Ramirez contended that a string of text messages was sent
between Mother and another person, twenty minutes before her call to the police

after finding L.G. On appeal, he contends that these text messages may have
contained exculpatory information and that a hearing would have provided “critical
information as to the prosecutor’s knowledge of any Brady information, if it
existed.” However, the trial court denied Ramirez’s request for an evidentiary
hearing on the motion for new trial based on the cell phone.
A. Standard of Review
We review the trial court’s denial of a hearing on a motion for new trial for
abuse of discretion. Bermudez v. State, 471 S.W.3d 572, 575 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d) (citing Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim.
App. 1993). Failure to hold a hearing on appellant’s motion for new trial is an abuse
of discretion when the motion raises matters not determinable from the record, as
long as the defendant provides a supporting affidavit showing reasonable grounds
for holding that relief should be granted. Smith, 286 S.W.3d at 338. However, “[i]t
has long been held that a trial court may decide a motion for new trial based on sworn
pleadings and affidavits admitted in evidence without hearing oral testimony.”
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
B. Analysis
On December 8, 2015, the trial court entered an order overruling the
Defendant’s Motion for New Trial, and an order denying his request for a live
hearing on his motion. These orders recited they were entered after the trial court

considered “the testimony and evidence presented.” That evidence included a signed
and sworn affidavit by appellant’s trial counsel discussing the cell phone. The
affidavit described that during the discussion with the jury after the conclusion of
the trial, the State “disclosed for the first time that the actual telephone . . . was still
in [Mother’s] possession.” The affidavit additionally claimed that, at trial, Mother
had provided information about the cell phone that was inconsistent with the State’s
post-trial statement.
The record, however, does not reflect that the State had Mother’s cell phone
or that there was any exculpatory information on Mother’s cell phone. Appellant’s
counsel does not claim that he ever requested access to Mother’s cell phone prior to
trial. Mother did not deny at trial still having the cell phone. She was never asked.
Indeed, appellant’s trial counsel conceded that he made the strategic decision to not
ask her this on the stand, “being fearful the response might be, ‘I upgraded and no
longer have that phone,’ or something similar.” Appellant’s counsel likewise
conceded that he did not ask because he “knew that this phone would have been at
least 20 months old at time of trial, and it was his understanding that Mother ‘no
longer had the same phone number that she did 20 months earlier.’”
Appellant did not meet his burden to demonstrate that his motion for new trial
“rais[ed] matters not determinable from the record.” Id. The trial court could have
decided to deny the motion for new trial based on the sworn affidavit without also

hearing oral testimony. See Id. Accordingly, the trial court did not abuse its
discretion in denying a hearing on appellant’s motion for new trial.
We overrule appellant’s second issue on appeal.


We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:


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