Ricardo Franco v. State
08-15-00254-CR
| Tex. App. | Mar 14, 2017Background
- Defendant Ricardo Franco was convicted by a jury of sexual assault (penetration) after party evidence that he was found on top of a motionless 20-year-old victim, unclothed below the waist; jury assessed 4 years.
- Medical evidence was inconclusive for recent intercourse; no semen matched, limited unidentified DNA, and toxicology negative for most drugs (GHB not tested).
- At the hospital, Franco allegedly made an inculpatory statement in the ER: "I ate her out for ten seconds. Then I f---ed her." An ER technician and an officer testified to the remark.
- Defense objected to admission of the statement as hearsay and under other grounds; the statement was admitted and later emphasized by the State to rebut lack-of-penetration defense.
- On appeal Franco raised: (1) improper admission of his hospital statement as hearsay/under Rule 803(4); and (2) ineffective assistance of trial counsel (misstatements of law, personal attacks, and procedural error in a recusal motion).
Issues
| Issue | Franco's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of ER statement (hearsay / Rule 803(4)) | Statement was hearsay and not admissible under medical-diagnosis/treatment exception | Statement is admissible as non-hearsay party-opponent; alternatively error waived by failure to object when statement repeated through technician | Held: Statement was non-hearsay as Franco’s own statement offered against him; even if hearsay, error waived when same testimony came in without objection |
| Preservation of evidentiary objection | Objection at officer testimony preserved issue | State: objection not maintained when similar testimony elicited later without objection | Held: Appellant forfeited the complaint because substantially same testimony later admitted without objection |
| Ineffective assistance — alleged misstatements of law by trial counsel | Counsel made multiple legal errors (improper objections, wrong predicates, charging requests) that fell below reasonable standards and prejudiced outcome | Sporadic legal arguments and unsuccessful objections are within strategic advocacy; no showing of prejudice | Held: Performance not shown deficient; no Strickland prejudice demonstrated |
| Ineffective assistance — personal attacks and defective oral recusal motion | Counsel’s courtroom comments and failure to file a proper written recusal motion demonstrated incompetence and prejudiced defendant | Remarks did not affect proceedings; oral recusal lacked merit and would have failed; no prejudice shown | Held: No ineffective assistance—remarks did not alter judge’s conduct; recusal motion was meritless and procedurally flawed, so no prejudice |
Key Cases Cited
- Trevino v. State, 991 S.W.2d 849 (Tex. Crim. App. 1999) (a defendant’s out-of-court statement offered against him is not hearsay under Rule 801(e)(2)(A))
- Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) (two-part test for medical diagnosis/treatment hearsay exception)
- Page v. State, 213 S.W.3d 332 (Tex. Crim. App. 2006) (ruling must be upheld if correct under any applicable theory known to court at the time)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance: deficient performance + prejudice)
- Ex parte White, 160 S.W.3d 46 (Tex. Crim. App. 2004) (counsel not ineffective for failing to object to otherwise admissible evidence)
- Lane v. State, 151 S.W.3d 188 (Tex. Crim. App. 2004) (failure to object each time substantially identical testimony is offered forfeits complaint)