Affirm and Memorandum Opinion filed April 21, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00254-CR

ALFREDO RAMIREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1396938

M E M O R A N D U M O P I N I O N

A jury convicted appellant Alfredo Ramirez of felony assault on a family 

member.

1

The court sentenced him to twenty years’ confinement. From that

judgment, appellant brings this appeal raising two issues: (1) the trial court erred by 

limiting cross-examination to exclude evidence of the complainant’s alleged bias and 

motive to testify falsely in violation of appellant’s rights under the Confrontation 

Clause of the United States Constitution; and (2) the recusal-hearing judge erred by 

 

1 We have redacted personally-identifying information of the complainant of family 

violence. See Tex. Code Crim. Proc. Ann. art. 57B.03(a) (West 2014). 
2

failing to recuse a visiting judge based on the visiting judge’s prior relationship with 

defense counsel. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The complainant met appellant in August 2010, when the complainant worked 

as a shipping clerk in Georgia and appellant was a truck driver from Houston. The 

complainant married appellant, had a daughter with him, and moved to Houston in 

February 2011. By July, 2013, their living situation had deteriorated; appellant had 

been out of work, they were living in a motel, and they were surviving by

panhandling. At that time, their daughter, M.R., was 17-months old. 

In response to a call regarding M.R.’s living conditions, on July 16, 2013, 

Latoya Wright, a social worker from Child Protective Services (“CPS”), made a visit 

to the couple’s motel room. Wright met the complainant and M.R. and noticed the 

room had one bed, a small, empty refrigerator, and some canned goods. The 

complainant had a broken arm and acted nervous; she denied any abuse. Wright 

asked the complainant to contact appellant and ask him to return to the motel. When 

appellant returned to the motel, he became “hostile” and “argumentative” with 

Wright, blaming the motel owners for the facilities. At the end of the meeting, the 

complainant and appellant agreed to temporarily place M.R. with appellant’s mother

through CPS. Wright invited the complainant to follow her to appellant’s mother’s 

house and to assist M.R but when appellant signaled her not to go, the complainant

declined. 

The complainant sat on the edge of the bed in the motel room and through the 

window watched Wright drive away with M.R. The complainant testified that is 

when appellant attacked her; he straddled her on the bed and covered her face with a 

pillow, blocking her mouth and nose. According to the complainant’s trial testimony, 

she could not breathe and felt a ringing sensation in her ears. She struggled to fight 
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him off, which was difficult due to the complainant’s broken arm. When the pillow 

came off the complainant’s face, appellant grabbed the back of the complainant’s 

hair. Appellant put his other hand around the complainant’s throat and applied 

pressure to her throat and neck. The complainant testified that she could not breathe. 

She further stated that the episode caused her pain, ringing in her ears, and dizziness. 

The complainant broke free from appellant and ran out of the door to her truck in the 

parking lot. 

The complainant went to stay with a family friend. The next day, she called 

Wright and told her what had happened. The complainant’s throat was raspy and 

hoarse. The complainant did not immediately report the incident to the police. She 

was reluctant to file charges against appellant while M.R. was living with appellant’s 

mother, in part, because appellant had family all over Mexico. The complainant was 

afraid that she would never see M.R. again if she filed charges against appellant 

before her daughter was in a safer CPS location. 

After the incident in the motel room, the complainant received numerous text 

messages from appellant. In the texts, appellant expressed remorse for hurting the 

complainant. In one text, he wrote, “Don’t be scared, please. If you truly don’t want 

me anymore, I understand. Just stop punishing me. God knows I never meant to hurt 

you. It just got out of hand. I do need therapy, Xanax or something.” According to 

the complainant, after speaking with the CPS caseworker, she quit responding to 

appellant’s texts and filed for a protective order. On July 26, 2013, M.R. was 

released from appellant’s mother to a friend of the complainant’s. On August 1, 

2013, the complainant reported the motel incident to the Houston Police Department. 

She reported to police that appellant had broken her arm previously. 

Appellant was charged with felony assault on a family member. When the case 

was called to trial on Friday, May 16, 2014, the parties conducted voir dire and a jury 
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was selected with trial to resume on Tuesday, May 20, 2014. On Monday, May 19, 

2014, the parties were notified that Judge Mendoza, who had been presiding, had 

become ill and that a visiting judge, Judge Brian Rains, had been appointed to preside 

over the trial. Appellant objected to Judge Rains’ assignment and filed a motion to 

recuse. Judge Rains declined to recuse himself and referred the issue to an 

administrative judge for further action. After conducting a hearing, the 

administrative judge, Judge Carroll Wilborn, denied appellant’s motion to recuse. 

The trial resumed with Judge Rains presiding. The jury found appellant guilty 

of assault of a family member by impeding breathing. Several months later, on 

March 2, 2015, Judge Mendoza sentenced appellant to an enhanced punishment of 

twenty years’ confinement. Appellant now challenges his conviction in this appeal. 

II. ISSUES AND ANALYSIS

A. Did the reviewing judge abuse his discretion by denying appellant’s 

motion to recuse?

1. Standard of review

We review the denial of a motion to recuse under an abuse-of-discretion 

standard. DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004); Arnold v. 

State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993). A court abuses its discretion 

only if its ruling is outside the “zone of reasonable disagreement” or if it fails to apply 

proper guiding rules and principles. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. 

App. 1992); see Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011). Absent 

a clear showing to the contrary, we presume the trial court was neutral and detached. 

See Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, 

pet. ref’d). 
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2. The rules governing recusal

A Texas judge may be removed from a case if the judge is (1) constitutionally 

disqualified, (2) subject to a statutory strike, (3) subject to statutory disqualification, 

or (4) subject to recusal under rules promulgated by the Supreme Court of Texas. 

Gaal, 332 S.W.3d at 452; Rhodes v. State, 357 S.W.3d 796, 799 (Tex. App.—

Houston [14th Dist.] 2011, no pet.). Rule 18b(2) of the Texas Rules of Civil 

Procedure sets forth the law specifically pertaining to recusal of judges, including 

recusals in criminal proceedings. Tex. R. Civ. P. 18b(2); Gaal, 332 S.W.3d at 452–

53 & n. 12. The rule states in relevant part: 

A judge shall recuse himself in any proceeding in which: (a) his 

impartiality might reasonably be questioned; [or] (b) he has a personal 

bias or prejudice concerning the subject matter or a party, or personal 

knowledge of disputed evidentiary facts concerning the proceeding....

Tex. R. Civ. P. 18b(2). Subsection (a) generally applies only when it appears that the 

judge “harbors an aversion, hostility or disposition of a kind that a fair-minded person 

could not set aside when judging the dispute.” Gaal, 332 S.W.3d at 453 (quoting 

Liteky v. United States, 510 U.S. 540, 558 (1994) (Kennedy, J., concurring)); accord

Rhodes, 357 S.W.3d at 799–800. Subsection (b) more specifically addresses what the 

judge knows and feels. Id.

Recusal is generally not required purely on the basis of judicial rulings, 

remarks, or actions, as they would not on their own typically “evidence the degree of 

favoritism or antagonism required;” these usually will be grounds for reversal if in 

error, but not for recusal. Gaal, 332 S.W.3d at 454 (quoting Liteky, 510 U.S. at 555). 

On the other hand, recusal is appropriate if the facts are such that a reasonable person 

would harbor doubts as to the impartiality of the trial judge. Kemp, 846 S.W.2d at 

305. The evidence must be sufficient to overcome the presumption of judicial 

impartiality. See Kemp, 846 S.W.2d at 306; Abdygapparova v. State, 243 S.W.3d 
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191, 198–99 (Tex. App.—San Antonio 2007, pet. ref’d). Further, the bias must be 

“of such nature, and to such extent, as to deny the defendant due process of law.” 

Kemp, 846 S.W.2d at 305; see also Abdygapparova, 243 S.W.3d at 199 (noting that 

this is a “high standard”). The presiding judge at a recusal hearing determines the 

credibility of the evidence.

3. No abuse of discretion by the reviewing judge.

At the recusal hearing, appellant argued that recusal of Judge Rains was proper 

and that a reasonable person would have doubts about Judge Rains’ impartiality for 

two reasons: (1) appellant’s counsel, before 2008, was successful in recusing Judge 

Rains from a matter and filing a grievance against Judge Rains;2and (2) in or around 

2008, appellant counsel’s wife ran for judicial office and lost against Judge Rains in 

the Republican primary. Appellant failed to provide any documentary proof of these 

events. 

Judge Rains testified that there was no reason he could not be fair in the 

proceeding, a statement noted by the reviewing judge when he denied the motion to 

recuse. Moreover, Judge Rains did not testify to any personal bias against appellant 

or his attorney in this case, and did not testify to any lingering hostility against 

appellant’s attorney based on the past proceedings, which occurred more than six 

years before appellant’s trial. 

As set forth in the record, the reviewing judge followed appropriate guiding 

rules and principles and reached a decision based on information presented at the 

hearing that was within the zone of reasonable disagreement. See Kemp, 846 S.W.2d 

at 306; Abdygapparova, 243 S.W.3d at 197–98. Under these circumstances, it was 

within the reviewing judge’s discretion to deny appellant’s motion to recuse. See id. 

 

2

These matters took place before 2008, and involved the manner in which Judge Rains 

handled bond and other matters in aggravated sexual-assault cases.
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Therefore, we overrule appellant’s second issue.

B. Did appellant preserve error regarding his Confrontation-Clause

complaint? 

In his first issue, appellant asserts that his rights under the Confrontation 

Clause of the Sixth Amendment of the United States Constitution were violated 

during the guilt-innocence phase when the trial court limited cross-examination of the 

complainant. During cross-examination, appellant’s counsel made several attempts 

to ask the complainant questions about her children in Georgia, including whether the 

State of Georgia took the complainant’s daughters away from her “back in the late 

‘90’s” for neglect, how the complainant’s daughters ended up living with other 

people, how long her daughters lived apart from her, and, in reference to Wright’s 

visit, “that’s not the first time you’ve had contact with Protective Services regarding 

children of any state . . . .” 

Each time appellant attempted to broach the subject of the complainant’s thenadult children in Georgia, the prosecutor objected based on relevance or speculation

and the trial court sustained the objection. The trial court instructed appellant’s 

counsel to move along. On a few occasions, contemporaneous to the judge’s 

instruction to keep moving forward in the case, appellant’s counsel requested a 

hearing outside the presence of the jury, which the trial court denied. Appellant did 

not raise any constitutional issue during these exchanges. Nor did appellant mention 

the Confrontation Clause or assert any other constitutional complaint. Appellant did 

not voice any complaint that his rights were being violated by the trial court’s 

limitation on cross-examination. 

1. Failure to object with sufficient specificity 

A defendant must preserve error in the trial court to argue on appeal that his 

right to confront witnesses was violated. Anderson v. State, 301 S.W.3d 276, 280 
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(Tex. Crim. App. 2009); Tex. R. App. P. 33.1(a)(1). To preserve error, a defendant 

must make a timely, specific objection. Layton v. State, 280 S.W.3d 235, 238–39 

(Tex. Crim. App. 2009); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 

2006, pet. ref’d) (holding that error must be preserved as to complaint based on 

Confrontation Clause by a timely and specific objection). A minor reference to crossexamination is insufficient to preserve a Confrontation-Clause objection if the 

objection made in the trial court could encompass an evidentiary objection as well as 

a Confrontation–Clause objection. Austin v. State, 222 S.W.3d 801, 811 (Tex. 

App.—Houston [14th Dist.] 2007, pet. ref’d). A reviewing court should not address 

the merits of an issue that has not been preserved for appeal. Wilson v. State, 311 

S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g).

Appellant’s generalized objection and request for a hearing outside the 

presence of the jury regarding the limitations on cross-examination of the 

complainant (i.e., excluding cross-examination related to her involvement with childprotective authorities in Georgia in the late-1990’s) is insufficient to preserve an error 

based on the Confrontation Clause. See Austin, 222 S.W.3d at 811; Stewart v. State, 

995 S.W.2d 251, 255 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (failure to 

object on constitutional grounds waives error). 

2. Failure to raise timely objection 

A party must assert the objection as soon as the basis for it becomes apparent. 

Tex. R. Evid. 103(a)(1); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); 

see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing 

policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 

(Tex. Crim. App. 2002) (“We have consistently held that the failure to object in a 

timely and specific manner during trial forfeits complaints about the admissibility of 

evidence. This is true even though the error may concern a constitutional right of the 
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defendant.” (citations omitted)); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex. 

App.—Fort Worth 2012, pet. ref’d).

Appellant waited until after the State had rested before asserting that the trial 

court had violated his constitutional rights by excluding certain testimony and 

evidence during cross-examination of the complainant. Only after counsel completed 

the jury charge conference and the trial judge asked if counsel had any other issues 

before the jury did appellant’s counsel respond, stating as follows:

Yes, sir. I’d like to state that by limiting the cross-examination of the 

[the complainant] Your Honor, during the State's case in chief, we 

submit that that ruling, with regard to any questions pertaining to the 

additional children of [complainant], was a denial of the defendant's

constitutional right to confront, cross-examine his accuser. That violates 

his Sixth and, I believe, 14th Amendments to the United States 

Constitution, by improperly limiting cross-examination. As well as,

Article 1, Section 10, of the Texas Constitution. It also denies the 

defendant the right to fully and adequately present his defense. Again, 

in violation of the Sixth and 14th Amendments to The United States 

Constitution, Article 1, Section 10 of the Texas Constitution. Which I 

believe, also guarantees a defendant due process of law. That is, a fair 

trial and the ability to present his defense. What I want to do is make an 

offer of proof with regard to what I would have asked [complainant], 

when she appeared as a witness for the State during cross-examination. 

My purpose for asking these questions –

Appellant counsel’s belated attempt to raise a Confrontation-Clause violation

did not preserve error. An objection must be made as soon as the basis for the 

objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. 

App.), cert. denied, 522 U.S. 917 (1997).

Because appellant neither lodged a specific nor timely objection based on the 

Confrontation Clause during the cross-examination of the complainant, he has failed 

to preserve his complaint for appellate review. Anderson v. State, 301 S.W.3d 276, 

280 (Tex. Crim. App. 2009) (deprivation of meaningful opportunity to present 
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complete defense is right subject to forfeiture); see also Broxton v. State, 909 S.W.2d 

912, 918 (Tex. Crim. App. 1995) (appellant forfeited claim he was denied right to 

present defense and right to due process and due course of law under federal and state 

constitutions because he failed to lodge proper objection at trial); see also Hayes v. 

State, 124 S.W.3d 781, 786–87 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 161 

S.W.3d 507 (Tex. Crim. App. 2005) (appellant failed to preserve complaint that 

exclusion of evidence denied constitutional right to due process by preventing 

presentation of complete defense because different argument raised at trial). 

Accordingly, we overrule appellant’s first issue.

III. CONCLUSION

The visiting judge did not abuse his discretion in denying appellant’s motion to 

recuse. Appellant did not preserve error regarding his objection under the 

Confrontation Clause. Having overruled both of appellant’s issues, we affirm the 

trial court’s judgment.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justice Boyce and Justice Wise.

Do Not Publish — TEX. R. APP. P. 47.2(b).