Case: 13-40319      Document: 00512539316         Page: 1    Date Filed: 02/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 13-40319                               FILED
                                  Summary Calendar                      February 20, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

ANASTACIO ORTEGA,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-389-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Anastacio Ortega appeals his conviction for possession, with intent to
distribute, more than 1000 kilograms of marijuana. He presents numerous
issues regarding his not testifying and the testimony of a Government witness.
       Regarding Ortega’s not testifying, he claims denial of his right to testify
on his own behalf; not being properly advised of that right; and his counsel’s
being ineffective for failing to properly advise him of that right. Because


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-40319     Document: 00512539316       Page: 2   Date Filed: 02/20/2014


                                   No. 13-40319

Ortega did not object on these grounds in district court, review is only for plain
error. E.g., United States v. Bourgeois, 

, 506 (5th Cir. 2005).
Under the plain-error standard, Ortega must show a clear or obvious forfeited
error that affected his substantial rights. Puckett v. United States, 

, 135 (2009). If he shows such reversible plain error, we have the discretion
to correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. 

to testify is a fundamental, constitutional right. Rock v.
Arkansas, 

, 49-52 (1987). However, “a district court generally has
no duty to explain to the defendant that he . . . has a right to testify or to verify
that the defendant who is not testifying has waived the right voluntarily”.
United States v. Brown, 

, 258 (5th Cir. 2000), vacated and
remanded on other grounds sub nom. Randle v. United States, 

(2001). Moreover, the district court explained to Ortega that it was his right
to decide whether he would testify. In addition, Ortega stated he had decided
not to do so.
      As to Ortega’s related ineffective-assistance-of-counsel claim (IAC
claim), the record is insufficiently developed to allow consideration of that
claim. Such IAC claims generally “cannot be resolved on direct appeal when
the claim has not been raised before the district court since no opportunity
existed to develop the record on the merits of the allegations”. United States
v. Cantwell, 

, 1091 (5th Cir. 2006) (citation and internal
quotation marks omitted). For this IAC claim, a motion under 28 U.S.C. § 2255
may be available.
      Ortega also contends the court erred by overruling his objections to
testimony from a United States Border Patrol Agent regarding Ortega’s
apparent nervousness during the initial stop and inspection of his vehicle. The



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    Case: 13-40319     Document: 00512539316     Page: 3   Date Filed: 02/20/2014


                                  No. 13-40319

denial of an evidentiary objection is reviewed for abuse of discretion. E.g.,
United States v. Nguyen, 

, 571 (5th Cir. 2007). Pursuant to
Federal Rule of Evidence 701, a witness may offer an opinion that is “rationally
based on the witness’s perception”, is “helpful to clearly understanding the
witness’s testimony or to determining a fact in issue”, and is “not based on
scientific, technical, or other specialized knowledge”.
      The court did not abuse its discretion by denying Ortega’s objections to
this testimony.   First, the majority of the testimony simply described the
behavior the Agent observed, without offering any opinion about its meaning
or Ortega’s state of mind. Second, the testimony that Ortega seemed, inter
alia, “a bit anxious to leave” or “nervous”, did not violate Rule 701. The Agent’s
opinion was rationally based on his perception of Ortega’s behavior, helpful to
the jury in determining whether Ortega had knowledge of the marijuana
hidden in his trailer, and based on his experience and common human
understanding, rather than any “scientific, technical, or other specialized
knowledge.” Fed. R. Evid. 701.
      AFFIRMED.




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